Sunday, March 01, 2020

Another timely reminder of NY Gov Cuomo ugly clemency record

This recent New York Daily News piece, headlined "Cuomo, miserly on clemencies: Thousands of elderly New Yorkers who pose no risk are locked in state prison," provides another reminder that New York's Gov continues to fail to lead on the clemency front after having talked big in the past.  Here are excerpts:

President Trump’s recent announcement of clemency for a handful of white-collar offenders was a reminder that proudly progressive New York shows much less mercy than the Trump administration to people on the wrong side of the law.

“Donald Trump commuted the sentences of four people in federal prison; representing more commutations than Gov. Cuomo has issued in 2019 and 2020 combined,” said a statement from the advocacy group Release Aging People in Prison. “With more than 9,000 New Yorkers in prison serving life sentences and over 10,000 incarcerated older adults languishing behind bars, there is ample opportunity for Cuomo to do the right thing.”

As the state Legislature heads into the thick of the annual bargaining over funding various programs, lawmakers should press Cuomo to save taxpayer money — and also make a statement of New York values — by granting clemency to more than a tiny handful of state prisoners and taking steps to release sick, aging prisoners who post no threat to public safety.

Right now, nearly 20% of the approximately 46,000 people in New York prisons are serving life sentences.  Many are getting old and sick, needing medical care. Health-care spending on the most seriously ill elderly inmates can exceed $130,000 per patient, according to a 2015 report by the Center for Justice at Columbia.

A lot of these prisoners, mostly men, were convicted of horrific, violent crimes decades ago.  Everything we know about violent crime — including records stretching back to the 1920s — confirms that senior citizens who have been locked away for 20 or 30 years are extremely unlikely to commit additional offenses. So why are we paying top dollar for the increasingly expensive medical care and incarceration of elderly people?...

Better yet, the Legislature should pass the Elder Parole Act, which died in committee last session.  The bill would allow prisoners over 55 — who have served at least 15 years behind bars — to go before the state parole board and argue for their release....

Our state has allegedly eliminated the death penalty, yet we have effectively sentenced people to death by incarceration.  New York’s governor boasts of being progressive, but is showing less mercy than Donald Trump.  And at a time when we face a multi-billion-dollar deficit, New York continues to lock up reformed and rehabilitated people in the name of vengeance.  Surely we can do better.

Prior related posts:

March 1, 2020 in Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, February 28, 2020

Notable new survey and resources concerning sentencing second looks and second chances

Fair and Just Prosecution and The Justice Collaborative this week released a new survey and additional materials on the hot topic of sentencing reviews and how prosecutors might approach second-look sentencing. This report, titled "Policies & Polling On Reducing Excessive Prison Terms," has these passages in its Executive Summary setting out the context and previewing some of the contents:

In recent years, despite an emerging bipartisan consensus around the need for criminal justice reform, there has been insufficient action to address people serving lengthy sentences who no longer pose a serious risk to public safety.  To gauge popular support for policies that provide opportunities for people serving long prison terms to seek release and return to their communities, we conducted a national survey of American voters.

Our results indicate that such policies have overwhelming support among American voters, regardless of ideology or party affiliation.  Voters believe that sentencing policies and practices should be closely connected to public safety — and that people who can be safely returned to their communities should not be warehoused because of excessive prison terms that waste taxpayer dollars and fail to reflect current values.  Voters believe that people deserve a second chance, and they support sentence-review policies that can provide it.

On the whole, voters believe that reviewing and reducing lengthy sentences serves a variety of important policy goals, including: bringing U.S. sentencing more in line with international standards, addressing racial disparities, reducing costs, correcting older excessive sentences that are out of step with current practices, and ensuring that people who pose little risk of committing crimes are not growing old behind bars, separated from their families and communities.

We sought public sentiment on two policies for sentence review that are gaining increased attention and that are the subject of a new policy brief, “Revisiting Past Extreme Sentences: Sentencing Review and Second Chances,” released today by Fair and Just Prosecution.  Those mechanisms include “second-look” legislation (see Appendix A) and sentence review by elected prosecutors (see Appendix B).  The survey results found strong support for both of these reforms:

  • Overall, 69% of voters support “second look” legislation that allows for “the reexamination of old sentences to provide a second chance for people who have been in prison for more than ten years and who can be safely returned to the community.”
  • Support for these reforms is bipartisan and cuts across geography and ideology. Support among “very conservative” voters for second-look legislation is 63% while support among “very liberal” voters is 82%. These numbers track support along party lines, with 81% of Democrats and 64% of Republicans supporting.
  • Similarly, two-thirds (67%) of voters support “elected prosecutors reexamining past sentences to provide a second chance to people who have been in prison for ten years or longer and who can be safely returned to the community.”

In addition to the Fair and Just Prosecution's policy brief, The Justice Collaborative has also released another great document titled "Model District Attorney Sentence Review Guidelines."  Here I will provide links to these two important new second look documents:

I cannot help but note that some years ago I gave a keynote speech at a conference focused on the work of prosecutors that suggested they should be much more involved in reviewing past sentence.  That speech got published as Encouraging (and Even Requiring) Prosecutors to Be Second-Look Sentencers, 19 Temple Political & Civil Rights L. Rev. 429 (2010).  It is nice to see that it only took about a decade for this idea to come into vogue.

February 28, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Thursday, February 27, 2020

Will SCOTUS take up another case to address other post-Miller JLWOP issues now that Malvo has gone away?

As noted in this post , earlier this week Virginia enacted new legislation to make all juvenile offenders eligible for parole.  One effect of that new legislation was to moot, more than four months after oral argument, the Supreme Court's consideration of the Malvo case which concerned whether infamous DC sniper Lee Malvo was constitutionally entitled to be considered for resentencing since he was given LWOP for a series of murders committed when he was 17.  Many were wondering whether and how the Justices might use the Malvo case to address broader Eighth Amendment concerns, because the Malvo case touched on, but did not necessarily require resolution of, various issues related to past SCOTUS jurisprudence concerning juvenile sentencing.

Though the dispute in Malvo has gone away, the array of questions about how properly to apply Miller and related SCOTUS precedents in sentencing juveniles to extreme sentencing terms has not.  And it seems quite possible that some Justices, having become sufficiently involved in working through draft opinions for resolving Malvo, may now be eager to now take up a replacement case.  Kent Scheidegger sure seems eager for SCOTUS to take up a replacement case, as he has two new posts over at Crime & Consequences highlighting the range of potential replacements for Malvo:

Because I am always keen for SCOTUS to take up more sentencing issues and to clarify its constitutional jurisprudence, I am hopeful we will see SCOTUS take up another case to address post-Miller issues ASAP.  But SCOTUS often has a way of dashing my hopes (e.g., its recent acquitted conduct cert denials), so I make no firm predictions.

February 27, 2020 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Is Prez Trump legally unable to grant clemency to Roger Stone?

The question in the title of this post is prompted by this new Politico Magazine piece by Corey Brettschneider headlined "Why President Trump Can’t Pardon Roger Stone."  Here are excerpts:

Speculation that President Donald Trump might pardon Roger Stone has reached a fever pitch after Stone’s sentencing by a federal judge and the president’s repeated hints that he thinks the verdict unfair.  But fortunately, the Constitution’s framers imagined this nightmare scenario — a suspected criminal president pardoning a co-conspirator — and they put in the Constitution language to legally prohibit the pardon power in exactly this kind of case.

Both the plain meaning of the Constitution’s text and the historical evidence show that once a president has been impeached, he or she loses the power to pardon anyone for criminal offenses connected to the articles of impeachment — and that even after the Senate’s failure to convict the president, he or she does not regain this power.

Under Article II, Section II of the Constitution, the president is given the “power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.”  Pardons are supposed to be used as acts of mercy.  The framers thought of the pardon power as a “benign prerogative”—prerogative because it was mostly unchecked by courts or Congress, but benign because presidents would use it for the public good.

But the framers knew not to place blind trust in the president to wield the power justly. That’s why they explicitly forbade a president from exercising the pardon power in “cases of impeachment.”  The clause prevents the worst abuse of the pardon power: a president’s protecting cronies who have been convicted of crimes related to the president’s own wrongdoing....

The limit on pardons for co-conspirators wouldn’t affect many of the president’s pardons. Pardoning convicted criminals like former Illinois Governor Rod Blagojevich might be ill-advised, but it is still permitted.  By contrast, pardoning longtime adviser Roger Stone would not be permitted, as his crimes relate directly to the impeachment case....

Inevitably, some will argue that an impeached president should regain the power to grant clemency to his alleged co-conspirators in cases of acquittal by the Senate.  That ignores not only the framers’ clear intent, but also the plain text of the Constitution.

The framers deliberately used the phrase “cases of impeachment,” not “conviction.” One reason why is simple: A president convicted by the Senate would be removed from office, and thus unable to pardon anyone. As such, there would be no reason for the Constitution to curb a convicted president’s pardon power. No exception to the pardon power needs to be granted, because no such power exists.

Moreover, the framers provided no explicit avenue for him to regain the power they took away after a House impeachment vote.  Time limits are common in the Constitution—think of the president’s four-year term — and the absence of one connected to the pardon power suggests that the power is not in fact lost for a limited duration.  In the absence of an explicit reinstatement of pardon power in the text, the strong presumption has to be that it is still lost.

I am generally chary about any efforts to place novel limits on clemency powers, but this commentary is making an interesting textualist and originalist-based claim here. In the end, I think political interest, not legal concerns, will shape how Prez Trump uses his clemency power here (and elsewhere). But if Prez Trump does give some form of clemency to Stone, we now can see the terms of inevitable legal challenges to that effort.

Prior related posts:

February 27, 2020 in Clemency and Pardons, Sentences Reconsidered, White-collar sentencing, Who Sentences | Permalink | Comments (3)

"Sentencing is Dang Hard... And So..."

The title of this post is the (silly?) title that I gave to a speech I delivered a few years ago when having the honor to receive the 2018 Richard P. Kern Memorial Award from the National Association of Sentencing Commissions. A cleaned-up version of the speech appears now in the February 2020 issue of the Federal Sentencing Reporter, and I have posted the text here via SSRN. Here is the short piece's abstract:

This essay, adapted from a speech upon receipt of the 2018 Richard P. Kern Memorial Award from the National Association of Sentencing Commissions, details why sentencing is “dang hard” and explores implications of that reality.  The essay argues that the challenges of sentencing not only demand that all jurisdictions have a sentencing commission as an essential permanent agency, but also call for these commissions always to think big and to strive to work deep and wide to study all facets of modern criminal justice systems.  The essay also contends that sentencing errors may be quite common and that, even if we manage to get sentencing “right” at the outset, changes in society and in individuals can make even “right” sentences wrong over time.  Sensible humility about the likelihood of sentencing errors further suggests, for example: at the rule-making stage, having sentencing laws include sunset provisions and having sentencing commissions review and audit major guidelines and related sentencing practices on a regular basis; at the case-specific stage, having far more robust substantive appellate review of sentences and more robust mechanisms for parole and judicial reconsideration and clemency, and even developing more creative means to apply and revise different forms of punishment as time passes and new information is gathered.

February 27, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, February 26, 2020

Colorado on the verge of abolishing the state's death penalty

As reported in this local article, the "bill to repeal Colorado’s death penalty cleared its final legislative hurdle Wednesday afternoon in a 38-27 vote in the House of Representatives, and the governor’s office says he will sign the measure." Here is more:

The measure passed its third reading Wednesday morning after passing its second reading early Tuesday morning after an 11-hour debate period.  There was more than five hours of emotional testimony from lawmakers before the final vote Wednesday.  Passage of the bill, HB20-100, was all-but a foregone conclusion after the bill cleared the Senate late last month because of the strong Democratic majority in the House.

Some Republicans — and Democrats — made their final pleas to send the question of whether to repeal the death penalty to voters, as they have sought in prior discussions about the bill.  Rep. Tim Geitner again tried to offer an amendment to refer the question to voters — but that attempt failed despite five Democrats voting for it.  Rep. Tom Sullivan, a Democrat whose son was killed in the Aurora theater shooting, was also among those who opposed passage of the measure during prior debate this week.

Much of the opposition from lawmakers came because they feel families of murder victims will not get closure if the death penalty is not on the table for the killers.  But many Democrats pointed that there are other options, which they say are more cost-effective, than capital punishment....

In the end, three Democrats voted against the measure — Reps. Kyle Mullica, Brianna Titone and Tom Sullivan — all of whom said they would be voting "no" during Wednesday's debate.  Zero Republicans voted for the measure.  But Democrats hold an advantage in the House and had the votes to pass the bill Wednesday.

Colorado is now the 22nd state to abolish the death penalty.

The measure repeals the state’s death penalty for any crimes charged by prosecutors on or after July 1, 2020. There are currently three people on Colorado’s death row: Robert Ray, Sir Mario Owens and Nathan Dunlap.  Ray and Owens were convicted of killing Javad Marshall-Fields, the son of Sen. Rhonda Fields, D-Aurora, and Marshall-Fields fiancée in 2005, and Fields’ opposition to the repeal has been a key point of contention in this year’s debate after it caused last year’s repeal measure to fail.  New Republican sponsorship in the Senate offset Fields’ opposition to the measure and allowed it to pass the Senate.

The 2020 repeal measure was the sixth attempt by lawmakers in recent years to get rid of the death penalty in Colorado — but the first to succeed.  A spokesperson for Polis confirmed Tuesday night that the governor will sign the bill.

February 26, 2020 in Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

SCOTUS unanimously clarifies (in narrow way) that no special words are needed to preserve substantive reasonableness review

In this post when cert was granted in Holguin-Hernandez last June, I rejoiced because it has been nearly a decade since SCOTUS has said anything significant about reasonableness review.  But, recognizing that the case concerned only an appellate procedural issue, I was prepared for the ultimate ruling to be a narrow one.  And this morning in Holguin-Hernandez v. United States, No. 18–7739 (S. Ct. Feb. 26, 2020) (available here), the Justices through a unanimous opinion said about as little as possible while ruling for the defendant.  Here are some key excerpts from Justice Breyer's opinion for the Court, with my favorite and least favorite passages bolded (and lots of cites removed):

Congress has instructed sentencing courts to impose sentences that are “‘sufficient, but not greater than necessary, to comply with’” (among other things) certain basic objectives, including the need for “just punishment, deterrence, protection of the public, and rehabilitation.” Dean v. United States, 581 U.S. ___, ___ (2017)... If the trial court follows proper procedures and gives adequate consideration to these and the other listed factors, then the question for an appellate court is simply, as here, whether the trial court’s chosen sentence was “reasonable” or whether the judge instead “abused his discretion in determining that the §3553(a) factors supported” the sentence imposed....

Judges, having in mind their “overarching duty” under §3553(a), would ordinarily understand that a defendant [advocating for a shorter sentence] was making the argument (to put it in statutory terms) that the shorter sentence would be “‘sufficient’” and a longer sentence “‘greater than necessary’” to achieve the purposes of sentencing. Nothing more is needed to preserve the claim that a longer sentence is unreasonable.

We do not agree with the Court of Appeals’ suggestion that defendants are required to refer to the “reasonableness” of a sentence to preserve such claims for appeal.  The rulemakers, in promulgating Rule 51, intended to dispense with the need for formal “exceptions” to a trial court’s rulings....  The question is simply whether the claimed error was “brought to the court’s attention.” Rule 52(b).  Here, it was.

The Court of Appeals properly noted that, to win on appeal, a defendant making such a claim must show that the trial court’s decision was not “reasonable.” Gall, 552 U.S., at 56.  But that fact is not relevant to the issue here.  Our decisions make plain that reasonableness is the label we have given to “the familiar abuse-of-discretion standard” that “applies to appellate review” of the trial court’s sentencing decision. Id., at 46 (emphasis added); ... The substantive standard that Congress has prescribed for trial courts is the “parsimony principle” enshrined in §3553(a).  Dean, 581 U.S., at ___ (slip op., at 4).  A defendant who, by advocating for a particular sentence, communicates to the trial judge his view that a longer sentence is “greater than necessary” has thereby informed the court of the legal error at issue in an appellate challenge to the substantive reasonableness of the sentence.  He need not also refer to the standard of review.

The Government and amicus raise other issues.  They ask us to decide what is sufficient to preserve a claim that a trial court used improper procedures in arriving at its chosen sentence.  And they ask us to decide when a party has properly preserved the right to make particular arguments supporting its claim that a sentence is unreasonably long.  We shall not consider these matters, however, for the Court of Appeals has not considered them.  We hold only that the defendant here properly preserved the claim that his 12-month sentence was unreasonably long by advocating for a shorter sentence and thereby arguing, in effect, that this shorter sentence would have proved “sufficient,” while a sentence of 12 months or longer would be “greater than necessary” to “comply with” the statutory purposes of punishment. 18 U.S.C. §3553(a).

I am pleased to see that this decision clarifies, yet again, that district judges under Booker are duty-bound to impose sentences that are "sufficient, but not greater than necessary, to comply with" statutory requirements.  A full 15 years after Booker, more than a few courts still talk about their obligation to impose a "reasonable" sentence even though this is an appellate standard of review.  Kudos to SCOTUS for stressing in this case that "the substantive standard that Congress has prescribed for trial courts is the 'parsimony principle' enshrined in §3553(a)."

But I am displeased to see that this decision refuses to address any other reasonableness review issues.  I respect the Court's decision to be circumspect in a case only raising a small issue, but there are thousands of sentence appeals each year that could benefit from additional clarity about how reasonableness review should proceed and how various issues are properly (or improperly) preserved.

Interestingly, and perhaps not surprisingly, Justice Alito (joined by Justice Gorsuch), feels compelled to write a short concurring opinion in order "to emphasize what we are not deciding."  His opinion asserts that "the plain-error rule serves many interests" and he suggests that there are many ways even after Holguin-Hernandez to apply this limited review standard to various sentencing claims on appeal.

February 26, 2020 in Booker and Fanfan Commentary, Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

SCOTUS unanimously rejects effort to narrow ACCA-predicate drug crimes in Shular

Much of the never-ending Armed Career Criminal Act litigation concerns the reach of ACCA's "violent felony" definitions as predicate priors for applying the statute's extreme 15-year mandatory minimum term.  But the Supreme Court addressed unanimously today in Shular v. United States, No. 18–6662 (S. Ct. Feb. 26, 2020) (available here), the reach of the ACCA predicate provision defining "serious drug offense."  And while defendants have often prevailed on challenges to broad application of "violent felony," the unanimous opinion by Justice Ginsburg in Shular turns away a defense effort to limit what qualifies as a "serious drug felony."  Here is the full start to the Court's opinion:

The Armed Career Criminal Act (ACCA), 18 U.S.C. §924(e), mandates a 15-year minimum sentence of imprisonment for certain defendants with prior convictions for a “serious drug offense.”  A state offense ranks as a “serious drug offense” only if it “involv[es] manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance.” §924(e)(2)(A)(ii).  This case concerns the methodology courts use to apply that definition.

While the parties agree that a court should look to the state offense’s elements, they disagree over what the court should measure those elements against.  In the Government’s view, the court should ask whether those elements involve the conduct identified in §924(e)(2)(A)(ii) — namely, “manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance.”  Petitioner Eddie Lee Shular, however, contends that the terms employed in the statute identify not conduct, but offenses.  In his view, those terms are shorthand for the elements of the offenses as commonly understood.  According to Shular, the court must first identify the elements of the “generic” offense, then ask whether the elements of the state offense match those of the generic crime.

Under the approach he advances, Shular argues, his sentence is not subject to ACCA enhancement.  The generic offenses named in §924(e)(2)(A)(ii), as Shular understands them, include a mens rea element of knowledge that the substance is illicit.  He emphasizes that his prior convictions were for state offenses that do not make knowledge of the substance’s illegality an element of the offense; the state offenses, he therefore maintains, do not match the generic offenses in §924(e)(2)(A)(ii).

The question presented: Does §924(e)(2)(A)(ii)’s “serious drug offense” definition call for a comparison to a generic offense?  We hold it does not.  The “serious drug offense” definition requires only that the state offense involve the conduct specified in the federal statute; it does not require that the state offense match certain generic offenses.

