Monday, August 29, 2016

As Donald Trump falsely claims inner-city crime "is reaching record levels," will those truly concerned about public safety address new spike in roadway deaths?

GOP Prez candidate Donald Trump took to twitter this morning to propagate false information about modern crime rates by saying in this tweet that "Inner-city crime is reaching record levels."   This Wall Street Journal article, headlined "Trump Says Crime Near Records, but Data Show Murders Well Below ’90s Highs," details why this statement is patently false:

As part of Donald Trump’s declared outreach to black voters, the Republican presidential nominee has painted a dire picture of American “inner cities” rife with crime, and stated he can make them safe. While crime has indeed ticked up recently, it remains near historic lows, especially as compared to, say, the 1980s and 1990s when the streets of Mr. Trump’s hometown of New York City were far more dangerous than today.

Homicides for the first six months of the year hit 2,801 in 61 major cities surveyed by the Major Cities Chiefs Association, up 15% from the year previous. Thirty-six of the 61 departments reported increases in homicides so far this year with Chicago showing the largest jump. As of Sunday, there have been 455 murders in Chicago, up 47% from the same period last year, according to the police. There were 472 murders in all of 2015, about half the all-time high set 25 years ago....

It is hard to remember how violent the country was back then. One example is New York City. The nation’s largest city annually had 2,000 homicides during the violence-prone early 1990s.  This year, the city will likely have about one-sixth of that total.  The nation’s homicide record setting year was 1991, with 24,703 homicides, according to the Federal Bureau of Investigation. The nation’s larger cities had numbers considerably higher than those recorded recently.

I highlight this data not only to provide, yet again, some needed context for concerns expressed about recent the uptick in homicide in a number of notable cities, but also to highlight that even the most violent year in modern American history --- 1991, with 24,703 homicides --- still experienced 10,000+ fewer death than accidents just last year on American roads. The latest data on US traffic deaths comes from this official press release which came out just today, titled "Traffic Fatalities Up Sharply in 2015," from the National Highway Traffic Safety Administration.  Here are some of these details:

The nation lost 35,092 people in traffic crashes in 2015, ending a 5-decade trend of declining fatalities with a 7.2% increase in deaths from 2014. The final data released today by the U.S. Department of Transportation’s National Highway Traffic Safety Administration showed traffic deaths rising across nearly every segment of the population. The last single-year increase of this magnitude was in 1966, when fatalities rose 8.1% from the previous year.

"Despite decades of safety improvements, far too many people are killed on our nation’s roads every year," said U.S. Transportation Secretary Anthony Foxx. "Solving this problem will take teamwork, so we're issuing a call to action and asking researchers, safety experts, data scientists, and the public to analyze the fatality data and help find ways to prevent these tragedies.”

Ten years ago, the number of traffic deaths was nearly 25% higher, with 42,708 fatalities reported nationwide in 2005. Since then, safety programs have helped lower the number of deaths by increasing seat belt use and reducing impaired driving. Vehicle improvements, including air bags and electronic stability control, have also contributed to reducing traffic fatalities.  After a decade-long downward trend, traffic deaths in 2015 increased by nearly one-third compared to 2014....

Pedestrian and pedalcyclist fatalities increased to a level not seen in 20 years. Motorcyclist deaths increased over 8%. NHTSA also noted human factors continued to contribute to the majority of crashes. Almost half of passenger vehicle occupants killed were not wearing seat belts. Research shows almost one in three fatalities involved drunk drivers or speeding. One in 10 fatalities involved distraction. "The data tell us that people die when they drive drunk, distracted, or drowsy, or if they are speeding or unbuckled," said NHTSA Administrator, Dr. Mark Rosekind. "While there have been enormous improvements in many of these areas, we need to find new solutions to end traffic fatalities."