Even for hard-core ACCA fans (and you know who you are), there does not seem to be all that much of great significance in Shular (beyond a reminder that rulings for prosecutors can still sometimes garner unanimity from this Court).  There is an intriguing coda to the Shular ruling in the form of a three-page concurrence by Justice Kavanaugh in order to "elaborate on why the rule of lenity does not apply here."  In his elaboration, Justice Kavanaugh seems mostly just to reiterate basic doctrinal statements about the rule of lenity from past SCOTUS cases, so I am not quite sure what the separate opinion was designed to achieve (beyond giving the Justice an excuse to cite his own Harvard Law Review article: "Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118 (2016)).

February 26, 2020 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, February 25, 2020

Oregon discovering it might have Apprendi problems with its new first-degree murder sentencing provisions

A helpful reader alerted me to this interesting article from Oregon, headlined "New law throws true life sentence in doubt for MAX train killer Jeremy Christian, other murderers, experts say," which highlights that states are still struggling with the modern meaning of the Sixth Amendment a full two decades since Apprendi v. New Jersey.  Here are the details:

Now that a Portland jury has found Jeremy Christian guilty of the first-degree murders of two men on a MAX train, many people might assume that -- given the horrific nature of his crimes -- he’ll end up serving the rest of his life with the possibility of never being released.  Think again.

A growing chorus of legal experts say they believe there’s a glaring flaw in Oregon’s new first-degree murder law that effectively eliminates the possibility that Christian and other convicted murderers in the future will end up serving “true life” prison terms.

Critics say the new law, passed last summer as Senate Bill 1013, is unconstitutional and vague.  They say it disregards two landmark U.S. Supreme Court decisions that invalidate the procedure laid out in the law for handing down true life sentences.  In a flurry of paperwork filed Monday, Christian’s lawyers told Multnomah County Circuit Judge Cheryl Albrecht that given the law’s constitutional problems, her only remaining option under the law is to sentence Christian to life in prison with the possibility of release after 30 years.

Other lawyers representing first-degree murder defendants across Oregon are beginning to make similar arguments, as the first batch of accused killers head toward trials since the law took effect Sept. 29.  Defense attorneys aren’t the only ones pointing to a problem. “In the prosecution community, there’s considerable concern,” said former prosecutor Josh Marquis. “It’d be naive to say this is some idle speculation.”...

He said few lawyers are aware of the impact that the Supreme Court cases -- Apprendi v. New Jersey in 2000 and Blakely v. Washington in 2004 -- have on true life in Oregon....  The Supreme Court rulings require a jury, not a judge, to decide on an elevated prison sentence, such as true life, critics of SB 1013 say.  And criteria -- or specific questions asked of jurors -- must be laid out by the law before the jury can hand down the harsher sentence, they say.

The problem with Oregon’s law is that it grants sentencing powers solely to a judge and doesn’t include sentencing criteria.  As a result, retired Multnomah County prosecutor Norm Frink believes there’s “a high degree of probability” that the Oregon Supreme Court will overturn true life sentences for defendants convicted of first-degree murder....

The uncertainty over how the law will affect the first batch of defendants found guilty of first-degree murder is beginning to play out in courtrooms across the state.  In Christian’s case, Albrecht could go along with the law as stated and decide to sentence him to true life by simply giving what the law calls “the reasons” she thinks he deserves that sentence.

But Albrecht appears to recognize a problem with this because, after jurors found Christian guilty last week, she asked them to return to court Tuesday and Wednesday.  She plans to ask them questions about Christian that will help her decide his sentence.

In court filings Monday, prosecutors came up with their own suggestions for what she should ask, including: Is there a high probability that Christian can’t be rehabilitated? Were his crimes fueled by “unreasonable racial and religious bias”? Has Christian shown remorse for plunging the knife into the necks of the three men?

Tuesday, defense attorney Greg Scholl cautioned the judge that she is stepping onto shaky ground. “There’s nothing in the statute that says this is how they (jurors) are supposed to do it," Scholl said. “We’re operating in a new and somewhat gray area," prosecutor Jeff Howes responded.  Howes said just because SB 1013 doesn’t lay out a process for the judge and jury, that doesn’t mean the judge can’t create a process that is constitutional.  Regardless of how Albrecht handles this, Christian’s attorneys are likely to appeal whatever process she devises....

Outside Portland, other Oregon judges also have been grappling with what to do.  In November, a Hillsboro jury found Martin Allen Johnson guilty of first-degree murder in the killing of a 15-year-old girl whose body washed up on the banks of the Columbia River more than 20 years ago.

Using suggestions from prosecutors, Washington County Circuit Judge Eric Butterfield also came up with a list of questions for jurors.  Among them was whether the defendant knew he was preying on a particularly vulnerable person and if prior punishment in the criminal justice system had deterred him from reoffending.  Butterfield then sentenced Johnson to true life.  Johnson is appealing.

In Linn County, Brenton Wade Richmond faces a double murder trial in the shooting deaths of his ex-girlfriend and her new boyfriend in her home in 2019.  Wade’s defense attorney asked Circuit Judge David Delsman to prevent the prosecution from seeking true life because of what they see as the first-degree murder law’s many constitutional issues.

Lawyers for the Oregon Department of Justice, however, have weighed in, saying in court filings that the true life option is legal and valid.  Sen. Floyd Prozanski, the Eugene Democrat who chairs the Senate Judiciary Committee, said he wasn’t aware of the deep concerns some critics have over the validity of the law’s true life option for first-degree murder. His committee backed the bill.  “Well, that’s their opinion, their interpretation,” said Prozanski, who is a municipal prosecutor and handles misdemeanor cases.  “I had not heard that.  And I will say that the law is pretty clear... The intent was not to do away with what’s called true life.”

The new law causing all this trouble appears in bold here, and it says in one section that the "court shall" impose a 30-to-life term and in the next section that "the court may sentence the person to life imprisonment without the possibility of parole."  That next section then provides that the "court shall state on the record the reasons for imposing the sentence." 

I understand the Sixth Amendment worry with this statutory scheme which seems to require that "reasons" be given for an elevated "true life" sentence.  But, ironically, because the statute does not specify what "reasons" are required for the elevated "true life" sentence, I think an argument might be made that the Oregon statute requires only reasoned judgment, not discreet fact-finding, to justify the higher sentence and thus does not create Sixth Amendment problems.  (In a 2006 article titled, "Conceptualizing Booker," I developed the argument that broad judicial power at sentencing can be justified if and only when judges are exercising reasoned judgment.)

February 25, 2020 in Blakely in the States, Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Attorney General Barr names Michael Carvajal as new permanent Director of the Bureau of Prisons

As reported in this AP piece, "Attorney General William Barr has named a new director of the beleaguered federal Bureau of Prisons, months after shaking up the agency’s top leadership following the death of wealthy financier Jeffrey Epstein."  Here is more:

Barr named Michael Carvajal as the new director Tuesday, replacing Kathy Hawk Sawyer, whom he had personally asked to return to run the agency in the wake of Epstein’s death. Carvajal is currently the assistant director of the department’s correctional programs division, which handles the daily oversight of the bureau’s correctional services. He has held a number of positions since joining the Bureau of Prisons in 1992 as a correctional officer, including working as a warden and director of a regional office.

The Army veteran is also responsible for leading the bureau’s intelligence efforts, working with other law enforcement and counterterrorism agencies around the country. “Michael’s nearly 30 years of experience with the Bureau will serve him exceptionally well as he takes on these new responsibilities, and I am confident he will do an outstanding job as director,” Barr said in a statement. “I want to thank Kathy Hawk Sawyer for her exceptional leadership and helping us identify a highly qualified individual to serve as permanent director.”

Hawk Sawyer, who will remain for now as a senior adviser at the Bureau of Prisons, did not intend to remain in the top post permanently and was appointed to help implement immediate reforms in the wake of Epstein’s suicide, three people familiar with the matter said. Her deputy, Thomas Kane, will remain in his job under Carvajal....

One of the people said a goal with Hawk Sawyer was to help raise Barr’s confidence in the bureau and identify someone to come in and the lead the bureau long-term. Senior Justice Department officials now believe the bureau is in a better position to implement the Trump administration’s sweeping criminal justice reform known as the First Step Act.

The Bureau of Prisons has been in the spotlight since Epstein killed himself in August while awaiting trial on charges he sexually abused girls as young as 14 and young women in New York and Florida in the early 2000s. But the federal prison agency has been plagued for years by a chronic staffing shortage and violence and Epstein's death while in custody highlighted a series of safety lapses inside one of the most secure jails in America.

The inspector general is investigating, and the Justice Department is still probing the circumstances that led to Epstein’s death, including why he wasn’t given a cellmate. Two correctional officers responsible for watching Epstein have pleaded not guilty to charges alleging they lied on prison records to make it seem as though they had checked on Epstein, as required, before his death.

The official statement from the Justice Department about this appoint can be found at this link. I do not know anything specific about Michael Carvajal, but I do know he will be a key figure in the continuing implementation of key provisions of the FIRST STEP Act.

February 25, 2020 in Criminal justice in the Trump Administration, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

"Why prosecutorial discretion must be less discreet for criminal justice"

The title of this post is the headline of this notable recent Hill commentary authored by Lars Trautman. Here are excerpts:

Although the term “prosecutorial discretion” is familiar to most people, the extent to which it influences the direction and outcomes of each case may not be.  Does an offense deserve criminal charges, and if so which charges?  Should an individual receive bail or await trial in a jail cell? Is that trial even necessary, or will a plea deal suffice? Prosecutorial discretion lies at the heart of the answer to these questions and more.

Yet legislators are in an uproar because some prosecutors have started using their discretion to presumptively dismiss or divert all cases involving certain low level offenses. In Indiana, this includes the Marion County prosecutor declining to prosecute cases involving under an ounce of marijuana.  Likely ignorant of the fact that prosecutors routinely get rid of these cases without a conviction anyway, legislators have taken this replacement of individual decisions with an office wide policy as an affront. The result is a push to let no law go unprosecuted.

That is of course impractical. There are simply too many offenses and possible offenders to actually prosecute them all.   This means that some prosecutorial discretion is inevitable.... General policies favoring alternatives to prosecution extend the benefits of this discretion universally in those cases where the consequences of a conviction are counterproductive to the aims of justice.  Such policies also recognize that scarce prosecutorial resources are generally better spent pursuing much more serious conduct. Ignoring marijuana possession to focus on violent crime should not be a controversial call.

But just because the legislature is attempting to solve a fictional problem does not mean very real ones do not exist.  Prosecutorial discretion suffers from unaccountability and lack of transparency that could undermine its potential for good.  It operates as a kind of black box that only prosecutors can see inside as facts go in, decisions come out, and explanations are rarely forthcoming.  Policies are seldom public, and prosecutors do not usually disclose why they reached an outcome in any given case.

This immunity from scrutiny becomes protection against any challenge.  After all, a bad outcome alone is standard fare in our justice system.  Without any information on why it was reached, who is to say it was not the natural and normal result?  But attempting to eliminate prosecutorial discretion does not address any of these issues.  With more than 13 million misdemeanor charges alone filed every year in the country, and annual prosecutorial caseloads exceeding a thousand in some places, the evidence suggests that discretion is probably not used enough.

Instead, legislators should work to verify that prosecutors exercise their discretion fairly.  They can do this by pushing prosecutors to release relevant policies to the public, explain individual decisions, and collect and publish data on these decisions.  Trying to remove discretion from prosecution is sheer folly.  But as a necessary force behind many of the decisions that occur in criminal justice, it should be brought further into the light.  Only then will the public be able to see that it is correcting imbalances and injustices rather than continuing them.

February 25, 2020 in Drug Offense Sentencing, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Voting 5-4 on predictable lines, SCOTUS approves of appellate reweighing of aggravating and mitigating circumstances to uphold a death sentence

The Supreme Court this morning handed down a notable (and notably short) opinion in the capital case of McKinney v. Arizona, No, 18-1109 (S. Ct. Feb. 25, 2020) (available here), which rules that an appeals court can, and a jury need not, reweigh aggravating and mitigating circumstances to uphold a death sentence. The court split 5-4 with Justice Kavanaugh writing the majority opinion and with Justice Ginsburg authoring a dissent joined by Justices Breyer, Sotomayor, and Kagan.

Key passages from McKinney should be of interest not only to those who follow capital punishment jurisprudence, but also those who care about jury trial rights and the reach of precedents like Apprendi and Ring.  Here are excerpts from the seven-page majority opinion:

Nearly 20 years [after James McKinney was sentenced to death], on federal habeas corpus review, an en banc panel of the U.S. Court of Appeals for the Ninth Circuit decided by a 6 to 5 vote that, in sentencing McKinney, the Arizona courts had failed to properly consider McKinney’s posttraumatic stress disorder (PTSD) and had thereby run afoul of this Court’s decision in Eddings v. Oklahoma, 455 U.S. 104 (1982)....  McKinney contends that after the Ninth Circuit identified an Eddings error, the Arizona Supreme Court could not itself reweigh the aggravating and mitigating circumstances.  Rather, according to McKinney, a jury must resentence him.

McKinney’s argument does not square with this Court’s decision in Clemons...  [which held] that “the Federal Constitution does not prevent a state appellate court from upholding a death sentence that is based in part on an invalid or improperly defined aggravating circumstance either by reweighing of the aggravating and mitigating evidence or by harmless-error review.”  The Court explained that a Clemons reweighing is not a resentencing but instead is akin to harmless-error review in that both may be conducted by an appellate court...

In deciding whether a particular defendant warrants a death sentence in light of the mix of aggravating and mitigating circumstances, there is no meaningful difference for purposes of appellate reweighing between subtracting an aggravator from one side of the scale and adding a mitigator to the other side.  Both involve weighing, and the Court’s decision in Clemons ruled that appellate tribunals may perform a “reweighing of the aggravating and mitigating evidence.”  In short, a Clemons reweighing is a permissible remedy for an Eddings error....

Under Ring and Hurst, a jury must find the aggravating circumstance that makes the defendant death eligible. But importantly, in a capital sentencing proceeding just as in an ordinary sentencing proceeding, a jury (as opposed to a judge) is not constitutionally required to weigh the aggravating and mitigating circumstances or to make the ultimate sentencing decision within the relevant sentencing range....  Ring and Hurst did not require jury weighing of aggravating and mitigating circumstances, and Ring and Hurst did not overrule Clemons so as to prohibit appellate reweighing of aggravating and mitigating circumstances.

McKinney ... asserts that the Arizona Supreme Court’s 2018 decision reweighing the aggravators and mitigators constituted a reopening of direct review. Because this case (as McKinney sees it) is again on direct review, McKinney argues that he should receive the benefit of Ring and Hurst — namely, a jury resentencing with a jury determination of aggravating circumstances.

But the premise of that argument is wrong because the Arizona Supreme Court’s reweighing of the aggravating and mitigating circumstances occurred on collateral review, not direct review. In conducting the reweighing, the Arizona Supreme Court explained that it was conducting an independent review in a collateral proceeding.... Under these circumstances, we may not secondguess the Arizona Supreme Court’s characterization of state law.  As a matter of state law, the reweighing proceeding in McKinney’s case occurred on collateral review.

And here is how Justice Ginsburg's seven-page dissent gets started (with cites and footnotes removed):

Petitioner James Erin McKinney, convicted in Arizona of two counts of first-degree murder, was sentenced to death in 1993.  At that time, Arizona assigned capital sentencing to trial judges.  To impose a death sentence, the judge had to find at least one aggravating circumstance and “no mitigating circumstances sufficiently substantial to call for leniency.” Ariz. Rev. Stat. Ann. §13–703(E) (1993).  In 2002, in Ring v. Arizona, 536 U.S. 584 (2002), this Court held Arizona’s capital sentencing regime unconstitutional....  Here in dispute, does Ring apply to McKinney’s case?  If it does, then McKinney’s death sentences — imposed based on aggravating factors found by a judge, not a jury — are unlawful.

The Constitution, this Court has determined, requires the application of new rules of constitutional law to cases on direct review.   Such rules, however, do not apply retroactively to cases on collateral review unless they fall within one of two exceptions.  This Court has already held that Ring does not fall within those exceptions.  Thus, the pivotal question: Is McKinney’s case currently on direct review, in which case Ring applies, or on collateral review, in which case Ring does not apply?  I would rank the Arizona Supreme Court’s proceeding now before this Court for review as direct in character.  I would therefore hold McKinney’s death sentences unconstitutional under Ring, and reverse the judgment of the Arizona Supreme Court.

February 25, 2020 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Ending JLWOP, Virginia makes all juvenile offenders eligible for parole (and thereby moots SCOTUS consideration of Malvo case)

As effectively reported here by Daniel Nichanian at The Appeal: Political Report, Monday brought big news out of Virginia that had an echo effect on the Supreme Court's docket. The report is headlined "Virginia Makes All Children Eligible For Parole, A Major Shift For This Punitive State," and here are the details:

Virginia will give hundreds of people who have been incarcerated for decades, ever since they were kids, a shot at petitioning for release. House Bill 35 will make people who have been convicted of an offense committed before the age of 18 eligible for parole after 20 years in prison. The legislature adopted the bill last week and the governor signed it into law [on Monday], effective July 1.

In practice, the bill abolishes sentences of life without the possibility of parole for minors; minors sentenced to sentences that amount to life in prison would also get some chance at parole. “It’s a huge victory,” Heather Renwick, legal director of the Campaign for the Fair Sentencing of Youth, told me. Besides banning life without the possibility of parole for minors, “the bill will provide broader relief and parole eligibility for all kids sentenced in the adult system,” she said.

Still, a major question looms over the concrete effect that the reform would have. It will only make people eligible to go in front of a parole board, with no guarantee that anyone gets paroled. And the recent history of Virginia’s board is to quasi-systematically deny the applications it receives. This signals the importance of strengthening the parole process alongside reforms that expand eligibility.

HB 35 also will not address the expansive mechanisms that lead minors to be prosecuted as adults in Virginia, and that trigger lengthy sentences in the first place. But the legislature is also considering separate bills to at least narrow those mechanisms....

In some ways, this bill is a modest reform. For one, it brings Virginia in line with many of its peers. With HB 35 signed into law, Virginia becomes the 23rd state (plus D.C.) to end sentences of life without the possibility of parole for minors. Oregon passed a similar bill last summer, and such proposals are on the table in other states as well.

HB 35, moreover, is a less expansive change than we’ve seen in other states. When neighboring West Virginia adopted a similar law in 2014, it made minors eligible for parole after 15 years, rather than the 20 that HB 35 stipulates. (Oregon’s law also stipulated 15 years.) And when Illinois established new parole rules for youths last year, it made people up to age 21 eligible to apply, affirming that considerations of youth do not just stop when someone is a day over 18. HB 35 still sets a cutoff at age 18.

The bill also better aligns Virginia on the U.S. Supreme Court rulings, such as Miller v. Alabama, which ended mandatory life without parole sentences for minors. The state has been slow at granting resentencing, and there is also litigation on whether the other mechanisms that impose extreme sentences on minors are any more constitutional. HB 35 addresses such concerns by retroactively conferring parole eligibility to minors sentenced to de facto life sentences.

When the bill becomes effective, it will affect 720 currently-incarcerated people, according to a legislative analysis....

Virginia may also soon pass a bill to make about 300 people sentenced between 1995 (when it ended parole) and 2000 (when it began informing juries of this change) eligible for parole.

Expanding eligibility may not by itself change much for anyone, though, including for minors. That’s because Virginia’s parole board has been denying the vast majority of applications it receives.

According to a Capital News Services analysis of Virginia’s parole board published in December, the vast majority of parole applications are denied: 94 percent since 2014. The rate of denial was above 90 percent for all age groups. Earlier analyses have found similar numbers.