August 29, 2016 in Campaign 2016 and sentencing issues, Data on sentencing, National and State Crime Data, Offense Characteristics | Permalink | Comments (0)

"Quantifying Criminal Procedure: How to Unlock the Potential of Big Data in Our Criminal Justice System"

The title of this post is the title of this notable new paper by my OSU colleague Ric Simmons available via SSRN. Though this paper is mostly focused on the use of big data in police practices, all serious students of sentencing know that big data can and does also play a role in risk assessments and other post-conviction decision-making. Here is the abstract:

Big data’s predictive algorithms have the potential to revolutionize the criminal justice system. They can make far more accurate determinations of reasonable suspicion and probable cause, thus increasing both the efficiency and the fairness of the system, since fewer innocent people will be stopped and searched.

However, three significant obstacles remain before the criminal justice system can formally use predictive algorithms to help make these determinations. First, we need to ensure that neither the algorithms nor the data that they use are basing their decisions on improper factors, such as the race of the suspect. Second, under Fourth Amendment law, individualized suspicion is an essential element of reasonable suspicion or probable cause.  This means that either the predictive algorithms must be designed to take individualized suspicion into account, or the predictive algorithms can only be used as one factor in determining whether the legal standard has been met, forcing police and judges to combine the algorithm’s results with individualized factors. And finally, the legal standards themselves must be quantified so that police and judges can use the numerical predictions of big data in their reasonable suspicion and probable cause determinations.

These obstacles are not insurmountable. And if the necessary changes are made, the criminal justice system will become far more transparent, since the factors the algorithms take into consideration will necessarily be open for judges and the general public alike. Furthermore, setting a quantified likelihood for reasonable suspicion and probable cause will allow us to engage in a healthy debate about what those numbers ought to be, and it will also ensure conformity across different jurisdictions.

August 29, 2016 in Data on sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Fourth Circuit ruling highlights circuit split (and general insanity) regarding loss calculations and guideline sentencing in securities fraud case

The Fourth Circuit on Friday handed down a lengthy opinion in US v. Rand, No. 15-4322 (4th Cir. Aug. 26, 2016) (available here), affirming the convictions and sentence of a white-collar defendant "following his involvement in earnings mismanagement and improper accounting transactions while acting as chief accounting officer at Beazer Homes USA, Inc." The sentencing discussion in Rand occupies only six pages of a 35+ page opinion, but those pages include elements of what I see as so very insane about loss calculations and guideline sentencing in security fraud cases.  These background paragraphs from the Rand opinion provide the foundation for my insanity complaint:

U.S. Sentencing Guideline § 2B1.1 sets the offense level for certain fraud offenses and requires an increase based on the loss caused by the offense conduct, in accordance with a table in § 2B1.1(b)(1). An application note instructs that “in a case involving the fraudulent inflation or deflation in the value of publicly traded security,” loss should be calculated based on how the price of a security changed, “after the fraud was disclosed to the market.” U.S.S.G. § 2B1.1 Application Note 3(F)(ix).

At sentencing, the parties debated which of Beazer’s three public disclosures qualified as the date on which the “fraud was disclosed to the market”.... The court determined that the fraud was disclosed in June and August and that the loss to investors following those dates was $135 million. Accordingly, the district court calculated an offense level of 51 for a guidelines range of life imprisonment, capped by the statutory maximum.  The parties agreed that if the October date were used, the resulting loss would be $0. Had the district court used the loss amount following the October disclosure, Rand’s offense level would have been 19, with a range of 30 to 37 months.  The court ultimately varied downward from the guidelines range of life imprisonment and imposed a ten-year sentence.

In other words, it seems here that the facts surrounding the defendant's criminal behavior is not in serious dispute for sentencing purposes, but there is a big legal dispute over how the federal sentencing guidelines take stock of the "loss" cause by this behavior. And, remarkably, for calculating the advisory guidelines sentencing range, one legal take on this issue calls for the defendant to get an LWOP+ sentence, but the other legal take calls for the defendant to get no more than about 3 years' imprisonment. I do not think it is insane for me to assert that it is insane for so radically different guideline prison recommendations to hinge on a technical legal dispute over loss calculations.