This ABC News article explains the echo effect of this new Virginia law on a high-profile Supreme Court case argued last October:

D.C. sniper Lee Boyd Malvo asked the Supreme Court to dismiss his appeal on Monday after a change to Virginia state law now makes him eligible for parole....  In a letter to the Court signed by Malvo's attorney and an attorney for the state of Virginia, both sides agreed the case is now moot and should be dismissed.  Malvo will retain his sentences and remain behind bars, the letter says.

Over at Crime & Consequences, Kent Scheidegger has two posts in this wake of these developments, the first suggesting an alternative case for the Court to now take up and the second urging the Court to think about how best to dismiss the Malvo case:

February 25, 2020 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, February 24, 2020

"Imagining the Progressive Prosecutor"

The title of this post is the title of this notable new paper authored by Benjamin Levin. Here is its abstract:

As criminal justice reform has attracted greater public support, a new brand of district attorney candidate has arrived: the “progressive prosecutors.”  Commentators increasingly have keyed on “progressive prosecutors” as offering a promising avenue for structural change, deserving of significant political capital and academic attention.  This Essay asks an unanswered threshold question: what exactly is a “progressive prosecutor”?  Is that a meaningful category at all, and if so, who is entitled to claim the mantle?  In this Essay, I argue that “progressive prosecutor” means many different things to many different people.  These differences in turn reveal important fault lines in academic and public perceptions of the criminal system and its flaws.

This disagreement or definitional slippage matters, not just for semantic clarity.  Some commentators hail the progressive prosecutor as a new champion of fixing the criminal legal system, while others express skepticism about the transformative potential of even the most progressive DAs.  To the extent that there are fundamental disagreements, then it is critically important to surface them. If resources are being devoted to advancing a progressive prosecutor movement, how unified is that movement?  And, do all the voices pushing for a new approach to prosecution actually agree on what that approach should entail?

In an effort to answer these questions and clarify the terms of debate on progressive prosecutors, this Essay offers a typology of progressive prosecutors.  Rather than mapping all of the candidates and elected officials who have sought or received the mantle, I offer four ideal types: (1) the progressive who prosecutes; (2) the proceduralist prosecutor; (3) the prosecutorical progressive; and (4) the anti-carceral prosecutor.  Each ideal type reflects a different vision of what’s wrong with the criminal system and whether (or to what extent) prosecutors might help in righting those wrongs.

February 24, 2020 in Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Without any comment, SCOTUS quickly denies cert on two big cases raising the constitutionality of acquitted conduct sentencing

For a number of months, I have been keeping an eye on two certiorari-stage cases being briefed to the Supreme Court, Asaro v. United States and Michigan v. BeckAsaro is a not-too-uncommon case involving a federal defendant whose sentence was enhanced on the basis of so-called "acquitted conduct,” Beck is a somewhat unusual case involving a split Michigan Supreme Court finding due process precludes acquitted conduct being used to enhance a sentence. 

The fact that the state was appealing in Beck, as well as various past comments by newer Justices Gorsuch and Kavanaugh, had me thinking maybe enough current members of the Supreme Court would be prepared to take up these important and challenging issues that have been churning with uncertainty in the wake of Fifth and Sixth Amendment rulings like Watts, Apprendi, Blakely and Booker.  But, via this lengthy order list, SCOTUS on its very first opportunity and without any comment from any Justice, quickly denied certiorari in both Asaro and Beck

I am a lot disappointed, and I suppose a little bit surprised, that these cases did not even generate a relist or any comment from any Justice.  I welcome spculation from others about why the Court seems so very eager to avoid taking up these issues.

February 24, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Via statement after cert denial, Justice Sotomayor makes lengthy case highlighting doubts about guilt of Texas capital defendant

In the middle of a lengthy order list with mostly just cert denials of interest to criminal justice fans (two of which I will discuss in a coming post), Justice Sonia Sotomayor issued this lengthy statement respecting the denial of certiorari in the capital case of Reed v. Texas, No. 19–411.  The bulk of the seven-page statement discusses the evidence raising doubts about the guilt of Rodney Reed, and here are the Justice's closing paragraphs:

In the instant petition for a writ of certiorari, Reed has presented a substantial body of evidence that, if true, casts doubt on the veracity and scientific validity of the evidence on which Reed’s conviction rests.  Misgivings this ponderous should not be brushed aside even in the least consequential of criminal cases; certainly they deserve sober consideration when a capital conviction and sentence hang in the balance.  In the pending tenth state habeas proceeding, however, Reed has identified still more evidence that he says further demonstrates his innocence.  It is no trivial moment that the Texas courts have concluded that Reed has presented a substantive claim of actual innocence warranting further consideration and development on the merits.  While the Court today declines to review the instant petition, it of course does not pass on the merits of Reed’s innocence or close the door to future review.

In my view, there is no escaping the pall of uncertainty over Reed’s conviction.  Nor is there any denying the irreversible consequence of setting that uncertainty aside.  But I remain hopeful that available state processes will take care to ensure full and fair consideration of Reed’s innocence — and will not allow the most permanent of consequences to weigh on the Nation’s conscience while Reed’s conviction remains so mired in doubt.

Prior related post:

February 24, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Whom else should Prez Trump pardon?

The question in the title of this post is prompted by this recent CNN piece by James Gagliano, headlined "This is one pardon Trump should consider." This extended piece starts and ends this way

Since pardons are something of a topic du jour, Mr. President, I have a simple request.  I'm fairly certain you've heard of former NFL star quarterback Michael Vick.  We also all noticed the news reports that you just gifted a commutation for an alum of "The Celebrity Apprentice" who was accused of shakedowns involving a children's hospital and pardoned a former police commissioner convicted for tax fraud and lying to the government.  So please, sir, hear me out -- I have a far more deserving candidate for your leniency consideration.

ESPN's two-part 30 for 30 documentary entitled "Vick" aired recently.  And to tell the complete story of the film's 39-year-old protagonist, every second of its three-hour run time was required.  Vick's tale is one of against-long-odds achievement, meteoric ascension to the pinnacle of his profession and losing it all, while falling prey to hubris and his own cripplingly poor decision-making.  It is also a story of forgiveness, second acts and deserved redemption, Mr. President....

Michael Vick made good on his second chance.  He's back working in football as a television analyst.  He's a family man. He has acknowledged his failures and atoned for them. He has blamed no one else but himself.  Michael Vick could certainly be any of us. He made some grievous mistakes.  As have we all -- including the man who currently occupies the Oval Office.  Here's hoping you'll give this pardon request some serious consideration, Mr. President.

I am sure readers have some additional ideas for clemency candidates now that Prez Trump has his pen going. I would love to hear in the comments additional suggestions.  (Amusingly, thie Fox News piece highlights a humorous suggestion from a notable source under the headline "Mark Hamill wants Trump to 'pardon' notorious 'Star Wars Holiday Special'.")

February 24, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Thursday, February 20, 2020

Roger Stone gets 40-month federal prison sentence ... but will he ever actually serve it?

As reported in this Politico piece, headlined "Roger Stone was sentenced Thursday to just more than three years in prison, a decision that raises immediate questions about whether President Donald Trump will pardon his longtime political confidant for what the president has decried as a miscarriage of justice." Here is more about notable sentencing:

U.S. District Court Judge Amy Berman Jackson handed down Stone’s 40-month sentence in a packed Washington, D.C., courtroom after spending more than two hours ticking through the twisted history of his case... "The problem is nothing about this case was a joke,” Jackson said moments before sentencing Stone. “It wasn't funny. It wasn't a stunt and it wasn't a prank.”

Stone, who passed on a chance to address the courtroom, stood silently with his attorneys for nearly 45 minutes while the judge explained the reasoning behind her sentence. The punishment, she said, grew in large part from the severity of his attempts to stymie the Russia probe, violations of a gag order limiting his speech during the pre-trial proceedings and for making a threat to the judge through social media. “He was not prosecuted for standing up for the president,” Jackson added in her closing remarks. “He was prosecuted for covering up for the president.”

Jackson’s sentence for Stone — among the most severe to-date in a case originating from special counsel Robert Mueller — came a week after his potential punishment triggered a furor at the Justice Department. Stone’s case has become a flashpoint for broader concerns about political meddling in high-profile legal cases....

Jackson, an appointee of President Barack Obama, jumped at the chance to press one of the newly-assigned prosecutors, John Crabb, about the issue as he delivered the government’s final comments. “I want to apologize to the court for the confusion the government caused with respect to sentencing,” Crabb said.... Under questioning by Jackson, Crabb confirmed that the original recommendation was approved by a former aide to Barr who was recently installed as U.S. Attorney in Washington, Tim Shea.

Crabb said the confusion stemmed from miscommunication between Barr and Shea, but Crabb declined to elaborate. When the judge asked whether Crabb wrote the revised recommendation, he demurred again, saying that — despite his earlier comments — he was not permitted to discuss “internal deliberations.” While Trump has denounced the decision to prosecute Stone, Crabb took a contrary position, echoing comments Barr made in an interview last week, where he called the prosecution of Stone “righteous.”...

Without mentioning any names, the judge suggested that some critics of the original recommendation seemed unusually moved by Stone’s plight, even though the guidelines that DOJ followed — first adopted in the 1980s to rein in judges’ discretion — sometimes produce extraordinarily long sentences.

“For those of you new to this and who woke up last week to the fact that the...guidelines are harsh, I can assure you that defense attorneys and many judges have been making that point for a long time, but we don’t usually succeed in getting the government to agree,” Jackson scoffed.

Later, Jackson noted that the government’s decision to argue that Stone should get less prison time than federal sentencing guidelines recommend was a definite deviation from standard practices adopted by the Trump administration. “It’s not just a question of good faith, but whether it was fully consistent with current DOJ policy,” she said. “The current policy of this Department of Justice is to charge and prosecute the most serious offense available in order to get the highest guideline level.”

Crabb acknowledged that is “generally” DOJ’s current policy and that line prosecutors are not permitted to deviate from it without approval from higher-ups. And while Trump has suggested the judge has been cruel towards his allies like former Trump campaign chairman Paul Manafort, Crabb came to the judge’s defense Thursday, saying “the government has the utmost confidence” in her, and praising her “thoughtful analysis and fair sentences” in related cases....

The judge also said that when making her decision, she took into account Stone's social media attacks on the court during his prosecution that raised security concerns at the courthouse. "This is intolerable to the administration of justice and the courts should not sit idly by, shrug its shoulders and just say it's 'Roger being Roger,’” Jackson said.

Stone, 67, has sought to avoid any prison time. During Thursday’s hearings, his defense argued he had no criminal record and should get a reprieve because he’s a family man about to become a great-grandfather. “Consider the full scope of the person who stands before you in sentencing," said Seth Ginsberg, a new defense lawyer brought on for sentencing. “Mr. Stone has many admirable qualities,” Ginsberg added, urging Jackson to look beyond the "larger than life persona" Stone plays on TV. He noted Stone's charity work to help veterans, animal welfare and NFL players suffering from traumatic brain injuries.

Earlier this week, Judge Jackson indicated that Stone would not have to start serving his sentence until she rules on his motion for a new trial. I expect that Prex Trump will be inclined to hold back on any possible clemency action at least until that motion is resolved and Stone faces the prospect of heading to prison. (As some may recall, Prez GW Bush did not commute Lewis Libby's prison sentence until the DC Circuit denied his request for bail pending appeal.)

Prior related posts:

February 20, 2020 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (3)

Lots of notable clemency news and notes and commentaries after Prez Trump's flourish of mercy

Unsurprisingly, a number of reporters and commentators have lots to report and comment upon in the wake of Trump's latest clemency work (basics noted here and here and here).  Here are just a few pieces that seem like must reads in full (with a taste to whet appetites):

From the Washintong Post, "White House assembles team of advisers to guide clemency process as Trump considers more pardons":

The White House is moving to take more direct control over pardons and commutations, with President Trump aiming to limit the role of the Justice Department in the clemency process as he weighs a flurry of additional pardon announcements, according to people familiar with the matter.... The group, essentially an informal task force of at least a half-dozen presidential allies, has been meeting since late last year to discuss a revamped pardon system in the White House. Jared Kushner, Trump’s son-in-law and senior adviser, is taking a leading role in the new clemency initiative and has supported the idea of putting the White House more directly in control of the process that in past administrations has been housed in the Justice Department, officials said....

Trump, who prefers granting clemency to people with compelling personal stories or lengthy sentences, is inclined to grant more pardons before facing voters in November, one official said. “He likes doing them,” the official said...  While several of the pardons Trump granted Tuesday went to well-connected or wealthy associates, the president also commuted the sentences of three women who had been convicted of nonviolent offenses — part of the new task-force effort.

The women were recommended by [Alice] Johnson, who had her life sentence for a nonviolent drug offense commuted by Trump in 2018. Johnson has been working with the White House’s new clemency effort after Trump publicly asked her last year to submit a list of names of other people who deserved commutations, officials said. She recommended Crystal Munoz, Tynice Hall and Judith Negron, who each had their sentences commuted by Trump on Tuesday. Johnson is a member of the informal network of advocates providing clemency recommendations. Former acting attorney general Matthew G. Whitaker, Democratic commentator Van Jones and Brett Tolman, a former U.S. attorney in Utah, are also part of the group, according to a senior administration official.

From the New York Times, "The 11 Criminals Granted Clemency by Trump Had One Thing in Common: Connections":

The clemency orders that the president issued that day to celebrity felons like Mr. Kerik, Rod R. Blagojevich and Michael R. Milken came about through a typically Trumpian process, an ad hoc scramble that bypassed the formal procedures used by past presidents and was driven instead by friendship, fame, personal empathy and a shared sense of persecution. While aides said the timing was random, it reinforced Mr. Trump’s antipathy toward the law enforcement establishment.

From Zak Cheney-Rice in New York, "The Valuable Lesson Trump Pardonees Learned in Prison: Prison Is Bad and Unfair":

The president is not against aggressive sentencing. His entire foray into electoral politics is a testament to the opposite. The incoherence of his shifting positions on criminal justice and imprisonment is best accounted for by a simpler principle: He bristles when people he likes or who share his ideologies are held accountable for their misdeeds, and to fend off accusations of impropriety, he has found a convenient laundering mechanism for letting them off the hook by pardoning random black people. Reports suggest that Trump’s recent efforts to recast this dubious moral position as a broader commitment to criminal-justice reform is the brainchild of Jared Kushner, his son-in-law turned adviser, whose father spent several months in federal prison for tax evasion, witness tampering, and illegal political campaign contributions. Kushner and Trump seem to have come by their recent objections to the American criminal-legal system the same way that many people do: by having been personally affected by it and witnessing firsthand how unjust and destructive it is.

A few prior related posts:

February 20, 2020 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Noting that condemned Tennessee inmates are opting for electrocution over lethal injection

This New York Times piece, headlined "Afraid of Lethal Injection, Inmates Are Choosing the Electric Chair," reviews execution trends nationwide just before Tennessee is scheduled to conduct another state killing through the use of the electric chair. Here are excerpts:

Nicholas Sutton, like other death row inmates in Tennessee, has a choice in how the state will end his life.  The default, as set by state law, would be a series of injections, one to sedate him, followed by others that would paralyze him and stop his heart.  Yet Mr. Sutton, like four other inmates executed before him in Tennessee since 2018, has chosen the state’s other option: Two cycles of 1,750 volts of electricity.

Nationally, the electric chair is a method of the past; no other state has used it since 2013.  But inmate advocates and lawyers say the condemned men in Tennessee are choosing electrocution because they fear being frozen in place and feeling intense discomfort while drugs work to kill them.

In Ohio, a federal judge recently wrote that part of the state’s lethal injection protocol is akin to waterboarding, and botched procedures in other states have left men writhing in agony....

Tennessee joined other states more than two decades ago in turning to lethal injection as the primary method for executions, with lawmakers viewing it as a visibly calmer and less violent alternative to electrocution. But that view has been challenged in recent years, as errors and problematic executions, including one in Oklahoma in 2014 in which an inmate regained consciousness, have gained widespread notice.  Many pharmaceutical companies have also made it more difficult for states to acquire the proper drugs, not wanting them associated with ending lives.

The death penalty, in general, has been on the decline in the United States, with seven states carrying out 22 executions in 2019, the second-lowest number since 1991.  Last year, New Hampshire became the 21st state, and the last in New England, to abandon capital punishment....

But other states have doubled down.  Last week, state officials in Oklahoma announced that lethal injection deaths would resume after a five-year hiatus and a series of botched executions....

With his execution scheduled for Thursday night, Mr. Sutton was moved on Tuesday into death watch at the Riverbend Maximum Security Institution, a facility in Nashville situated in a crook of the Cumberland River that houses Tennessee’s death row for men.

February 20, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Wednesday, February 19, 2020

Roger Stone case generating some useful reflections on federal sentencing challenges and problems and lessons

Roger Stone is scheduled to be sentencing on Thursday and this Bloomberg piece provides a bit of the lay of the land starting this way:

Roger Stone’s sentencing on Thursday is shaping up as a test of judicial independence after President Donald Trump inserted himself in the court’s deliberations over the fate of his longtime confidant. If U.S. District Judge Amy Berman Jackson sentences Stone in line with the Justice Department’s new and lower recommendation, partisans will see that as caving to Trump, former federal prosecutor Harry Sandick said. If she gives a jail term closer to the maximum, she’ll be seen as defying the pressure.

“Given how polarized the country is, some people will look to Jackson to be a hero and give him a long sentence, and others will look to her to be a hero and give him a short sentence, but she’ll likely come in somewhere in between,” Sandick said. “She doesn’t need to be a hero. She’s a federal judge.”

Jackson said Wednesday that she’ll allow Stone to remain free regardless while she considers his bid for a new trial and any other motions filed after the sentencing. Speculation that sending him straight to prison could prompt Trump to swiftly pardon him rose after the president issued a slate of high-profile clemencies Tuesday in cases often supported by conservatives.

I am a bit sad that I am not teaching my sentencing course this semester because so many of the elements around, and the challenges that surround, federal sentencing decision-making could be effectively taught through the lens of the Stone case.  Helpfully, a number of thoughtful folks have taking already penned thoughtful pieces that use the Stone case to spotlight various federal sentencing challenges and problems and lessons.  Here are some that have caught my eye that are worth reading in full (and that I quote from too briefly just to whet appetites):

By Michael Zeldin at CNN, "In Stone case, a blast from the Obama past":

Barr's approach, in this instance involving a Trump ally, was more consistent with the DOJ guidance for charging and sentencing issued by Attorney General Eric Holder under President Barack Obama -- a policy that the Sessions memorandum essentially reversed. What, you may be asking? Yes, in my opinion, in this case, Barr appears to have followed more closely DOJ's policy as it stood under Obama's attorney general, rather than under Sessions, who said at the time that he was ushering in the "Trump Era."

By Rory Fleming at Filter, "Can Roger Stone Case Spark Debate on the Dreadful US Sentencing Guidelines?"

Arguably the worst part is that federal sentencing under the Guidelines takes into account all the defendant’s “relevant conduct”—including conduct as a kid, including whether or not the conduct was charged and including charges that have resulted in acquittal. And the standard of proof in court for aggravators is ”proof” by the preponderance of the evidence—which means considered more likely than not—rather than “beyond a reasonable doubt.”

By Timothy Zerillo at Medium, "The Roger Stone Sentencing Highlights the Impact of Federal Sentencing Enhancements":

Every day, in all 94 of the District Courts throughout the United States, defendants will be sentenced and enhancements will be metered out. These enhancements, along with mandatory minimums and a desire to punish rather than rehabilitate, all serve to contribute to our culture of mass incarceration. Regardless of your opinion about Roger Stone, his situation highlights how sentences can skyrocket based on sometimes fair, sometimes ridiculously unfair, sentencing enhancements.

By Sarah Lustbader at The Appeal, "One Thing Barr Gets Right: The Sentencing Guidelines Are Indeed Too Harsh":

Given that disparities between rich and poor still run rampant in the criminal system, it is tempting for those of us in the social justice community to take the DOJ at its word in its amended sentencing memo when it urges a tailored, nuanced, and lenient outcome. The government even included in the memo a reminder that “the Supreme Court has stated that a sentencing court ‘may not presume that the Guidelines range is reasonable but must make an individualized assessment based on the facts presented.’” One civil rights attorney suggested on Twitter that federal defense lawyers file memos in all of their cases, stating that the DOJ believes that guidelines sentences are not presumptively reasonable.

By Mike Scarcella at The National Law Journal, "The Hardest Thing About Being a Judge? What Courts Say About Sentencing":

“It is just not a natural or everyday thing to do—to pass judgment on people, to send them to prison or not," one federal appeals judge once remarked.  Here's a look at how judges across courts have described the challenge of sentencing, as Roger Stone prepares to learn his fate.

Prior related posts:

February 19, 2020 in Celebrity sentencings, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Recognizing historic modern first-term commutation work by Prez Trump in a single day

Unsurprisingly, the pardons and commutations handed out by President Trump yesterday to high-profile individuals like Michael Milken, Rod Blagojevich, Bernie Kerik and Eddie DeBartolo have been dominating the news coverage of Trump's latest clemency work (basics noted here and here).  But I wanted to take a moment to note (and, in a sense, lament) that Prez Trump's granting of four commutations yesterday — to Tynice Nichole Hall, Crystal Munoz and Judith Negron along with Blagojevich — is quite historic in modern terms.

Last summer in this post, I used the official clemency statistics here from the Office of the Pardon Attorney to set out first-term commutation scorecard for US Presidents over the last half century.  Here are the particularly disconcerting numbers for the last four men in the Oval Office before Prez Trump:

Prez                     Commutations in entire first term

George HW Bush         3

William Clinton           3

George W Bush            2

Barack Obama             1

In other words, Prez Trump's granting of four commutations in a single day amounted to more commutations than any of the last four Presidents granted throughout their entire first term in the Oval Office.  (Of course, Prez Obama got quite busy with commutations in his second term, and so his final clemency scorecard looks a heck of a lot better than it looked at the end of his first term.)  In addition, with his four commutations yesterday, Prez Trump is now already up to a total of 10 commutations, which is one more than all of the last four Presidents combined granted throughout their entire first terms in the Oval Office.  

Prez Trump setting these modern commutation records is not really a reflection of robust use of his clemency pen as much as it serves as a sad commentary on the paucity of clemency granted by the four men in the Oval Office before Trump.  That said, Prez Trump seems to have come to appreciate (perhaps only for personal reasons) Alexander Hamilton's famous statement in Federalist 74 that the administration of justice can often "wear a countenance too sanguinary and cruel."  I sincerely hope he keeps on helping folks other than just friends and vocal allies with his clemency powers.

Prior related post:

February 19, 2020 in Clemency and Pardons, Data on sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Another thoughtful and thorough opinion finds statutory reform among "extraordinary and compelling reasons" for reducing sentence under § 3582(c)(1)(A)

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

I have previously flagged here and here and here  and here some notable examples of judges finding notable reasons sufficient to reduce a sentence.  But I have not blogged lately about any recent § 3582(c)(1)(A) rulings because my Westlaw searches have largely turned up only denials rather than grants of these motions.  Thanks to a helpful reader, though, I learned of a notable recent grant in US v. Maumau,  No. 2:08-cr-00758-TC-11, 2020 WL 806121 (D. Utah Feb. 18, 2020) (also available for download below).  This decision, authored by District Tena Campbell, provides an extended, thoughtful review of recent compassionate release jurisprudence and the changes to § 3582(c)(1)(A) brought by the FIRST STEP Act. 

I recommend review of the Maumau ruling in full for anyone working on or thinking about these isssues.  Here are some excerpts from the opinion that help highlight its importance:

Having reviewed all of the above cases, this court joins the majority of other district courts that have addressed this issue in concluding that it has the discretion to provide Mr. Maumau with relief, even if his situation does not directly fall within the Sentencing Commission’s current policy statement. Under the First Step Act, it is for the court, not the Director of the Bureau of Prisons, to determine whether there is an “extraordinary and compelling reason” to reduce a sentence....

As part of the First Step Act, Congress eliminated the consecutive stacking previously required for violations of § 924(c) [which had led to a 55-year sentence for the defendant for crimes committed at age 20]... When considered together, the court is inclined to find that Mr. Maumau’s age, the length of sentence imposed, and the fact that he would not receive the same sentence if the crime occurred today all represent extraordinary and compelling grounds to reduce his sentence.

The United States points out in its opposition that Mr. Maumau’s request is unlike the vast majority of compassionate release requests because he is not suffering from any medical- or age-related physical limitations.  But the fact that such cases are uncommon does not mean that Mr. Maumau’s request must be denied.  First, the lack of such cases is, at least arguably, part of what spurred Congress to pass the First Step Act.... Finally, and perhaps most importantly here, at least one district court has modified a sentence based solely on the First Step Act’s changes to § 924(c) sentencing.... Like the Urkevich court, this court concludes that the changes in how § 924(c) sentences are calculated is a compelling and extraordinary reason to provide relief on the facts present here.

The United States objects to this conclusion because, it notes, Congress could have made its changes to § 924(c) retroactive but it chose not to do so. See Brown, 2019 WL 4942051 at *5.  While this is a relevant consideration, it ultimately has little bearing on the court’s conclusion. It is not unreasonable for Congress to conclude that not all defendants convicted under § 924(c) should receive new sentences, even while expanding the power of the courts to relieve some defendants of those sentences on a case-by-case basis.  As just noted, that is precisely the approach taken by the Urkevich court.

Based on the above, the court concludes that a combination of factors — Mr. Maumau’s young age at the time of the sentence, the incredible length of the mandatory sentence imposed, and the fact that, if sentenced today, he would not be subject to such a long term of imprisonment — establish an extraordinary and compelling reason to reduce Mr. Maumau’s sentence....

Regarding what type of sentence to impose, Mr. Maumau “urge[s] the Court to ... hav[e] him brought to the district, where he can be interviewed by Probation and perhaps have an opportunity to address the Court.” (Def.’s Reply at 1 (ECF No. 1744).)  The court agrees that this is the best way for the court to determine an appropriate sentence modification.

Accordingly, the court sets this matter for a hearing at 2:00 p.m. on April 7th.  At that time, Mr. Maumau and the United States will be permitted to present their arguments regarding what would be an appropriate sentence for Mr. Maumau in light of the above factors.  The court further orders Mr. Maumau, in advance of the resentencing hearing, to meet with the Probation Office, and for the Probation Office to prepare a new Presentence Report that addresses Mr. Maumau’s character, his danger to the public, his likelihood of rehabilitation or recidivism, the type of sentence he likely would have received had he been charged and convicted after the First Step Act had been passed, and any other relevant considerations.

Download Maumau.DistrictCourtOpinion.Feb18.2020

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

February 19, 2020 in FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Former NYC mayor Mike Bloomberg, on eve of his first Prez debate, releases full criminal justice reform plan

In this post from December, I noted this page on the campaign website of Mike Bloomberg that reported on "three criminal justice reform policy proposals" then announced by the then-new Democratic presidential candidate.  Unsurprisingly, that partial plan has not deflected criticisms of Bloomberg's record and past comments on criminal justice matters.  And, also unsurprisingly, Bloomberg has now announced more of a criminal justice platform via this piece headlined "Mike Bloomberg Expands Criminal Justice Reform Plan With Bold Initiatives to End Era of Mass Incarceration."  Here are excerpts (with emphasis and links in the original):

Commits $22.5 billion to reduce prison population by 50% by 2030, will slash youth incarceration by half in four years, and expands funding for public defenders

Invests $1 billion in programs to support young men of color and creates justice reclamation centers at historically black colleges and universities

Democratic presidential candidate Mike Bloomberg today released his comprehensive plan to restructure our country’s criminal justice system. On December 3, 2019, Mike released three key pillars of his criminal justice reform policy as the first policy announcement of his campaign.  In the 12 weeks since, the campaign and Mike have met with leaders, advocates, and activists to receive input and feedback, which culminates in today’s release of Mike’s full criminal justice reform platform. As president, Mike will end the era of mass incarceration by heavily investing federal resources to halve the prison population within the next decade, increase funding for public defenders, and confront deep-seated racial and economic inequities that fall largely on Black, Latino, and other underserved communities.

Mike’s plan promises to protect people at every touchpoint in the justice system, from innovative pre-trial efforts that stop the reliance on incarceration to addressing unjust and excessive sentencing in the courtroom, and from re-imagining our prisons as a place for rehabilitation to a new work program and robust services for people returning to their communities. Mike will also commit $22.5 billion over 10 years for reform at the state and local level, with a new Justice Reform Office at the Department of Justice to fund the most-needed reforms on a state-by-state basis....

Mike’s Plan to Reform America’s Criminal Justice System

The United States has a mass incarceration problem. The U.S. has 5% of the world’s people, yet confines nearly a quarter of the world’s prison population. America’s criminal justice system has dramatic racial disparities: Latino adults are three times more likely to be incarcerated than White adults, and Black Americans make up 13% of the U.S. population but are 40% of all incarcerated people. The system unfairly punishes people for their poverty, often further entrenching them in a vicious cycle of poverty and incarceration.

In Jackson, Mississippi last December, Mike pledged to prioritize juvenile justice, fund local violence interrupter programs, reform the bail system, and bring new re-entry and career-training programming to prisons. Mike’s full plan, announced today, will:

  • Protect the public and rebuild community trust: Mike will invest in innovative community-led partnerships, focused deterrence programs and smart and just policing. Mike will sign a bill raising the standard for federal officers’ use of force, ensuring deadly force is used only when necessary to prevent serious injury or death — and will pressure states to enact similar statutes. He will require de-escalation and bias training, body-worn cameras and early intervention for police who present warning signs. He will promote independent police oversight boards, re-invigorate civil rights investigations to keep police accountable and make it a national priority to expand and analyze data on police use of force.
  • Cut incarceration rates and re-imagine prison as a place for rehabilitation from day one: Mike will invest $22.5 billion to launch a Department of Justice reform hub to evaluate and fund state-level criminal justice reform efforts, set a goal to reduce incarceration by 50% by 2030 and cut crime across the U.S., and spread the use of alternatives to prison pioneered in New York City. Additionally, he will increase funding to improve health and safety in federal, state and local prisons, along with education and job training.
  • Address injustice in the legal system: Mike will boost funding for public defense, end cash bail, court fines and punitive fees and roll back punitive sentencing practices. Public defense is underfunded in the states, leading to longer sentences and wrongful convictions. Mike will fund $2.5 billion over ten years for public defense – requiring grantees to have pay parity for defenders and prosecutors, as well as workload limits that ensure fair representation. He will also end federal cash bail, end court fines and punitive fees and propose new federal sentencing structure to reverse an overly punitive legacy. Mike’s plan will decriminalize possession and use of marijuana nationwide, commute any existing sentences and expunge any records.
  • Help formerly incarcerated people re-enter society: Mike will start a federal work program for the formerly incarcerated, including providing employers with a multi-year tax incentive and expanding “ban the box initiatives.” He will bolster federal funding for re-entry services and also expand social services for children whose parents are incarcerated.
  • Increase support and services for victims of domestic violence, gun violence, hate crimes and human trafficking: Mike will increase funding to build family justice centers, which provide holistic services for survivors of domestic violence—and make it easier for victims to seek justice. He will also re-authorize the Violence Against Women Act, with necessary improvements; eliminate the national rape kit backlog; start a national helpline for gun violence and make hate crimes and human trafficking a top federal priority.
  • Invest in young men of color: Mike’s plan will invest $100 million annually to revive and sustain the My Brother’s Keeper Initiative as a federal program. Using the Neighborhood Equity and Opportunity Office (NEO), proposed in the Greenwood Initiative, Mike will launch a permanent funding stream to invest in young men of color. Building on the Young Men’s Initiative that Mike created as mayor, this national program will focus on creating opportunity while preventing entry into the criminal justice system. He will also establish a National Trauma-Informed Care Task Force to study the effects of early trauma – and to recommend practices to formalize the delivery of quality care across federal agencies that touch low-income families and justice-involved people.
  • Create restorative justice centers at historically black colleges and universities (HBCUs): Mike’s plan also includes funding justice reclamation centers at HBCUs across the country. Mike will set up a network of justice reclamation as hubs of history and public education that will chronicle an era, create the conditions for healing based on the best social science and devise constructive strategies for policing, remediation and community involvement. These centers will be a collaborative place to gather existing expertise and develop best new solutions — with a special focus on restorative justice. The centers will partner with local My Brother’s Keeper projects, helping give communities the tools to drive meaningful criminal justice reform.

Given the recent buzz around the Roger Stone sentencing and Prez Trump's latest clemencies, as well as Bloomberg's first appearance on the Democratic debate stage and his "stop and frisk" record, I am thinking tonight's debate in Nevada is likely to include some (perhaps even a lot) of criminal justice issues.  Notably, Nevada is the first state to vote this season that has fully legalized marijuana, so that too could perhaps be a topic for tonight discussion.

Prior related post:

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

Tuesday, February 18, 2020

Is Ohio really likely to repeal the death penalty "in the next year or so"?

The question in the title of this post come in response to this local article, headlined "Conservatives organize to end Ohio’s death penalty," reporting on the latest indication that the Buckeye State may be moving pretty swiftly toward death penalty abolition.  Here are the details:

As Ohio’s years-long struggle to obtain execution drugs continues with no end in sight, there’s a new effort underway to completely abolish capital punishment in the state – this time, with increasing involvement by conservatives.

But though activists say they’re confident that state lawmakers will soon get rid of the death penalty, whether legislators will actually take such action isn’t a foregone conclusion.

At a Statehouse news conference Tuesday, the newly created Ohio chapter of Conservatives Concerned About the Death Penalty released a list of conservatives in favor of abolishing Ohio’s death penalty, under which more than 50 people have been put to death since the state resumed executions in 1999.

The list includes a number of former Republican officeholders, including former Attorney General Jim Petro, ex-Gov. Bob Taft, and longtime U.S. Rep. Pat Tiberi. Several former staffers of ex-Gov. John Kasich also signed on – though Kasich himself has not.

Only three people on the list are sitting GOP lawmakers: state Reps. Craig Riedel of Defiance, Laura Lanese of suburban Columbus, and Niraj Antani of the Dayton area.

Ohio House Speaker Larry Householder, a Perry County Republican, has repeatedly said that his support of the death penalty is eroding. Gov. Mike DeWine, a Greene County Republican, has put a freeze on executions in Ohio because pharmaceutical companies have refused to sell drugs to the state for use in lethal injections, though he has stayed silent about whether he continues to support the death penalty.

Hannah Kubbins, director of the non-partisan Ohioans To Stop Executions, said she and Hannah Cox, national manager for Conservatives Concerned About the Death Penalty, have already spoken with a majority of Ohio lawmakers about getting rid of capital punishment. “I think that we will see repeal in the next year or so,” Kubbins said in an interview. “The conversations are encouraging. …It’s becoming a conservative-led, bipartisan-supported movement.”

Some Republican lawmakers, she said, were already skeptical about capital punishment on religious grounds, or because of concerns about the high taxpayer-funded expense of putting someone to death. Others, she said, are becoming anti-death penalty because of Ohio’s problems with death drugs. Another factor is conservatives’ preference for smaller government. “To give big government power over life and death is rather concerning to a lot of us,” Lanese said Tuesday.

Despite the optimism, repealing Ohio’s death penalty is anything but a done deal. Senate President Larry Obhof, a Medina Republican, said earlier this month that it’s “unlikely” that the Ohio General Assembly would abolish the death penalty completely in the next year, adding that most lawmakers still favor executions in “particularly heinous cases.”...

Lanese said while she admires Kubbins’ optimism about lawmakers abolishing the death penalty within a year, such a move won’t happen overnight. “We’re going to chip away at this,” Lanese said. “I do know that this is a deeply held belief for a lot of people on both sides, so it’s going to take a lot of work – especially with conservatives.”

I am following this discussion so closely in part because I am based in Ohio and have former students involved in capital litigation.  But I also continue to view Ohio as an important bellwether, and I think it could prove especially significant foe there to be repeal of the death penalty in a state that has executed many persons in the past and that is currently controlled entirely by GOP officials.

Prior related posts:

February 18, 2020 in Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

"Trump grants clemency to 11, including former junk bond king Michael Milken"

I have previously noted in this post three of Prez Trump's the high-profile clemency recipients today — Blagojevich, DeBartolo and Kerik — and I could not help but note these three were all white men of relative privilege convicted of crimes of power.  But now I see this Los Angeles Times piece, which has the headline that serves as the title of this post, and I am learning that a total of 11 persons have received clemency from Prez Trump today:

President Trump Tuesday granted full pardons to seven convicted felons including Michael Milken, the former junk bond king who became a face of the insider trading financial scandals of the 1980s. An official White House statement praised Milken, who served two years in prison in the 1990s, was for his philanthropy.

Trump also commuted the sentence of former Illinois Gov. Rod Blagojevich, found guilty nine years ago for trying to sell an open U.S. Senate seat.  Trump announced the news at Joint Base Andrews as he embarked on a four-day west coast swing and just hours after the White House announced the first pardon, that of former San Francisco 49ers owner Edward DeBartolo, Jr., who was convicted in a gambling fraud scandal....

Trump also issued full pardons to Ariel Friedler, Paul Pogue, David Safavian and Angela Stanton. And he commuted sentences for three others: Tynice Nichole Hall, Crystal Munoz and Judith Negron. 

Here is the link to the "Statement from the Press Secretary Regarding Executive Grants of Clemency" providing lots of background on all these individuals. Because of the sentencing element, I find the commutations especially interesting and here is how they are described (with bolding in the original):

In addition, the President is commuting the sentences of four individuals who have paid their debts to society and have worked to improve their lives and the lives of others while incarcerated.

Rod Blagojevich was the Governor of Illinois from 2003 until 2009, when he was charged with, among other things, offering an appointment to the United States Senate in exchange for campaign contributions. He was convicted of those charges and sentenced to 14 years in prison. Although the Seventh Circuit reversed some of his convictions related to the Senate appointment, it did not alter his 14-year sentence. He has spent 8 years in prison. People from across the political spectrum and from varied backgrounds have expressed support for shortening Mr. Blagojevich’s sentence, including Senator Dick Durbin, Reverend Jesse Jackson, Sr., former Representative Bob Barr, Representatives Bobby Rush and Danny Davis, former Attorney General Eric Holder, and Bishop Byron Brazier. Additionally, more than a hundred of Mr. Blagojevich’s fellow inmates have written letters in support of reducing his sentence. During his confinement, Mr. Blagojevich has demonstrated exemplary character, devoting himself to improving the lives of his fellow prisoners. He tutors and teaches GED classes, mentors prisoners regarding personal and professional development, and speaks to them about their civic duties. Notwithstanding his lengthy sentence, Mr. Blagojevich also counsels inmates to believe in the justice system and to use their time in prison for self-improvement. His message has been to “keep faith, overcome fear, and never give up.”

Tynice Nichole Hall is a 36-year-old mother who has served nearly 14 years of an 18-year sentence for allowing her apartment to be used to distribute drugs. While in prison, Ms. Hall has completed a number of job-training programs and apprenticeships, as well as coursework towards a college degree. In addition, Ms. Hall has taught prison educational programs to other inmates. She has accepted responsibility for her past behavior and has worked hard to rehabilitate herself. Among those who support this grant of clemency are Clemency for All Non-Violent Drug Offenders Foundation, Alice Johnson, Dan Schneider, Matt Whitaker, Adam Brandon, Kevin Roberts, Brett Tolman, and John Hostettler.

Crystal Munoz has spent the past 12 years in prison as a result of a conviction for having played a small role in a marijuana smuggling ring. During this time, she has mentored people working to better their lives, volunteered with a hospice program, and demonstrated an extraordinary commitment to rehabilitation. The Texas A&M Criminal Defense Clinic, the Clemency for All Non-Violent Drug Offenders Foundation, Dan Schneider, Matt Whitaker, Adam Brandon, Kevin Roberts, Brett Tolman, John Hostettler, and Alice Johnson are among the many who support this grant of clemency.