Adding to the insanity, at least in my view, is the Fourth Circuit panel's subsequent explanation for why it is disinclined to follow the Second and Fifth Circuits in having the US Supreme Court's "Dura [civil case] loss-causation principles apply to criminal securities fraud cases."  In short form, the Fourth Circuit panel agrees with "the Third, Sixth, and Ninth Circuits [which] have declined to apply Dura in the context of criminal sentencing" largely because concerns about mis-attributing "loss" are distinct in the civil and criminal contexts.  I fully agree that concerns about mis-attributing loss are distinct in the civil and criminal contexts, but it seems backward to make it much easier to attribute loss (as does the Fourth Circuit and other circuits refusing to adopt Dura loss-causation principles) in criminal cases where life and liberty (and not just property) are at stake.

In any event, and perhaps quite wisely, in the Rand case as noted in the case excerpt, the sentencing judge ultimately did not follow the guidelines range of life imprisonment when sentencing the defendant.  The defendant he was sentenced "only" to 120 months' imprisonment, which obviously constitutes a huge downward variance from the guidelines' LWOP recommendation (though also, of course, constitutes a huge upward variance if the Rand’s offense level really should have been 19 with a range of 30 to 37 months' imprisonment).  In this way, I suppose, the sentencing judge in Rand did what he could to stop the guidelines insanity.

August 29, 2016 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (0)

Does a weekend tweet from House Speaker Paul Ryan suggest that federal statutory sentencing reform still has a chance in the months ahead?

The question in the title of this post is prompted by this weekend tweet from the account of House Speaker Paul Ryan, which includes a clip of a pro-sentencing reform speech that Speaker Ryan gave earlier this year and has this notable new sentence: "There are over 2 million people in our prisons, and a lot of them are just people who made a mistake."  Ever eager to hope that federal statutory sentencing reform is not completely dead for the current year, I want to consider this tweet a positive development to that end.

That said, I learned of this tweet from this Breitbart posting, and a good bit of the posting highlights why I probably should not really get too excited or hopeful in the wake of this tweet:

In July, Ryan said he believed that Congress “overcompensated” in the 1990s by imposing tough jail sentences to combating a decades-long crime wave and a drug epidemic that destroyed communities and lives across the country. He’s now backing legislation that would slash sentences for convicted drug traffickers.

“In the 1990s, to your first point, I think government, both Republicans and Democrats, overcompensated on our criminal code. And we went too far and there are disparities — crack cocaine vs. powder cocaine — there are clear disparities and more importantly, I think that we’ve learned there are better ways of dealing with some of these problems than locking up somebody for 20 or 30 years,” Ryan told NRP host Steve Inskeep. “You end up ruining their lives, ruining their families, hurting communities, and then when they try to re-enter into society, they’re destitute.”

“So I really think there are better methods of dealing with these problems and I think that is part of criminal justice reform. I think that’s something I put out in the poverty plan that I first authored three years ago. So we intend on bringing these bills up in September,” he added.

Conservative critics have labeled the so-called reform efforts as “jailbreak” bills. For example, the Sentencing Reform and Corrections Act of 2015 (SRCA) would reduce penalties for drug traffickers profiting from poisoning communities. Neither would these drug-related penalty reduction bills significantly reduce some racial disparities, law enforcement officials say. “Blacks make up 37.5 percent of the prison population at the state and federal levels. If we released those convicted on drug charges alone the percentage of Black males in prison would drop to 37 percent — a mere half of one percent,” Milwaukee County Sheriff David Clarke testified before the House Judiciary committee.

Furthermore, the rollbacks will harm the communities they’re allegedly intended to help, say critics. “People who are convicted of a crime and imprisoned are a very small minority of the U.S. population … they comprise approximately 6.6 percent of the population,” Peter Kirsanow and a member of U.S. Commission on Civil Rights wrote in a letter to Grassley. “These people have managed to be less law-abiding than the remaining 93.4 percent of the U.S. population – quite a feat,” he wrote. “It is perhaps less of a feat when one considers that many offenders have serious additional problems that likely incline them toward criminality.”...

“This bill doesn’t touch simple possession, because there’s virtually no simple possession cases in federal court,” said prominent critic Alabama Sen. Jeff Sessions. “The Senate bill would drastically reduce mandatory minimum sentences for all drug traffickers, even those who are armed and traffic in dangerous drugs like heroin, and provide for the early release of dangerous drug felons currently incarcerated in federal prison.”