Judith Negron is a 48-year-old wife and mother who was sentenced to 35 years in prison for her role as a minority-owner of a healthcare company engaged in a scheme to defraud the Federal Government. Ms. Negron has served 8 years of her sentence and has spent this time working to improve her life and the lives of her fellow inmates. Her prison warden and her counselor have written letters in support of clemency. According to her warden, Ms. Negron “has always shown herself to be a model inmate who works extremely well with others and has established a good working relationship with staff and inmates.” This grant of clemency is supported by the Clemency for All Non-Violent Drug Offenders Foundation, Dan Schneider, Matt Whitaker, Adam Brandon, Kevin Roberts, Brett Tolman, John Hostettler, and Alice Johnson, among others.

I am pretty sure based on postings at the CAN-DO site that Tynice Nichole Hall, Crystal Munoz and Judith Negron are all women of color.   Gosh darn that Prez Trump, who always seems to find a way to both confirm and refute criticisms of how he approaches criminal justice matters.

February 18, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (7)

Prez Trump pardons former 49ers owner amidst talk of clemency for former Illinois Gov and former NYPD commissioner

Prez Trump has his clemency pen out again, and a number of notable names are involved as per this breaking NBC News piece headlined "Trump expected to grant clemency to former Ill. Gov. Rod Blagojevich, ex-NYPD commissioner Bernard Kerik." Here is what is being reported just before 2pm:

President Donald Trump is expected to grant clemency to former Illinois Gov. Rod Blagojevich, who was impeached and removed from office in 2009 on corruption charges, and to former New York police commissioner Bernard Kerik, two people familiar with the president's plans said Tuesday.

The news comes hours after Trump signed an executive order granting a full pardon to former San Francisco 49ers owner Eddie DeBartolo Jr. related to a decades-old corruption charge.

Blagojevich, 63, was sentenced in 2011 to 14 years in federal prison on corruption charges related to his solicitation of bribes in an attempt to "sell" the Senate seat Barack Obama left open after being elected president. Blagojevich, a Democrat, has been serving his term at the low-security Federal Correctional Institute in Englewood, Colorado.  He was a contestant on Trump’s reality TV show "The Celebrity Apprentice" in 2010.

Kerik was sentenced in 2010 to four years in prison after pleading guilty to eight felony charges, including tax fraud.

The president said in August of last year that he was "very strongly" considering giving Blagojevich a reprieve — not the first he'd publicly floated the idea. "I'm thinking about commuting his sentence very strongly," Trump told reporters aboard Air Force One then. "I think it’s enough — seven years," he added, referring the amount of time the ex-governor has already served....

In 2018, in the weeks after he pardoned conservative provocateur Dinesh D'Souza, Trump had said he’d been “thinking about” taking the action on behalf of the ex-governor. Trump told reporters in May 2018 that Blagojevich had received a lengthy sentence "for being stupid and saying things that every other politician, you know, that many other politicians say” and “that he was treated unfairly.” The remarks were likely a reference to what the then-governor was picked up saying on secret federal wiretaps about his authority to appoint someone to Obama's open Senate seat.

Blagojevich has argued he was a victim of federal prosecutors run amok — a claim Trump himself levied at former special counsel Robert Mueller’s team, which investigated Russian interference in the 2016 election and the president. “Under the legal arguments that prosecutors used to convict me, all fundraising can be viewed as bribery," the ex-governor wrote in a 2018 op-ed in The Wall Street Journal that was widely viewed as a personal appeal to Trump for clemency.

Democrats — including Sen. Dick Durbin, D-Ill., and former Attorney General Eric Holder — have said publicly in the past that they’d support efforts by Trump to commute Blagojevich's sentence.

Notably, I blogged a few days ago about  of this recent USA Today commentary authored by Professor Nora Demleitner which noted that most people given clemency by Prez Trump are not disadvantaged people of color convicted of drug crimes like Alice Marie Johnson, but rather are white men of privilege convicted of crimes of power.  Blagojevich, DeBartolo and Kerik all fit that latter description.

A few (of many) prior related posts:

UPDATE: Here are new headlines seemingly confirming that two different forms of clemency have been granted to Blagojevich and Kerik:

February 18, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Effective looks at an effective look at the reality of community supervision

The-second-chance-club-9781982128593_lgI have now seen a number of positive review of the new book by Jason Hardy, The Second Chance Club: Hardship and Hope After Prison.  Here is the description of the book from the publisher's website:

A former parole officer shines a bright light on a huge yet hidden part of our justice system through the intertwining stories of seven parolees striving to survive the chaos that awaits them after prison in this illuminating and dramatic book.  Prompted by a dead-end retail job and a vague desire to increase the amount of justice in his hometown, Jason Hardy became a parole officer in New Orleans at the worst possible moment.  Louisiana’s incarceration rates were the highest in the US and his department’s caseload had just been increased to 220 “offenders” per parole officer, whereas the national average is around 100.  Almost immediately, he discovered that the biggest problem with our prison system is what we do — and don’t do — when people get out of prison.

Deprived of social support and jobs, these former convicts are often worse off than when they first entered prison and Hardy dramatizes their dilemmas with empathy and grace. He’s given unique access to their lives and a growing recognition of their struggles and takes on his job with the hope that he can change people’s fates — but he quickly learns otherwise.  The best Hardy and his colleagues can do is watch out for impending disaster and help clean up the mess left behind.  But he finds that some of his charges can muster the miraculous power to save themselves. By following these heroes, he both stokes our hope and fuels our outrage by showing us how most offenders, even those with the best intentions, end up back in prison — or dead — because the system systematically fails them. Our focus should be, he argues, to give offenders the tools they need to re-enter society which is not only humane but also vastly cheaper for taxpayers.

As immersive and dramatic as Evicted and as revelatory as The New Jim Crow, The Second Chance Club shows us how to solve the cruelest problems prisons create for offenders and society at large.

I hope to find time to read this new book, but in the meantime I have already seen these helpful substantive reviews from some notable reviewers:

February 18, 2020 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Monday, February 17, 2020

So much for a speedy resolution in the DC Circuit of the injunction currently precluding federal executions

Though SCOTUS is in the midst of a long all-star break, SCOTUSblog continues to post some notable new copy.  A couple of new posts on the death penalty caught my eye and are worthy reads:

The latter of these two posts notes that the "Department of Justice has recently announced its intention to resume federal executions, prompting challenges that are currently pending."  That last phrase reminded me that, as reported here, back in early December the Supreme Court denied an application to lift a lower court injunction precluding federal executions while stating that it would "expect that the Court of Appeals will render its decision with appropriate dispatch."  In a companion two-page statement authored by Justice Alito (joined by Justices Gorsuch and Kavanaugh) ended this way:

The Court has expressed the hope that the Court of Appeals will proceed with “appropriate dispatch,” and I see no reason why the Court of Appeals should not be able to decide this case, one way or the other, within the next 60 days.  The question, though important, is straightforward and has already been very ably briefed in considerable detail by both the Solicitor General and by the prisoners’ 17-attorney legal team.  For these reasons, I would state expressly in the order issued today that the denial of the application to vacate is without prejudice to the filing of a renewed application if the injunction is still in place 60 days from now.

We are now 73 days from when these matters were addressed by the Supreme Court on December 6, 2019, and these issues were argued before the DC Circuit now more than a month ago.  I am still expecting that an opinion will be coming from the DC Circuit this month, but the fact that we are already two week past the 60-day "recommendation" from Justice Alito serves as yet another reminder of how slowly the wheels of capital justice can turn.

Prior related posts:

February 17, 2020 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Spirited (but problematic?) advocacy for Bernie Madoff to receive compassionate relief

The New York Times has this notable new opinion piece authored by headlined "Let Bernie Madoff, and Many More, Out of Prison: Compassionate release has to apply to unsympathetic prisoners, if we mean what we say about ending mass incarceration."  I think the spirit of this piece is quite sound, but I am not entirely sold on all of its particulars.  Here are excerpts (with a few lines emphasized for comments to follow):

Recently, Mr. Madoff re-entered the news, as he filed for compassionate release from federal prison.  He is entering the final stages of kidney disease and has less than 18 months to live. The Bureau of Prisons denied his petition, as it does to 94 percent of those filed by incarcerated people.  But the reforms provided in the First Step Act of 2018 allow him to file an appeal with the sentencing court.

Even some who claim to detest the ravages of mass incarceration argue that Mr. Madoff should be denied compassionate release.  He is as close to the financial equivalent of a serial killer as one might encounter.  Still, there is a good argument to be made for compassionate release.  It has little to do with Bernie Madoff, though, and how we feel about his horrendous actions.

If our societal goal is to reduce incarceration, we are going to have to confront the inconvenient truth that retribution cannot be our only penological aim, and justice for victims has to be much more extensive than the incarceration of those who have caused them harm.  We desperately need to shift our cultural impulse to punish harshly and degradingly, and for long periods.

The visceral, retributive reactions to Mr. Madoff’s petition, including from liberals who claim to want to end mass incarceration, reveal the obstacles to transformational criminal justice reform.  The truth is, there is only a small number of entirely “sympathetic” people in prisons who could be released without any scruples by the public or affront to their victims.  Those incarcerated for violent offenses compose a vast majority of our prison population, in spite of a false narrative that most people are in there for nonviolent drug offenses.  The pain and harm experienced by their victims is real, and that’s also true for Mr. Madoff’s victims.  But criminal justice policy cannot be constructed in response to our feelings about individual, high-profile cases — the so-called worst of the worst. 

This “worst of the worst” argument, for example, has long undergirded the death penalty, which still stands in 30 states despite its racial and class biases and other flaws that have led hundreds of innocent people to death row.  It is also part of why the Democratic presidential candidates, with the exception of Bernie Sanders, don’t support the enfranchisement of those in prison.  But creating a separate category for Mr. Madoff, sex offenders or those “others” in the criminal justice system will not help end mass incarceration.  There will always be another high-profile case that can impede the implementation of more humane policies.

Those on the left who press for criminal justice reform emphasize “empathy” in their attempts to reframe the conversation about people who have committed crimes. Conservatives use the word “redemption.”  These words carry a profound responsibility: What do they mean for sympathetic and unsympathetic prisoners?  There are 200,000 people over the age of 55 incarcerated in the United States.  The question of compassionate release for Mr. Madoff affects not only him but these others and their victims as well.

Mr. Madoff lost both his sons while incarcerated (one died of cancer) and was unable to attend their funerals; is a social pariah, almost universally condemned; and has spent 11 years in federal prison.  This is not to say he deserves sympathy, but he has been punished.  In Norway, where Anders Breivik was sentenced to 21 years in prison for a horrific mass murder, 11 years would be considered harsh enough.  Our American punitiveness has distorted our sense of what is an adequate sentence for serious offenses.

When considering compassionate release, we also have to ask: Has the person been rehabilitated?  Does the punishment serve legitimate penological objectives (like deterrence and public safety) other than retribution?  (Something to consider, for instance: The number of Ponzi schemes prosecuted went up, not down after Mr. Madoff’s incarceration.)

Criminal justice reform will fall far short of the dramatic institutional changes needed if the dominant impulse continues to be retribution, and if high-profile cases continue to drive policy.  Compassionate release for those who are aging, terminally ill and dying should be assumed after they’ve served at least 10 years.  It was the offenders’ worst impulses that led them to commit their crimes.  Our justice system should appeal to our higher ethical ambitions.

I agree fully that "retribution cannot be our only penological aim, and justice for victims has to be much more extensive than the incarceration of those who have caused them harm." I also agree fully that criminal justice policy should not "be constructed in response to our feelings about individual, high-profile cases — the so-called worst of the worst" and that we should be troubled if "high-profile cases continue to drive policy." And whether a person has been rehabilitated also seem to me to be an important consideration here.  But I am not sure granting compassionate relief to Bernie Madoff furthers these interests, and I worry it could undermine them.

For starters, it is critical at this stage to realize that we are not really dealing with a "policy" matter, as the FIRST STEP Act altered the policy for compassionate relief and did so in a way that included Bernie Madoff and all other federal prisoners.  Though the FIRST STEP Act has some "worst of the worst" carve-outs in other parts of the Act, but its new process for pursuing compassionate relief applies to all federal prisoners (which is one reason I think it is such an important and valuable part of the Act).  in other words, in this context there is no need to worry about creating any "separate category for Mr. Madoff, sex offenders or those 'others' in the criminal justice system."  If a federal judge decided to deny Madoff compassionate relief, after considering all the facts of Madoff's case and all the factors of 3553(a), that judge will be adjudicating and resolving a single case, not creating any broad "criminal justice policy."

As to the facts of Madoff's case, I have seen little evidence that Madoff has been truly remorseful or rehabilitated.  In fact, this 2016 ABC News article reports that "Madoff has done little to express his remorse or regret to the estimated 20,000 investors in his scheme, many of whom lost their life savings in the $64 billion fraud.  Other than a brief reference to his victims during his sentencing hearing, Madoff has spent a lot of his time behind bars in an effort to rehabilitate his own image and actually shift the blame to the investors for expecting unrealistic returns which he claims is why he set up his fraud."   And though surely Madoff's victims may not speak in one voice on these matters, I suspect many are open to a vision of "justice ... much more extensive than the incarceration," but are concerned that they have not seen any other form of extensive justice achieved here (though a whole lot of assets have been recovered after a decade of work).  Madoff not only committed arguably the worst white-collar offense in US history, but it seems he has not really done all that much to try to make amends.

Though I may be getting too nitpicky here, I wanted to comment on this piece because I found one particular sentence to be particularly disturbing: "The truth is, there is only a small number of entirely “sympathetic” people in prisons who could be released without any scruples by the public or affront to their victims."  The truth is, there are tens of thousands, probably hundreds of thousands, of entirely "sympathetic" people in US prisons who could be released without any scruples by the public or affront to their victims.  Just a quick look at "The Whole Pie" of incarceration shows over 275,000 persons imprisoned for drug offenses and another 200,000 in for "public order" offenses.  Not all of these the underlying crimes were victimless, but even if only one of every ten of these prisoners are "sympathetic," that still gets us to nearly 50,000 sympathetic prisons to consider for release.  Mass incarceration is so very troubling in part because there really are quite a large number of sympathetic cases, and I am particularly eager for there to be continued efforts to give voice to, and get relief for, the huge number of sympathetic folks wasting time (and taxpayer resources) in unduly lengthy prison terms.

This piece rightly notes "there are 200,000 people over the age of 55 incarcerated in the United States" and it is rightly concerned that "compassionate release for Mr. Madoff affects not only him but these others and their victims as well."  But these data and my fears tethered to Madoff's failure to demonstrate remorse run the argument the other way in my view: though I hope there would not be a backlash were Madoff to receive compassionate relief, I worry he could become the poster child for restricting this important relief mechanism for tens of thousands of other prisoners who would seem a lot more sympathetic.  That said, I do like imagining a (realistic?) future in which a decision to release Madoff prompts many more federal judges to grant compassionate release to many more federal prisoners.

Prior related post:

February 17, 2020 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (1)

"Pathways to Reintegration: Criminal Record Reforms in 2019"

The title of this post is the title of this terrific new report from the Collateral Consequences Resource Center authored by Margaret Love and David Schlussel. (I noted in this post a few weeks ago the series of reviews of new laws in place in 2019 on a range of collateral-consequences-related concerns, and I believe this new report brings all of this important material together.)  Here is part of this report's introduction:  

In 2019, 43 states, the District of Columbia, and the federal government enacted an extraordinary 152 laws aimed at reducing barriers faced by people with criminal records in the workplace, at the ballot box, and in many other areas of daily life.  This prolific legislative track record, augmented by one important executive order, reflects a lively national conversation about how best to limit unwarranted record-based discrimination and to promote reintegration.

Last year, we reported what was then an unprecedented number of new record reform laws: 32 states enacted 57 new laws in 2018. In terms of the number of new laws enacted and their importance, 2019 breaks every record set in 2018.  Lawmakers across the country took major actions to restore voting and other civil rights; authorize expungement and other forms of record relief; expand diversion programs to avoid conviction; limit the use of criminal records in occupational licensing, employment, and housing; alleviate immigration consequences; and curb driver’s license penalties unrelated to driving offenses. Approaches to relief varied widely from state to state, with respect to the type of relief, the specifics of who is eligible for it, the mechanics of delivery, and its effect.

This report on 2019 criminal record reforms continues CCRC’s efforts to document an extraordinarily fruitful period of law reform in the United States, one that began around 2013 and has continued to gather steam into 2020.  The overall purpose of this law reform movement has been to advance a public policy of promoting reintegration for people with a criminal record.  In the seven-year period in which CCRC has been following the trend, every state legislature and the federal government has taken at least some steps to chip away at the negative effects of a criminal record on an individual’s ability to earn a living, access housing, education and public benefits, and otherwise fully participate in society.

This introduction highlights key developments from this past year.  A Report Card, new this year, grades the progess of the most (and least) productive state legislatures in 2019. The body of the report provides topical discussions of reform measures, and is followed by an appendix that organizes the laws enacted by jurisdiction.  A link to the text of each law is included, as well as a statutory citation where available.  More detailed information about each state’s laws is available in the CCRC Restoration of Rights Project.

February 17, 2020 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Sunday, February 16, 2020

As Virginia and other states consider expanding parole, might the federal system do the same in a SECOND STEP Act?

In this 2017 Federal Probation article, titled "Reflecting on Parole's Abolition in the Federal Sentencing System," I imagined various ways modern federal sentencing reform might have been less problematic if some form of parole had been retained in the Sentencing Reform Act of 1984.  I also noted how the legislation that became the FIRST STEP Act served as a kind of "parole light" while also explaining why I thought reformers "troubled by the punitive policies that the SRA helped usher into the federal system ought to think about talking up the concept of federal parole anew."

This not-so-old-but-already-dated article came to mind as I saw this piece from the New York Times this week under the full headline "‘It Didn’t Work:’ States That Ended Parole for Violent Crimes Are Thinking Again; Virginia, newly dominated by Democrats, may broaden parole for the first time in a generation. Others states are watching."  Here are excerpts:

After Zenas Barnes was convicted of three robberies in the 1990s, he accepted a plea deal that stunned even veteran lawyers for its severity: 150 years in state prison. Mr. Barnes, who was 21 at the time, said that he had not realized when he took the deal that the Virginia Legislature had, only months before, abolished the most common type of parole, meaning that there was a good chance he would die in prison.

Twenty-five years later, the State Legislature, newly dominated by Democrats, is poised to broaden parole for the first time in a generation.  The move would give Mr. Barnes and thousands of other prisoners convicted of violent crimes a chance for parole, which allows inmates to be released early.

Watching closely are lawmakers across the nation, including in California, New York, Illinois and Pennsylvania.  Like Virginia those states decades ago virtually eliminated discretionary parole, granted by appointed boards on a conditional basis, during an era of surging violent crime and the imposition of progressively harsher punishments.

“We thought we were fighting crime, and it didn’t work,” said David Marsden, a Democratic state senator in Virginia, who has previously introduced bills to restore parole but was blocked by Republican majorities.  “But more recently, we’ve stopped trying to teach lessons and started trying to solve problems.  People are now more likely to believe that people deserve a second chance.”...

Even in Virginia, where Democrats won majorities in both chambers of the Legislature in November, and which also has a Democratic governor, Ralph Northam, the question of expanding parole remains politically perilous.  This month, Democrats shelved a bill that would have restored the possibility of parole for nearly 17,000 inmates — more than half the state’s prison population.  Instead, Democrats have focused on more modest efforts to restore parole to older inmates.

“The prevailing attitude of policymakers is we’ve come to the limit because they don’t want to release violent offenders,” said Marc Mauer, executive director of the Sentencing Project, a nonprofit that advocates shorter sentences and other policy changes to the criminal justice system.  There is no significant difference in violent crime rates between states that allow parole and those that do not, according to federal data.  But Mr. Mauer said many people associate parolees with recidivism and violence, and their crimes often garner significant public attention.

Republican lawmakers have warned that restoring parole would make Virginia — which has the fourth lowest violent crime rate of any state — more dangerous.  “When parole is granted, it will result in violent criminals being released into our communities,” said Robert Bell, a Republican member of the House of Delegates.  Mr. Bell added that parole “will force victims of violent crimes and their families to relive the worst day of their lives over and over again.”...

Both chambers of the Virginia Legislature have already approved a bill that would make hundreds of prison inmates eligible for parole because they were convicted by juries that were not informed by courts that defendants were no longer eligible for parole after the practice was abolished in 1995.  Governor Northam has said he will support it.

Mr. Northam has also said he supports a bill that would grant parole eligibility to prisoners who are older than 50, a group that may number in the thousands.  He has not yet said whether he would sign a measure that would restore the possibility of parole to thousands of inmates who have served 20 years or more of their sentences.  Both bills are expected to be passed by both chambers of the Legislature.  The governor has not taken a position on the shelved bill that would have restored the possibility of parole for more than half the state’s prison population.

I think it wise for any parole reform, at the state or federal level, to move forward incrementally.  Given the Supreme Court's Eighth Amendment rulings, jurisdictions ought to have general parole mechanism that are available to all young offenders sentenced to very long prison terms.  Likewise, public safety concerns would be minimized if and when parole eligibility is at least initially focused upon defendants imprisoned for long periods for non-violent offenses (especially for first offenses and for offenses without victims).

Notably, the federal prison system likely has many more defendants imprisoned for long periods for non-violent offenses than do state systems because, according to federal prison data, roughly 40% of federal prisoners are incarcerated for drug offenses and nearly half are serving terms of 10 years or longer.  In other words, I think the federal system would be one in which it would be ideal to develop a new modern (and initially modest) system of parole.

Notably, as reported in this post back in November, at a Senate Judiciary oversight hearing with the head of the federal Bureau of Prisons, Senator Lindsay Graham raised the idea of "reinstituting parole in the federal system."  I am sorry we have not yet seen any follow-up on this idea from Senator Graham or others, but I am encouraged that parole appears to no longer be a dirty word in various criminal justice reform conversations.  And, as the title of this post indicates, I think it would be a great idea to include in any SECOND STEP federal reform proposals to follow up the "parole light" elements in the FIRST STEP Act.

February 16, 2020 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Over 1000 former DOJ employees calling for Attorney General William Barr to resign

As this Politico piece details, "more than 1,100 former Justice Department employees have signed an online petition pressing Attorney General Bill Barr to resign and commending the four prosecutors who withdrew from the Roger Stone case."  In this context, I am tempted to make a sour joke that it would seem that AG Barr's eagerness to recommend a below-guideline sentence for a non-violent first offender finally  crossed a line in the sand in the eyes of all these former DOJ employees.  But, of course, this controversy has much more to do with political interference rather than with sentencing decision-making (although I recall few took note when DOJ decided to seek the death penalty in a high-profile New York case after Prez Trump tweeted they should).

Here is more from the Politico piece about the online petition (which is available here and it still seeking signatures):

Last week, all four prosecutors quit the Stone case after what they perceived as interference from the White House.  The prosecutors had recommended a seven- to nine-year prison sentence after Stone — President Donald Trump’s longtime friend — was convicted of lying to Congress and of obstruction....

Barr and other top officials then pushed for a softer prison recommendation in a revised filing that offered no specific sentence term, though the attorney general has said he didn’t speak to the president about it.  The sentencing is set for Thursday, though the judge has set a conference call with the lawyers in the case for Tuesday.

“Such behavior is a grave threat to the fair administration of justice.  In this nation, we are all equal before the law.  A person should not be given special treatment in a criminal prosecution because they are a close political ally of the President,” the online petition read. Signatures for the letter were gathered by Protect Democracy, a nonprofit legal group that had also gathered signatures for a letter claiming the Mueller report presented enough evidence to charge Trump with obstruction of justice. That letter was also critical of Barr.

The petition's signatories include Justice Department employees dating back to the administrations of President Dwight Eisenhower and President John F. Kennedy, though most are of more recent vintage.  Among them are three who served as assistant attorney general: Sanford Litvack, Jimmy Gurule and Laurie Robinson. The current total is 1,143, though Protect Democracy said it would continue to add names.

The former Justice Department employees welcomed Barr’s “belated acknowledgment that the DOJ’s law enforcement decisions must be independent of politics.”  On Thursday, Barr had offered a rare rebuke of his boss, telling ABC, "I think it's time to stop the tweeting about Department of Justice criminal cases.”

However, the online petition read, “Mr. Barr’s actions in doing the President’s personal bidding unfortunately speak louder than his words.  Those actions, and the damage they have done to the Department of Justice’s reputation for integrity and the rule of law, require Mr. Barr to resign.” 

Since they said they had little expectation Barr would actually step down, the former employees called on the Justice Department’s career officials to report unethical conduct.  They applauded the prosecutors for upholding their oaths and standing up for the department’s independence.  “We call on every DOJ employee to follow their heroic example and be prepared to report future abuses to the Inspector General, the Office of Professional Responsibility, and Congress; to refuse to carry out directives that are inconsistent with their oaths of office; to withdraw from cases that involve such directives or other misconduct; and, if necessary, to resign and report publicly — in a manner consistent with professional ethics — to the American people the reasons for their resignation.”

Prior related posts:

UPDATE: One notable former DOJ employee, namely Donald Ayer, former Deputy AG for Prez George H. W. Bush, has this notable new extended Atlantic piece under the full headline "Bill Barr Must Resign: The attorney general is working to destroy the integrity and independence of the Justice Department, in order to make Donald Trump a president who can operate above the law."

February 16, 2020 in Criminal justice in the Trump Administration, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5)

"Don't be fooled by slick ad. Most people given clemency by Trump don't look like Alice Marie Johnson."

N_msnbc_trumppardon_180825_1920x1080The title of this post is the headline of this recent USA Today commentary authored by Nora Demleitner.  I recommend this piece in full, and here are excerpts:  

Alice Marie Johnson, whose life term President Donald Trump cut short, was the star of a Super Bowl ad. It portrayed Trump as the country’s leading criminal justice reformer, a man who actively and compassionately assists the downtrodden.  As is standard fare for Trump, the ad was based on half-truths and misleading claims. But that is not its worst feature.  The ad was a cynical ploy to provide white voters with a feel-good message and an argument to rebut charges of Trump's racism.  At the same time, it reinforced the message of black criminality....

The spot conflated two federal criminal justice issues — the First Step Act and presidential clemency power.  The president commuted Johnson’s sentence, which led to her immediate release from prison.  She had served 21 years of a life sentence for a nonviolent drug conviction. Reality TV star Kim Kardashian West championed Johnson’s case, even visiting the White House to make her argument.  Johnson is one of only 24 people to receive clemency under the Trump administration, according to a list on the Department of Justice website.

Presumably, the reference to the release of thousands was to the president signing the First Step Act.  The act has led to the early release of a good number of federal inmates. It retroactively decreased crack cocaine sentences and added other mechanisms, such as expansion of compassionate release....

The ad failed to indicate that both of the president’s attorneys general have insisted on continuing federal policies that have fueled the nation's mass incarceration and increased disparities seen in the criminal justice system against black and brown people.  The Department of Justice has opposed First Step Act sentence reductions and releases.  The department has also vilified progressive local prosecutors who have implemented reforms (which include not going after low-level drug offenders or choosing to divert cases from the criminal justice system).  At best, one could call this administration’s record on criminal justice reform mixed, at worst hypocritical....

Most of the people Trump has given clemency to did not look like Johnson.  Of the other five commutations the president has issued so far, only one involved another drug offender, and that offender was not African American.  In addition to the commutations, Trump has handed out 18 pardons.  Rather than uniting thousands of families, as the ad claimed, Trump has used his clemency power to reunite just two dozen.

And the majority of his clemencies have been politically motivated.  Joe Arpaio, the notorious Maricopa County sheriff, received one even before he was sentenced. Others went to men like Scooter Libby, a former aide to Vice President Dick Cheney; Dinesh D’Souza, a right-wing commentator; Conrad Black, a former media mogul and Trump biographer; and Pat Nolan, a former Republican lawmaker....

Only two of Trump's best known acts of clemency have gone to African Americans.  One went to the above mentioned Johnson, featured in the Super Bowl ad, and the other went, posthumously, to Jack Johnson.  The famous boxer was sentenced in 1920 for violating the Mann Act, when he traveled with a white woman he was in a relationship with across state lines.  But two is hardly anything to brag about.

In fact, Trump has done less for nonviolent drug offenders with his commutation powers than many of his predecessors, including Barack Obama, a president Trump seems obsessed with outdoing.  Within his first three years in office, President Obama had given clemency to only 18 people compared with Trump's 24.  But of those whose sentences Obama either pardoned or commuted, the majority, 11, had been incarcerated on nonviolent drug offenses. Only four of the people given clemency under Trump were nonviolent drug offenders.

The Alice Johnson ad falsely appeases voters who may be concerned that Trump isn't addressing racial inequities in our criminal justice system and who may even be troubled by the president’s racist language.  We need a visual of the true beneficiaries of this president’s clemency power: A gallery of white, Republican men.

A google search helped me find the above image showing nine of the two dozen persons to get a pardon or a commutation from President Trump.  The image above certainly over-represents people of color among the full group, as I think every single other clemency recipient is am white man.

Covering somewhat similar group, the Washington Post ran this interesting piece by Philip Bump under the headline "Trump’s approach to crime and punishment is centered on his own power: The inverted criminal justice of President Trump." The piece helps highlight just why, given the ultimate leader in charge, criminal justice work in the Trump Administration is likely always certain to be "mixed."

February 16, 2020 in Clemency and Pardons, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (0)

Can a new conservative group help get the death penalty abolished in Ohio?

The question in the title of this post is prompted by this recent local press piece, headlined "Conservative group vows to end the death penalty."  Here are excerpts:

Activists have pushed to end the death penalty for years but there's a new effort to abolish it by a new group of more recent converts — conservative Republicans.  "Conservatives Concerned with the Death Penalty" includes prominent former lawmakers like Governor Bob Taft and former Congressman Pat Tiberi.

Governor Mike DeWine has delayed several upcoming executions because the state's previous methods of lethal injection are on hold in the courts. An alternative that will pass legal muster hasn't been figured out. House Speaker Larry Householder said in December the death penalty may not be enforceable.

“I’ve been pro-death penalty pretty much my entire career as a political operative," said Michael Hartley, a Republican operative for more than 20 years.  Hartley said he saw the toll executions had on the attorneys general and governors he worked for and that made him re-evaluate his stance.  “It is a pro-life state, it’s a fiscally responsible state and when you look at that, a lot of people question if it matches their values," he said. “We can’t even deliver our own mail.  Why should they be in charge of executing humans?”

He is part of the group "Conservatives Concerned with the Death Penalty."  That group will formally launch in Ohio on Tuesday....  Hartley said some conservatives have soured on the death penalty because it doesn't make fiscal sense. Executing an inmate costs more money in legal fees than imprisoning them for life.  Morally, Hartley said he can't stand for it after learning of people being exonerated after they've already been killed. “If we’ve executed one person that was innocent, this shouldn’t exist," Hartley said.

When state lawmakers might vote on abolishing the death penalty is unknown.  Not all Republicans, who have large majorities in both the Ohio House and Senate, have changed their minds about it.  Hartley said if Ohio were to end the death penalty, it could spark similar bans across the Midwest and rest of the nation.

This press notice from the national Conservatives Concerned About the Death Penalty group reports on speakers schedule for an Tuesday morning press conference that includes one active member of the Ohio General Assembly, namely Representative Laura Lanese, R-Grove City.  If there were another dozen or so Republican Ohio House members prepared to support abolition (and a comparable number in the state Senate), I might actually start thinking this could possibly happen.

Prior related posts:

February 16, 2020 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (1)

Friday, February 14, 2020

Call for Papers for Justice System Journal: "Justice for All: Empirical Research on Indigent Defense"

I am always happy, indeed eager, for this blog to be a forum for noting calls for papers and/or events of interest to criminal justice academics, practitioners and advocates. To that end, I am happy to be able to post this posting titled "Call for Papers! IDRA and the Justice System Journal team up":

IDRA is pleased to announce the following Call for Papers for a volume of indigent defense research in the prestigious Justice System Journal.  Please consider submitting your manuscripts, and get in touch with any questions!

Call for Papers
Special Issue of Justice System Journal
Justice for All: Empirical Research on Indigent Defense

Justice System Journal will publish a special issue titled “Justice for All: Empirical Research on Indigent Defense.” This special issue will be guest-edited by Prof. Janet Moore of University of Cincinnati College of Law, and Dr. Andrew Davies of the Deason Criminal Justice Reform Center at Southern Methodist University. Moore and Davies co-founded the Indigent Defense Research Association in 2015.

Empirical researchers have turned their attention to indigent defense in new ways in the last several years. Their work has revealed new insights into the nature and importance of indigent defense systems and attorneys. It has generated evidence of the impact defense services can have, expanded theoretical understanding, and occasionally called core assumptions into question. This new scholarship has generated fresh debate about the value of defenders to criminal legal systems, the scope and purpose of their work, and whether they counteract or reproduce oppressive aspects of those systems.

Authors seeking to participate in these debates are strongly encouraged to consider submitting their work for this Special Issue. Submissions of original empirical work on any topic concerning criminal defense services for those unable to afford counsel will be considered. In keeping with the theoretical and methodological diversity of the field, the editors welcome work utilizing a range of methodologies, and work which examines issues at the a local, state, national, or even international level.

Possible topics for manuscripts include, but are not limited, to:

  • Explorations and explanations of how defense policy is made across places or over time (including factors affecting resources given to defense, defense/prosecution resource disparities, policies restricting or extending access to defense counsel, etc.);
  • Evaluations of programs and policies in defense services, and comparisons of program alternatives;
  • Examinations of the impacts of caseloads, attorney training, or other resources on defense services;
  • Analyses of the importance of contextual factors such as rurality, demographic diversity, political circumstances, or courtroom dynamics, for defense services;
  • Research on the impact of defense services themselves on local legal culture and local communities, including through participation in criminal legal system reform initiatives;
  • Studies which seek to improve understanding of the experiences of people who need public defense, their lawyers, and other members of the legal team (e.g., investigators, social workers, defense system managers).

Articles intended for consideration for inclusion in this issue should be submitted by May 15, 2020, via the journal’s online submission process.  Questions about potential submissions should be directed to Andrew Davies (albdavies@smu.edu).

February 14, 2020 in Recommended reading, Who Sentences | Permalink | Comments (0)

Five years after problematic executions led to halt, Oklahoma plans to restart its machinery of death

As reported in this press piece, headlined "Oklahoma to resume injection executions, 5 years after drug mix-ups, national ridicule," the Sooner State is talking about getting back to carrying out death sentences. Here are the basics:

Oklahoma will resume executions by the lethal injection method, officials said Thursday.  The surprise announcement came at a news conference by Gov. Kevin Stitt, Attorney General Mike Hunter and Corrections Department Director Scott Crow.

Efforts will continue to develop a way to carry out the punishment with nitrogen gas, officials said.  However, the law allowing the state to develop a method using nitrogen gas only allows nitrogen to be used if the drugs for lethal injection are unavailable.

It has been more than five years since the last execution in the state.  The death penalty still has widespread support in Oklahoma despite the national ridicule that followed an injection mistake in 2014 and drug mix-ups in 2015.

"It is important that the state is implementing our death penalty law with a procedure that is humane and swift for those convicted of the most heinous of crimes," Gov. Stitt said. "Director Crow and Attorney General Mike Hunter have worked diligently and thoroughly to create a path forward to resume the death penalty in Oklahoma, and the time has come to deliver accountability and justice to the victims who have suffered unthinkable loss and pain."

More than 40 murderers are awaiting execution in the state.  Almost 30 have exhausted their appeals and are eligible to have execution dates set.  The last scheduled execution, on Sept. 30, 2015, was called off after a doctor discovered the wrong deadly drug had been supplied.  Executions have been on hold in Oklahoma because of that mix-up. Officials acknowledged afterward that the same mistake had been made in the execution carried out in January 2015....

The three drugs used for executions will continue to be midazolam, vecuronium bromide and potassium chloride. Two years ago, officials announced Oklahoma would switch to using nitrogen gas because of the problems associated with the lethal injection method.  The Corrections Department director at the time complained that it was increasingly difficult to find a reliable supplier of the drugs.  "I was calling all around the world, to the back streets of the Indian subcontinent, to procure drugs," Director Joe Allbaugh said.

Since that announcement, officials have been working on a way to carry out executions with nitrogen gas, a method never used in the United States for the death penalty. Allbaugh said a year ago he had yet to find a manufacturer of a gas delivery device willing to sell it for use in executions.  Officials have discussed building a device on their own.

February 14, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

Thursday, February 13, 2020

Just some (of lots and lots of) commentary about Roger Stone(d) federal sentencing process

Unsurprisingly, lots of folks have lots of things to say about the upcoming federal sentencing of Roger Stone and the sentencing process and controversy that has already unfolded.  Here are links and short passages from three notable pieces that recently caught my eye:

From Jacob Sullum at Reason, "Roger Stone Deserves a Lighter Sentence, but Not Because He Is Trump's Buddy":

This week President Donald Trump and his appointees at the Justice Department intervened in the sentencing of Roger Stone, a longtime Trump crony who was convicted last November of obstructing a congressional investigation, lying to a congressional committee, and witness tampering. Yesterday, the day after four prosecutors assigned to the case recommended a sentence of seven to nine years, Timothy Shea, the interim U.S. attorney for the District of Columbia, overrode them, suggesting "a sentence of incarceration far less" than the one originally proposed.

That reversal, which came after Trump called the original recommendation "horrible and very unfair," is unseemly and smacks of legal favoritism. At the same time, a prison sentence of seven to nine years is disproportionate given the nature and consequences of Stone's crimes....

Regardless of its motivation, the revised memorandum is admirably measured and fair-minded, noting that prosecutors have a duty to pursue justice, not simply to clobber defendants with the heaviest penalties the law allows. It would substantially improve the quality of justice in this country if prosecutors more often took that approach with defendants who are not the president's buddies.

From Andrew McCarthy at The National Review, "The Roger Stone Sentencing Fiasco":

But for his connection to Trump, Stone would never have been pursued in a collusion fever dream that Mueller’s prosecutors knew was bogus when they charged him. Yet his crimes, while exaggerated, were real. He was convicted by a jury and, under federal law, that presumptively warrants incarceration, though he could be spared by the judge (whom the president has picked a strange time to antagonize). If the president thinks that Stone and Flynn (among others) have been given a raw deal, the Constitution empowers him to pardon them, or at least commute their sentences.

If President Trump is afraid, in an election year, to take the political hit that a pardon for Stone would entail, that is understandable. But then he should bite his tongue and click out of Twitter. The Justice Department’s job is to process cases, including Mueller cases, pursuant to law. If the president wants to make those cases disappear, he has to do it himself and be accountable. His provocative running commentary only ensures that the DOJ will be accused of kowtowing to him. It also guarantees that, if the ongoing criminal probe of the Russiagate investigation eventually yields any indictments, they will be assailed as political persecutions rather than good-faith law enforcement.

From David Oscar Marcus at The Hill, "Let's use Roger Stone's case to fix our broken justice system":

People are rightly upset that DOJ is saying that the sentencing guidelines apply to everyone — except the president’s friends.  That’s a huge problem, and it’s no wonder that the prosecutors handling the case resigned.  How can they go into court every day and ask for monster sentences across the board except for FOT (Friends of Trump)?