Meanwhile, drug overdoses, mostly heroin and other opioids, killed over 47,000 Americans in 2014 alone and nearly half a million in the past decade. Nearly all heroin sold in the U.S. is imported illegally from Mexico. “While Colombia has historically been the biggest source of heroin sold in the United States, Mexican output has since surpassed it, DEA officials say. Together, the two countries account for more than 90 percent of the U.S. heroin supply, and nearly all of it is smuggled into this country by Mexican traffickers,” the Washington Post reports.

Yet Ryan continues to push the bipartisan elites’ sentencing reduction agenda even as Obama continues his “stigmatize-and-federalize” campaign against local and state law enforcement — and as the Obama administration is set to free 70,000 federal prisoners.  But Republicans’ efforts to partner with Democrats on leniency for criminals has stalled amid public concern.  Fifty-three percent of Americans, and 68 percent of nonwhites, are “worried a great deal” about rising violent crime, according to an April Gallup poll.

The Senate sentencing-rollback bill has been stopped by opposition from multiple Senators, including Sessions and Sen. Tom Cotton.  Also, President Barack Obama has rejected a proposed deal from Sen. Orrin Hatch and other Republicans leaders who have offered to back the rollback bill if Democrats support a “mens rae” rollback of white-collar business prosecutions.

August 29, 2016 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Sunday, August 28, 2016

"Federal Review of State Criminal Convictions: A Structural Approach to Adequacy Doctrine"

The title of this post is the title of this notable new paper authored by Eve Brensike Primus now available via SSRN.  Here is the abstract:

Modern state postconviction review systems feature procedural labyrinths so complicated and confusing that indigent defendants have no realistic prospect of complying with the rules.  When defendants predictably fail to navigate these mazes, state and federal courts deem their claims procedurally defaulted and refuse to consider those claims on their merits.  As a result, systemic violations of criminal procedure rights — like the right to effective counsel — persist without judicial correction.

But the law contains a tool which, if properly adapted, could bring these systemic problems to the attention of federal courts: procedural adequacy.   Procedural adequacy doctrine gives federal courts the power to ignore procedural defaults and declare state procedural rules inadequate when those rules unduly burden defendants’ abilities to assert violations their federal rights.  And unlike the more commonly invoked cause-and-prejudice doctrine, which excuses default on the theory that a defendant’s unusual circumstances justify an exception to the rules, procedural adequacy doctrine allows courts to question the legitimacy of the state procedural regimes themselves.  As a result, procedural adequacy doctrine can catalyze reform in a way that cause-and-prejudice cannot.

For procedural adequacy litigation to catalyze reform, however, it must be adapted to modern circumstances in one crucial respect.   Historically, procedural adequacy doctrine focused on cases involving the deliberate manipulation of individual rules.  Today, what is needed is a structural approach to adequacy, one that would consider how the interaction of multiple procedural rules unfairly burdens federal rights.  Such a structural approach to adequacy is consistent with the doctrine’s original purposes and is the most sensible way to apply procedural adequacy under current conditions.  Litigants should accordingly deploy a structural approach to procedural adequacy doctrine and use it to stop states from burying systemic constitutional violations in complicated procedural labyrinths.

August 28, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Immediately after sentencing for attempted murder, Ohio man gives himself the death penalty by jumping off third floor

As reported in this local Ohio article, headlined "After sentencing, man jumps from courthouse third floor, dies," a sad and sudden development concluded a state sentencing proceeding on Friday. Here are the details:

A tragic turn of events occurred after a man sentenced on an attempted murder charge took his own life at the Jefferson County Courthouse.

What started as a sentencing hearing for 42-year-old Jason Binkiewiz Friday morning ended in tragedy. Jefferson County Common Pleas Judge Michelle Miller handed down a 13-year prison sentence for the charges of attempted murder and felony assault. The charge stems from a man being shot in the face outside a Dillonvale home in November 2015.

The proceedings were littered with details on a troubled past filled with a long criminal history. In some of her final remarks to the court the judge noted: "His behavior has continued over a period of 16 years, has continued to escalate and spiral out of control, resulting in somebody getting shot in the face."