But the larger problem, and the one that no one is talking about, is that the system itself is fatally flawed because it is set up for prosecutors and judges to issue unjustifiably harsh sentences.  Stone shouldn’t be thrown in a cage for 7-9 years — and neither should any other first-time non-violent offender.  There are two important fixes available:

First, we should abandon the sentencing guidelines.  Often prosecutors fall back on the sentencing guidelines for cover when asking for these crazy high sentences. Those “guidelines” are a complicated point system that calculate potential sentences by adding and subtracting points based on factors like the amount of loss, whether the person is a leader, and so on.  The problem with this point system is that it is not based on any empirical data or study. The numbers are plucked out of thin air.  Further, they don’t take into account the characteristics of the individual being sentenced.  Has the defendant led a good life?  Did she serve in the military?  Donate to charity?  Raise a good family?  The guidelines don’t care.  The Supreme Court recognized these problems and said that judges should simply consult the guidelines but should not be bound by them.  That was a good start, but the truth is that they aren’t even worth consulting.  They don’t work, and — since their implementation back in 1984 — our jail population has exploded.

Second, we should eliminate the trial tax.  This case is a good example of the trial tax in action. Had Stone pleaded guilty, he would have been looking at a sentence of closer to 24 months under the guidelines.  And had he met with prosecutors and cooperated, he likely would have been sentenced to probation.  Because he had the audacity to go to trial, his sentence goes from probation to 7-9 years.  It’s no wonder that innocent people plead guilty. It’s no wonder that trials are vanishing.  Before the sentencing guidelines and the trial tax, 20 percent of cases went to trial.  Now it’s less than 3 percent.  That is pretty stark evidence that the trial tax has become too severe.

Lots of people are rightly saying that Trump was wrong to jump in for his friend and overrule the line prosecutors’ sentencing recommendation.  But what was wrong about it was not overruling an overly harsh sentence.  What was wrong about it was that he did it for a friend instead of across the board. We are in bad need of criminal justice reform. Let’s overrule all of these insane sentencing recommendations for first time non-violent offenders — not just the FOT.

Prior related posts:

February 13, 2020 in Celebrity sentencings, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (0)

Oklahoma ballot initiative (State Question 805) seeks to block non-violent prior convictions from enhancing statutory range of punishment

Thanks to an ACLU event, I just learned that Oklahoma criminal justice reform advocates are working toward bringing a fascinating (and potentially far-reaching) new reform proposal directly to the voters.  This local press piece from a few weeks ago explains the basics:

Criminal justice reform advocates want to amend the Oklahoma Constitution to prohibit sentence enhancements based on previous felonies for nonviolent offenders. The measure would also allow nonviolent offenders serving enhanced sentences to seek a modification in court.

“A former conviction for one or more felonies shall not be used to enhance the statutorily allowable range of punishment, including but not limited to minimum and maximum terms, for a person convicted, whether by trial or plea of guilty or nolo contendere, of a felony,” reads the proposed measure [which is available here].  I This measure would not apply to those who have been convicted of a violent felony as defined by Oklahoma Statutes. This includes assault, battery, murder, manslaughter, kidnapping, child abuse, rape and human trafficking.

Oklahomans for Sentencing Reform, a bipartisan coalition championing the measure, filed the petition in November and began collecting signatures [in December]. State Question 805 requires nearly 178,000 signatures by 5 p.m. March 26 to be put to a statewide vote in 2020.

“The reality is that Oklahoma has an incarceration crisis,” said Kris Steele, executive director of Oklahomans for Criminal Justice Reform (OCJR). “We have the second-highest incarceration rate per capita of any state in the United States, and we have the highest female incarceration rate in the nation. Unfortunately, we’ve held that distinction since 1991, and the disparity in the number of women we incarcerate continues to grow.”

According to a 2019 report by FWD.us, Oklahoma sends more people to prison than other states, especially for nonviolent crimes, and keeps them incarcerated for much longer. Eight in 10 women go to prison for nonviolent offenses. “Research has shown these long stays in prison have little or no effect on recidivism when people come home,” reads the report. “At the same time, these extra weeks, months and years place emotional and financial burdens on the families of those incarcerated.”

Proponents of the initiative say the state’s incarceration crisis is driven in large part by enhanced sentences, and they hope momentum from recent criminal justice reforms help the initiative succeed. “We’ve been working on responsible criminal justice reform for over a decade, and the good news is that support among voters continues to grow,” Steele said. “We have seen some tremendous momentum in recent years, and we are hoping to build on that momentum and deepen the conversation level of understanding and support statewide for a more effective approach to public safety.”

Gov. Kevin Stitt has publicly opposed the initiative, saying a constitutional amendment is the wrong way to go about criminal justice reform. Steele argues that a constitutional amendment would prevent lawmakers from trying to repeal the measure if approved by voters. He cited an attempt to repeal State Questions 780 and 781 only months after they were approved in November 2016....

District attorneys across the state have also publicly opposed the measure, saying it would negatively impact public safety. But proponents of the measure disagree because they don’t see many positives outcomes from the state’s high incarceration rates.

Some of the concerns of DAs are expressed in this local opinion piece authored by Jason Hicks, President of the Oklahoma District Attorneys Association, under the headline "Proposed state question could affect domestic violence sentencing."  Meanwhile, the  "Yes on 805" campaign has this website, but not a lot of details about 

I have no sense of whether proponents of this interesting initiative will be able to get it to voters, nor do I have any sense of whether Oklahoma voters might be supportive of this proposal.  But I think those troubled by mass incarceration, extreme sentencing terms and racially disparate sentencing practices are wise to focus criticism on the often out-sized impact of (even minor) criminal history at sentencing.  I do not know if this Oklahoma ballot initiative might be just the start of a whole new front for sentencing reform efforts, but I hope it can help generate a robust discussion of the many important issues that relate to the use of criminal history at sentencing.

February 13, 2020 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Wednesday, February 12, 2020

Legendary jurist (and sentencing Hall of Famer) Jack Weinstein finally retiring at age 98

More than 15 years ago, I did some blog musing here to add warmth to a November day by imagining a "Sentencing Judges Hall of Fame" — an institution in the mold of The National Baseball Hall of Fame — which would seek to foster an appreciation of the historical development of sentencing jurisprudence and its impact on our justice system.  (Compare the mission statement of The National Baseball Hall of Fame.)  Notably, in that original post, I suggested that Judge Jack Weinstein was surely a first-ballot member of a Sentencing Judges Hall of Fame given his many tape-measure (i.e., lengthy) sentencing opinions that were jurisprudential home runs.

I am reminded of these musing by this remarkable New York Daily News report headlined "After legendary 53-year career, Brooklyn Federal Judge Jack Weinstein hangs up his robe at age 98."  Here are excerpts that only partially cover his sentencing work through many decades:

For years, those around Judge Jack Weinstein dared not mention the R-word — retirement.  Finally, at age 98, the longest-serving federal judge in the country decided it’s time. Weinstein has shifted the 90 or so cases on his docket to his fellow Brooklyn Federal Court jurists. On Monday, he moved to inactive status, which means that except for some administrative tasks, his 53-year-career is over.

“I just about used up my reserves of energy and I felt that I could not really go on and have the assurance that I could give full attention and full energy to each one of these litigants.  That being so, it seemed to me highly desirable to turn it over to the other judges on the court,” Weinstein said in his 14th-floor chambers, which overlook Brooklyn Heights, the East River, Manhattan and New Jersey....

Weinstein, who was appointed in 1967, was the last federal judge in the country named by President Lyndon Johnson.  Still sharp, with a clear memory — but slower to speak than he used to be and relying on a walker — the judge spoke with the Daily News while his wife, stepdaughter and two clerks looked on.

The levelheaded judge denied he was sad about leaving the job he’s enjoyed for more than a half century. Asked if he’d miss being a judge, he paused. “Yes, I think so, of course. This is an excellent court. I love my colleagues. And the ability to work with them on a daily basis was one that I treasured.”

Weinstein made headlines in 2018 for saying he would not toss ex-convicts back in prison for smoking pot while on supervised release. He is also known for his lenient sentences — including one in the case of a man convicted of distributing child pornography. “We continue using the criminal law to unnecessarily crush the lives of our young,” he wrote in 2013 in a response to the 2nd Circuit U.S. Court of Appeals, which ruled his 30-month sentence for the child porn distributor was too lenient, based on the five-year mandatory minimum the charge carries.

Weinstein says harsh sentences are a poor idea, and that he’s always tried to give the lightest sentences he can so that people can be freed and try to build a better life. “I think our sentencing has been much too extreme, and I’ve done what I could to reduce the cruelty of it by sentencing at the lowest possible levels that I could,” Weinstein said. “Most sentences are too extreme. We keep people under supervised release much longer than they should be. They should be reintroduced to family and to jobs and creative work.”

He admitted being troubled by the case of ISIS sympathizer Sinmyah Amera Ceasar, who broke her promise to help the government after she was busted for helping the terror group’s recruiting efforts.  Prosecutors wanted Ceasar sentenced to 30 to 50 years in prison.  But Weinstein thought such a sentence would have been “excessively harsh," especially since in his view Ceasar was well on her way to rehabilitation. “We need to rule from a place of love, not hate,” Weinstein said.

Sentences in Brooklyn Federal Court are the lowest in the country, and Weinstein’s are the lowest in the court, the judge said....

Weinstein, a proud graduate of Brooklyn College, enrolled at Columbia Law School after the war. After he graduated in 1948, he clerked in 1949 for Stanley Fuld, a judge on the New York State Court of Appeals.  Soon after, Weinstein went to work for Thurgood Marshall, whom he considered a friend and mentor.  Marshall — whom President Johnson appointed to be the first black U.S. Supreme Court justice — at the time was the lead lawyer for the NAACP.

Weinstein contributed research and briefs to aid Marshall’s argument of Brown vs. Board of Education.  Marshall and his legal team won a ruling from the Supreme Court that said segregation in public schools is unconstitutional.  Weinstein said that as he worked on the Brown case, he knew it would result in a historic decision. “But unfortunately, it did not result in a vindication of African-American rights, particularly in New York City. The schools here are among the most segregated. ... It’s a great disappointment,” the judge said.

In retirement, Weinstein plans to spend more time with his wife and to help one of his three sons — who is retired himself — with a book on Jim Crow laws. He’s not worried or thinking about hitting 100 years old. “That’s just another day in my life. A very wonderful life it has been.”

February 12, 2020 in Who Sentences | Permalink | Comments (0)

"Please Tweet Responsibly: The Social and Professional Ethics of Public Defenders Using Client Information in Social Media Advocacy"

The title of this post is the title of this new short article just posted to SSRN authored by Nicole Smith Futrell. Here is its abstract:

Every day the criminal legal system hauls poor and marginalized individuals through a process wrought with trauma, indignity, and abuse.  Public defenders representing the criminally accused view their clients and the system from a unique vantage point: they bear witness to the human costs of a system that falls far short of its purported norms and ideals. For the public defender who works within this reality day in and day out, fighting for each individual client might feel limited in its wider impact.  Some public defenders have found that using online and social media platforms, such as Twitter, to provide insights and commentary on the human toll of the criminal legal system is one way to contribute to a deepened public awareness of the criminal legal system’s shortcomings.  Indeed, while statistics about mass criminalization and mass incarceration provide powerful data points, narratives about the very real ways that clients experience being arrested, charged, processed and adjudicated can influence public debate and create momentum for both an individual case and more comprehensive systemic reform.

These online and social media narratives about clients can be powerful because they help to convey to unfamiliar audiences how the law is actually being experienced by those who have been marginalized because of their economic status, ability, race, sexual orientation, gender identity, or immigration status.  While this can be a compelling and effective approach, public defenders need to consider what their ethical obligations are and also what a strong sense of social and professional responsibility requires.  The deep racial disparities in the criminal legal system and the particularly unique vulnerabilities of the indigent criminal client necessitate that public defenders refrain from using client narratives in ways that may inadvertently oversimplify and exploit a client’s life experience.  This article offers public defenders practical guidance on how to ethically and responsibly draw from their specialized knowledge and the experiences of their clients in order to expose systemic injustice.

February 12, 2020 in On blogging, Who Sentences | Permalink | Comments (0)

"Remorse and Judging"

The title of this post is the title of this new book chapter authored by Susan Bandes now available via SSRN.  Here is the abstract:

This chapter focuses on the judicial evaluation of remorse.  It is an article of faith that judges can and should evaluate remorse when determining sentence.  Although the dynamics of this evaluation are understudied, the existing literature helps illuminate the assumptions judges employ and the dangers and limitations of those assumptions.  Judges rely on evaluation of demeanor and body language and on allocution, and their interpretations are rife with implicit assumptions and unstated rules about what counts as remorse. 

Many of these assumptions (for example the link between remorse and decreased recidivism and the possibility of assessing remorse from demeanor) lack evidentiary support. These assumptions and implicit rules vary widely from judge to judge.  They often fail to account for the influence of race, ethnicity, gender and social class on the expression and evaluation of remorse.  Moreover, they put a premium on the willingness to plead guilty, and to do so at the earliest possible opportunity.  The chapter draws upon the few existing empirical studies on the topic and identifies areas that require further study.

February 12, 2020 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (1)

Tuesday, February 11, 2020

Would it be improper for a President to write a character letter for a defendant facing federal sentencing?

The question in the title of this post is obviously precipitated by the extraordinary developments surrounding federal prosecutors' multiple sentencing submissions in the Roger Stone case (details here and here).  Prez Trump apparently told reporters today that he did not tell the Justice Department to change its sentencing advocacy, but he did claim that he would have "the absolute right to do it."  I do not know enough about DOJ rules and executive authority to weigh in on this claim, but I do know that this discussion got me to thinking about whether and how it might be proper for a President to share his or her perspective on a federal defendant facing federal sentencing.

Federal defense attorneys know how common it is, especially in high-profile, white-collar cases, to argue for sentencing leniency with the help of character letters often written by the most prominent and compelling of individuals who know the defendant well.  (I know I have seen such letters authored by elected officials in past cases.)  In this case, according to this article in The Atlantic, Roger Stone "has been a presence in the president's life for more than 30 years."  Consequently, I cannot help but wonder if Stone's defense attorneys gave any thought to seeking a character letter from Prez Trump.

Whether such a letter was sought or not, I would love to hear from thoughtful readers about whether they think it would be improper for any President to write any character letter for any defendant facing federal sentencing.  Does simply being President (perhaps because of clemency powers) serve to make it improper to share knowledge of the character of a defendant?

Prior related posts:

February 11, 2020 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5)

DOJ now says "sentence of incarceration far less than 87 to 108 months [for Roger Stone] would be reasonable under the circumstances"

As noted in this prior post, yesterday federal prosecutors filed this 26-page sentencing memorandum advocating for a within-guideline sentence of 7.3 to 9 years in prison for Roger Stone.  Prez Trump in the middle on the night tweeted out his displeasure with that advocacy, and today we saw filed this new 5-page supplemental and amended memorandum from federal prosecutors.  This new document is remarkable in many respects, and here are just a few excerpts that I suspect federal defendants may be keen to quote in other cases (in part because this new filing almost reads like a defense submission):

The prior filing submitted by the United States on February 10, 2020 (Gov. Sent. Memo. ECF No. 279) does not accurately reflect the Department of Justice’s position on what would be a reasonable sentence in this matter.  While it remains the position of the United States that a sentence of incarceration is warranted here, the government respectfully submits that the range of 87 to 108 months presented as the applicable advisory Guidelines range would not be appropriate or serve the interests of justice in this case.

It is well established that the prosecutor “is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.” Berger v. United States, 295 U.S. 78, 88 (1935).  This axiom does not simply apply to the process of bringing charges or securing a conviction — it also “must necessarily extend” to the point where a prosecutor advocates for a particular sentence.  See United States v. Shanahan, 574 F.2d 1228, 1231 (5th Cir. 1978) (reviewing sentencing conduct of prosecutor). Applying that principle here, to the specific facts of this case, the government respectfully submits that a sentence of incarceration far less than 87 to 108 months’ imprisonment would be reasonable under the circumstances....

Here, as set forth in the government’s initial submission, the defendant’s total offense level is arguably 29 and his criminal history category is I, which would result in an advisory Guidelines range of 87 to 108 months.  Notably, however, the Sentencing Guidelines enhancements in this case — while perhaps technically applicable — more than double the defendant’s total offense level and, as a result, disproportionately escalate the defendant’s sentencing exposure to an offense level of 29, which typically applies in cases involving violent offenses, such as armed robbery, not obstruction cases. Cf. U.S.S.G. § 2B3.1(a)-(b)....  Accordingly, it would be reasonable for the Court to conclude that the Guidelines range as calculated is unduly high on the facts of this case.

After calculating the Guidelines, the Court next turns to the statutory sentencing factors.  Title 18 of the United States Code Section 3553(a) states that a sentencing court should “impose a sentence sufficient, but not greater than necessary” to achieve the statutory goals of sentencing.  In doing so, Section 3553(a) delineates several factors that the court must consider when imposing a sentence, “and the sentencing range . . . as set forth in the Guidelines” is but one of those factors....  Here, there are several facts and circumstances supporting the imposition of a sentence below 87 to 108 months’ imprisonment....

Finally, the Court also should consider the defendant’s advanced age, health, personal circumstances, and lack of criminal history in fashioning an appropriate sentence. As noted above, a sentence of 87 to 108 months more typically has been imposed for defendants who have higher criminal history categories or who obstructed justice as part of a violent criminal organization....

The defendant committed serious offenses and deserves a sentence of incarceration that is “sufficient, but not greater than necessary” to satisfy the factors set forth in Section 3553(a).  Based on the facts known to the government, a sentence of between 87 to 108 months’ imprisonment, however, could be considered excessive and unwarranted under the circumstances.

Interestingly, as reported via The Hill, a changed sentencing recommendation is not the end of the fallout here:

The four Department of Justice (DOJ) prosecutors who recommended Roger Stone be sentenced to seven to nine years in prison left the case Tuesday after top officials sought to reduce their sentencing request.

Prosecutors Michael Marando, Timothy J. Shea, Jonathan Kravis and Aaron Zelinsky all asked the judge in the case for permission to withdraw. Kravis left the DOJ entirely, announcing his resignation as an assistant U.S. attorney. The four were involved in providing the initial sentencing guidance for Stone. But in a rebuke to the career prosecutors, the DOJ on Tuesday told the judge in the case to apply "far less" to Stone's sentence....

The DOJ decision and the withdrawal of career prosecutors from the case stunned legal watchers and Washington and raised questions about potential political interference in the sentencing of a longtime Trump adviser. Reports of the DOJ reversal said top officials found the initial guidelines to be "excessive." Those reports also came after Trump blasted the guidelines on Twitter, saying that Stone was treated unfairly by prosecutors....

Speaking with reporters in the Oval Office, Trump said he didn't tell the Justice Department to amend its sentencing guidance but that he would have been within his rights to do so. “I'd be able to do it if I wanted. I have the absolute right to do it. I stay out of things,” Trump said.

"I didn't speak to them. I thought the recommendation was ridiculous. I thought the whole prosecution was ridiculous,” he continued. “I thought it was an insult to our country.”

Senate Minority Leader Charles Schumer (D-N.Y.) is calling on the DOJ's top watchdog to investigate the decision to suddenly recommend a lighter sentence for Stone, while the group Citizens for Responsibility and Ethics in Washington is sending the Justice Department a Freedom of Information Act request for records related to the case. "The DOJ Inspector General must open an investigation immediately. I will be sending a formal request to the IG shortly," Schumer tweeted.

Prior related post:

February 11, 2020 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (7)

In speech to sheriffs, Attorney General William Barr assails "rogue DAs"

Continuing a trend of attacking locally-elected prosecutors bringing a new approach to their roles, Attorney General William Barr closed this speech at the Major County Sheriffs of America Winter Conference with a lengthy attack on the policies of what he calls "rogue DAs."  Here is the wind up and pitch from AG Barr on this topic:

Let me turn my attention to two substantial challenges to the rule of law we face today: so-called “sanctuary” jurisdictions and, what I’ve been calling them, rogue DAs, who undermine — rather than advance — our ability to carry out effective law enforcement....

Another similar problem is the increasing number of district attorneys who have fashioned for themselves a new role of judge-legislator-prosecutor.  These self-styled “social justice” reformers are refusing to enforce entire categories of law, including law against resisting police officers.  In so doing, these DAs are putting everyone in danger.

Their policies are pushing a number of America’s cities back toward a more dangerous past. Under the district attorney in Philadelphia, the murder rate in that city is at its highest point in over a decade.  Other cities with these “progressive” DAs — like San Francisco, Seattle, St. Louis, Chicago, and Baltimore — have all suffered historic levels of homicide and other violent crime.  This is while crime nationwide, generally, is going down.

The policies of these DAs strike at the very root of our law enforcement system.  Our system is based on graduated response, where we impose increasingly severe punishments based on an individual’s criminal history.  This means we have to have accurate criminal histories if we are going to be able to protect the community.  Even if we are going to treat early, and petty offenses leniently, we still need them charged and recorded so we know who we are dealing with as time goes by.  Our whole system is undermined by the practice of ignoring whole categories of criminal offenses.

The policies of these DAs also sabotage the effectiveness of community policing and “precision” policing, which depend heavily on obtaining information from members of the community.  When DAs engage in catch-and-release and revolving-door policies, people in the neighborhood who might otherwise provide information are scared to come forward.  These innocent people are rightly worried that the offender will be right back out on the street in a position to do them harm.  In some jurisdictions we are already seeing effective policing — that has taken decades of painstaking work to build — being dramatically undermined. Just in New York the other day, there was the case involving the MS-13 member who was released.  A member of the community provided evidence, and was killed by an MS-13 member who was released under new legal reforms in New York state.

These DAs think they are helping people, but they end up hurting them.  These policies actually lead to greater criminality.  Not always, but often enough, early intervention can help — with young people, in particular.  By allowing young lawbreakers entirely off the hook the first time — or the second time or even the third time — these DAs are potentially placing them on a conveyor to further and heightened criminality, which puts them at greater peril — both on the street from other criminals and from law enforcement when these young offenders graduate from petty to serious offenses, as many will if there is no intervention early on.

We have seen these policies before. They reigned supreme at the state level from the 1960s to the early 1990s. During this time, violent crime rates tripled in our country. They peaked in 1991 and 1992. By that time, the country had had enough. Following the lead of the policies of the Reagan, H.W. Bush administrations, the states started to make their systems tougher on crime.

We understood that because crime, particularly violent crime, is committed by a small segment of our population, repeat offenders need to be taken off the streets. Federal, state, and local law enforcement formed a strong partnership to get these violent offenders off our streets and keep them off.

We had tremendous success. Since 1992, violent crime was cut in half nationwide. It went up a bit in the last two years of the Obama administration, but since the beginning of the Trump administration, we have succeeded in pushing it back down. We cannot allow all our hard work over the last 30 years to be undone by the wrong-headed policies of these so-called “reform” DAs.

We have to strengthen our partnership and stand together as never before. We have to be a strong voice for sensible law enforcement policies that protect our communities from violent predators. Our freedom depends on our ability to preserve the rule of law. I thank you, the department thanks you, and the American people thank you for dedicating your lives to defending it.

As I have noted before (here and here), complaints from DOJ about local prosecutorial "practice of ignoring whole categories of criminal offenses" are pretty rich given that DOJ has itself been engaged in the "practice of ignoring" all sorts of large-scale (though state-compliant) federal marijuana offenses for many years.

Prior related posts:

February 11, 2020 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (5)

"Fees, fines and ability to pay"

The title of this post is the title of this new Hill commentary authored by Lauren-Brooke Eisen and Matthew Menendez of the Brennan Center for Justice. Here is how the piece starts and ends:

In far too many criminal courts across the country, judges impose fees and fines on defendants without consideration for their ability to pay.  The result: people struggling financially are saddled with debt that makes it nearly impossible for them to support themselves and their families.  The devastating consequences of these practices are gaining national attention.  In fact, five of the current Democratic presidential candidates have joined the growing outcry against this approach and are trying to address the problem through their criminal justice policy platforms.

Despite promising momentum for change, some government officials hold on, partly under the belief that they need fines and fees to generate revenue.  But a hard look at the numbers shows that collecting fees and fines is highly inefficient and costs much more than many policymakers ever realized.

Compared to fines issued with sentences, court fees tend to slip past the public’s attention.  Depending on where you live, if you are arrested for low-level offenses such as loitering or possessing a small amount of drugs, you could get charged dozens of fees: a fee for filing your paperwork, a fee for the court to figure out if you qualify for a public defender, a fee for your public defender’s services, a universal fee wholly unrelated to your case (like the one that funds a DNA program), a court technology fee, and more.

We studied fees and fines, observing more than 1,000 hearings in three states and found that, in most places, courts rarely consider a defendant’s finances and what he or she might be able to pay before requiring them to pay mandatory court fees and fines [report available here and here].  For people who can’t afford the amount they owe, they become debtors whose bill collectors are judges and the police.

We assessed the costs for state and local governments to enforce and collect fees and fines by analyzing data from 10 counties in Florida, New Mexico, and Texas, as well as state-level data for the three states.  The waste that we discovered tell us that every city, county, and state government should look hard at their fees and fines policies.  The net gain might be far less than they have imagined, the losses far more damaging.

Because many low-income people can’t pay their debt, billions of dollars in fines and fees go unpaid every year while these debts hang over people, spiraling out of control as penalties pile up.  In fact, our report found that from 2012 to 2018, Florida, New Mexico, and Texas amassed a total of almost $1.9 billion in uncollected debt.  This debt is made up of millions of tiny debts owed by people who may never be financially equipped to pay them off....

State and local governments can stop placing unjust burdens on poor people and their families.  They can start to do so by enacting legislation to eliminate the fees that the court imposes on criminal defendants.  In many places, the courts rely primarily on fees for funding, as opposed to taxes, despite the fact that they operate in service to the public as a whole. States and localities should make general tax revenue the primary source of funding for the courts, rather than fees.

States should also reform how they impose fines.  To guard against assessing fines that defendants can’t afford, states should require judges to evaluate a person’s ability to pay and then apply a sliding scale to determine the amount.  After digging into the numbers, we can add fiscal irresponsibility and growing burdens to those most impacted by these debts to the reasons to dump these practices.  Every jurisdiction using fines and fees must stop and do the math — all of it.

February 11, 2020 in Data on sentencing, Fines, Restitution and Other Economic Sanctions, Race, Class, and Gender, Who Sentences | Permalink | Comments (2)

For Roger Stone, federal prosecutors advocate for within-guideline sentence of 7.3 to 9 years in prison ... which Prez Trump calls a "miscarriage of justice!"

As reported in this Politico piece, "Federal prosecutors are urging that longtime Donald Trump adviser and Republican political provocateur Roger Stone be sent to prison for about seven to nine years for his conviction on charges of lying and witness tampering during investigations of ties between Russia and the Trump campaign." Here is more about the sentencing filings in this high-profile case that emerged late yesterday:

The stern recommendation is starkly at odds with a suggestion from Stone's defense team that he should be sentenced to probation — and no jail time — in the case.

Following a weeklong trial last November, a Washington jury found Stone guilty on all seven felony counts he faced: five of making false statements to Congress, one of obstruction of Congress, and one of witness tampering with both the House Intelligence Committee inquiry and special counsel Robert Mueller's probe.

In a sentencing filing Monday, prosecutors from the U.S. Attorney's Office in Washington argued that Stone's conduct was exceptionally sinister because of the importance of those investigations and the danger of overseas influence on U.S. elections. "Foreign election interference is the 'most deadly adversar[y] of republican government,'” prosecutors from the U.S. Attorney's Office in Washington wrote, quoting Alexander Hamilton's Federalist Paper No. 68....  The argument was strikingly similar — in some cases borrowing from the exact passages from the same Constitution-era text — as that lodged by the House's prosecutors during Trump's impeachment trial. "Alexander Hamilton cautioned that the 'most deadly adversaries of republican government may come 'chiefly from the desire in foreign powers to gain an improper ascendant in our councils,'" the House members argued in their trial brief....

While prosecutors tied the gravity of Stone's crimes to their impact on the electoral system, the bulk of the prison time authorities are calling for is a product of the prosecution's decision to treat hostile and vulgar messages Stone sent to longtime associate Randy Credico as genuine threats of violence, or at least as having the potential to stir up violence against Credico or others.  Prosecutors pointed, in particular, to a message Stone sent to Credico after he indicated plans to cooperate with the House committee. "Prepare to die, cocksucker," Stone wrote.  In another instance, Stone told Credico, who has a therapy dog, that he would "take that dog away from you."

Stone said during the trial his comments were in jest and part of the brash banter often exchanged between the two men, whose views are usually at opposite ends of the political spectrum. Prosecutors insisted that the barbed remarks mean Stone deserves between four and five years longer under federal sentencing guidelines than in cases involving witness tampering efforts that involve no physical threats.... Prosecutors acknowledged that Credico — a liberal New York city talk show host, comedian and activist — recently wrote to the court saying he did not think Stone was threatening him physically. Credico's letter urged that Stone get probation.  However, prosecutors also noted that during the trial, Credico said he was concerned about Stone's statements because they could encourage others to get violent.

Defense lawyers, who weighed in with U.S. District Court Judge Amy Berman Jackson late Monday night, vigorously disputed the notion that Stone's statements to Credico were actual threats to do anything.  They noted that at the trial Credico called Stone's comments "hyperbole" and said Stone "loves all dogs," so he could not have actually intended to harm Credico's service dog, a tiny Coton de Tulear who's almost constantly at his side. "Stone’s indecorous conversations with Randy Credico were many things, but here, in the circumstances of this nearly 20-year relationship between eccentric men, where crude language was the norm, 'prepare to die cocksucker' and conversations of similar ilk, were not threats of physical harm, 'serious acts' used as a means of intimidation, or 'the more serious forms of obstruction' contemplated by the Guidelines," Stone's lawyers wrote....

Stone, 67, faces a maximum of 50 years in prison at the sentencing, which Jackson has set for Feb. 20. Prosecutors say federal sentencing guidelines urge between 87 to 108 months in prison for Stone.  The defense disputes several aspects of that calculation and argues that the guidelines call for just 15 to 21 months.  Judges have the right to sentence above or below the guidelines, but are required to calculate the recommended sentence and take it into account.

Stone's defense also submitted a collection of letters from his wife and acquaintances in the political sphere and elsewhere.  "I can't tell you that Roger is a saint — he pushes everything to the limit even with you," Stone's wife Nydia wrote, alluding to Stone's run-ins with the judge over her gag orders and perhaps to an Instagram post he sent during the trial that included a picture of Jackson next to what appeared to be crosshairs. She also proclaimed her husband "loyal, kind, loving, considerate, generous and good-natured," as well deeply committed to Trump's re-election.

Among others asking for leniency for Stone were Democratic political consultant Hank Sheinkopf and former New York Republican gubernatorial candidate Carl Paladino.  Stone's supporters saluted him as an early backer of gay rights and marriage equality, an opponent of animal testing and a strong advocate for the easing of New York state's tough Rockefeller drug laws.

I am not surprised to see the upcoming Roger Stone sentencing to engender an interesting debate over both guideline calculations and 3553(a) factors (not to mention the real meaning of colorful phrases).  Here are the full filings from the parties:

Unsurprisingly (and I think importantly), President Donald Trump is not at all keen about the sentencing advocacy of his Department of Justice in this case. Among other tweets on the topic, Prez Trump retweeted a lament about federal prosecutors seeking "A *9 year* prison recommendation for non-violent crimes committed by a 67-year-old man." In addition, Prez Trump had this original tweet on the topic in the wee hours (just before 2am EST):

Regular readers know that plenty of extreme (and within-guideline) sentencing recommendations by federal prosecutors have kept me up at night, although I usually turn to blogging rather than tweeting to express my concerns about the banal severity and cruelty of the federal criminal justice system.  (For the record, all US Presidents — current, former and wanna-be — have an open invitation to guest-blog here about any sentencing matters!) 

Based on the submissions, I am inclined to (tentatively) predict that Judge Amy Berman Jackson will come to a lower guideline calculation than urged by prosecutors and yet still impose a below-guideline sentence.  But I still expect the sentencing judge to impose some prison time on Stone, at which point it will be interesting to see if Prez Trump will make another controversial use of his clemency power.  If Stone gets less than a year, I suspect Trump will leave him to serve his sentence at least until the upcoming election, as he has with Paul Manafort. 

As always, I welcome comments and other predictions from readers.

UPDATE: This Fox News article, headlined "DOJ expected to scale back Roger Stone's 'extreme' sentencing recommendation: official," suggests that federal prosecutors may soon be changing their sentencing tune in this high-profile case.

February 11, 2020 in Clemency and Pardons, Criminal justice in the Trump Administration, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences | Permalink | Comments (0)

Monday, February 10, 2020

Notable numbers in "Criminal Justice Reform" fact sheet highlighting part of Prez Trump's proposed budget

President Donald Trump delivered a proposed budget to Congress today, which this Politico article calls "another fiscally conservative dream document lawmakers will largely disregard."  I do not know enough about budget policy, politics or practice to say much about the whole document, but I did notice that the White House has also now released this one-page budget fact sheet titled "Criminal Justice Reform."  Here are excerpts:

On December 21, 2018, President Trump signed into law the First Step Act of 2018 (FSA, or “the Act”), the most significant, bipartisan criminal justice reform legislation in more than a decade....

For 2021, the Budget provides $409 million to Department of Justice’s Bureau of Prisons (BOP) to implement the FSA, an increase of $319 million over 2020 enacted budget. Major new investments in 2021 include:

  • Residential Reentry Center (RRC) Expansion ($244 million):  The FSA requires BOP to have pre-release custody available for all eligible inmates.  The FSA also greatly expands inmate eligibility for pre-release custody by allowing inmates to earn 10 days of pre-release custody time credits for every 30 days of successful participation in an evidence-based, recidivism-reduction program or productive activity.  Prerelease custody usually occurs in an RRC, commonly called a “halfway house.”  BOP currently has about 14,000 RRC beds under contract, and funding provided in 2020 will add 300 more.  The 2021 Budget supports an additional 8,700 beds, bringing the total to 23,000 RRC beds -- a level that is expected to meet the pre-release custody demand under the FSA.
  • Medication-Assisted Treatment (MAT) – Complete Nationwide Expansion ($37 million):  MAT combines behavioral therapy and medication to treat inmates with opioid use disorder. BOP estimates that 10 percent of its population may be eligible for MAT treatment.  BOP is investing sufficient funding in 2020 to expand MAT treatment from a small pilot program to half of all eligible BOP facilities.  The 2021 Budget continues this funding and provides an additional $37 million to complete MAT expansion to all eligible BOP facilities.
  • Recidivism-Reduction Program Expansion ($23 million):  As required by the FSA, BOP will increase access to evidence-based, recidivism-reduction programs.  BOP’s focus will be to add capacity to existing mental health, life skills, special needs, educational, vocational programs, and add new programs as they are identified and evaluated.
  • FSA Staff Support ($15 million): These funds provide for the pay and benefits of additional FSA staff hired to support 2020 investments in MAT and Recidivism-Reduction Programs.

The Budget also recurs $90 million provided in 2020 to support FSA implementation, including:

  • $38 million to expand MAT to the first half of BOP’s institutions in 2020;
  • $19 million to expand evidence-based, recidivism-reduction programs;
  • $14 million for the Innovations in Corrections program to incentivize the development of innovative, evidence-based pilot projects in reentry and recidivism-reduction approaches;
  • $9 million for the initial expansion of 300 RRC beds added in 2020;
  • $6 million for inmate-focused IT, such as upgrading the BOP’s computer-based education network; and,
  • $4 million to evaluate BOP’s recidivism-reduction programs and tools for assessing recidivism risk.

Though these budget proposals still might fall short of what is needed for full, effective implementation of the FIRST STEP Act (e.g., I think Recidivism-Reduction Programs needs a lot more money), this strikes me as a serious effort to put serious money behind the Act (especially with the RRC expansion). Though I will always be hoping for the Trump Administration to do more and more in the arena of criminal justice reform, I am pleased today to see this Trumpian effort to provide needed additional resources in this arena.

Relatedly, and covering a lot more ground, Deputy Attorney General Jeffrey Rosen today delivered these remarks regarding the Department of Justice's overall portion of the FY 2021 Budget Proposal.

February 10, 2020 in Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)

"The Peter Parker Problem"

Standard_incredibleThe title of this post is the title of this new article authored by W. David Ball now available via SSRN.  Here is the piece's abstract:

Sandy Mayson, in her article "Dangerous Defendants," points out the ways in which pretrial detention violates the parity principle-treating those of like risk alike.  There is no justification for the preventative detention of arrestees that would not also apply to those of a similar risk level at large.  In other words, merely having an arrestee in custody does not logically change our analysis of the risk they present or what we should do with them.

But what if these views are psychological, not actuarial?  What if different decisions about these populations (and the differences in how we view them) are not based in different assessments of risk, but about the psychological heuristics we use to analyze them?  In this paper, I explore the possibility that counterfactuals — the "if only I had" scenarios that create an alternative universe where tragedy is avoided — drive decisionmaking without our being aware of it.  The human tendency to desire certainty and simplicity may help explain why our default seems to be to keep someone locked up, "just in case" — and why this desire is resistant to information and argument.

This Article adds an important dimension to the ongoing debates about whether judicial discretion or actuarial tools should govern pretrial release.  Judicial discretion may be biased towards incapacitation by operating on the "gut level" of psychology — even if these decisions result in suboptimality from a cost-benefit perspective.  It adds an additional perspective to the existing literature on the political economy of headline-grabbing crimes (the "Willie Horton" effect). 

The insights from pretrial release also apply more generally to a host of similar problems, including parole release, executive clemency, diversion programs, and removal of children from potentially abusive parents, and suggest that policymakers and reformers be cognizant of the way in which current criminal justice thinking is short-sighted, overly reactive, and biased towards incapacitation.  By applying theories of the counterfactual proposed by Roese and other behavioral psychologists to regret-minimization problems, the Article provides an explanation for why, even when regulations change, judicial decisions to release may remain low.  It suggests that experimental research specifically targeting judicial counterfactual thinking should take place.

February 10, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, February 09, 2020

"A lawyer argued that plea deals are unconstitutional. Now the DA won’t bargain with her."

The title of this post is the headline of this interesting article from the Washington Post reporting on a notable squabble over plea bargaining in the Lone Star State.  Here is a excerpt from an article worth reading in full:

Inside a Tom Green County, Tex., courtroom in October, a woman facing a misdemeanor forgery charge was about to lose her appointed lawyer.  That afternoon, the woman’s soon-to-be former defense attorney, Patricia Stone, was joined by a judge to explain to the defendant why Stone could no longer represent her: The district attorney in Tom Green County was trying to enforce a policy, pertaining only to Stone, that required her to sign a waiver against her beliefs for prosecutors to discuss plea deals for her clients....

The defendant was among more than 10 clients Stone was forced to give up as a result of a targeted policy devised by Tom Green County prosecutors, according to a federal lawsuit filed in October.  The complaint names district attorneys Allison Palmer and John Best and accuses their office of silencing Stone’s First Amendment views and retaliating against her for making the argument in a separate appeals case that plea bargains are unconstitutional.  The lawsuit seeks damages, a jury trial and an injunction to prevent the county from continuing to enforce the waiver requirement against Stone.

Stone told The Washington Post in an email that the prosecutors are exercising a kind of power they were never meant to have.  “In this case, the DA is saying, ‘we are going to dictate the legal arguments you can make, and if you don’t agree we’re going to make sure that your other clients don’t have the same right to justice as everyone else,’ ” Stone wrote. “They are trying to make me sell out one of my clients to do a good job for the others, and I won’t do that.”...

According to Stone’s lawsuit, Tom Green County prosecutors soon refused to negotiate pleas unless Stone signed a so-called “additional admonishment” that included the phrase: “In no way do I believe this defendant’s plea of guilty in exchange for the State’s punishment recommendation in this case to have violated my client’s constitutional rights, including his due-process rights.”  Stone refused and said the ultimatum forced her to withdraw from her cases in the county.

February 9, 2020 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)