But from the courtroom, things only spiraled further. As a deputy escorted Binkiewicz out of courtroom, he made his escape. "He made a run for the banister on the third floor of the courthouse and threw himself over the banister and has been pronounced dead," Jefferson County Sheriff Fred Abdalla said.

Screams filled the inside of the courthouse, and outside emergency responders rushed to the scene. Binkiewicz jumped approximately 100 feet to his death, from the third floor to the first floor.

"As soon as Binkiewicz started running, Deputy Price he was on him quick enough when he reached out, he had his shirt. It wasn't good enough, and if he held on to the shirt, most likely Deputy Price would have gone over with him," said Sheriff Abdalla. Officials are still in shock and prosecutors who have been working the case say the outcome could not have been predicted.... Because a sheriff's deputy was involved, the Steubenville police department will be handling the investigation along with the Attorney General's office.

August 28, 2016 in Offender Characteristics, Who Sentences? | Permalink | Comments (1)

Saturday, August 27, 2016

"Fourteen Years Later: The Capital Punishment System in California"

The title of this post is the title of this new and timely article authored by Robert Sanger and avaiable for download via Bepress.  Here is the abstract:

Fourteen years ago, the Illinois Commission on Capital Punishment issued a Report recommending 85 reforms in the criminal justice system in that state to help minimize the possibility that an innocent person would be executed.  The following year, this author conducted an empirical study, later published in the Santa Clara Law Review, to determine if California’s system was in need of the same reforms.  The study concluded that over ninety-two percent of the same reforms were needed in California.  In addition, the study showed that the California system had additional weaknesses beyond those of Illinois that also could lead to the execution of the innocent.

This article is an effort, fourteen years later, to determine what has transpired in California during the last fourteen years.  It will survey of the major scholarly and judicial work that has been published in the last fourteen years on the death penalty nationally and specifically with regard to California as well as on the progress, if any, to meet the unmet recommendations of the Illinois Commission.  

This article concludes that there has been much additional criticism of the failures of the criminal justice and death penalty systems in the country and specifically in California. Nevertheless, the empirical study demonstrates that no additional Recommendations of the Illinois Commission have been met in California in the last fourteen years.  Illinois, itself, enacted significant reforms to meet at least some of the Illinois recommendations.  Nevertheless, Illinois repealed its death penalty.  California, despite no reforms, has not, as yet. The voters will have that option on November 8, 2016.  By voting “Yes“ on Proposition 62, the California death penalty would be repealed.

August 27, 2016 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Remarkable and disconcerning stories emerging from just a few months into Philippine Prez Duterte's aggressive new "war on drugs"

In prior posts here and here, I noted the eagerness of the Philippines new Prez to rachet up a "war on drugs" to almost unheard-of new levels. This new Washington Post article reports on recent developments on this front under the headline "Nearly 2,000 have died in Duterte’s ‘war on drugs’ in the Philippines. One is a 5-year-old girl."  Here are excerpts:

Philippine President Rodrigo Duterte's "war on drugs" has left hundreds of people killed in less than two months.  One of the most recent victims — and possibly the youngest — is 5-year-old Danica May Garcia, who was shot in the head on Tuesday.

According to the online news website Rappler, two motorcycle riders barged into the girl's family's home in Dagupan City, more than 130 miles northwest of Manila, while they were having lunch and opened fire.  The men's main target was Danica's grandfather, 53-year-old Maximo Garcia, who had already surrendered to police a few days earlier after he was told he was on a drug watch list.  Garcia ran to the back of the house toward the bathroom as the gunmen chased and shot at him. Danica, who was stepping out of the bathroom, was gunned down, Rappler reported.

"This is so painful for us," Garcia's wife, Gemma, told the Philippine Daily Inquirer.  "I would miss the nights when Danica would massage us until we fell asleep. I would miss her laughter when she teased her mother." Gemma Garcia, who runs a small eatery, told the Inquirer she was surprised to find out that her husband was a drug suspect, saying he had never been involved in illegal drugs.  Maximo Garcia used to earn a living by driving a tricycle, a form of auto rickshaw commonly used to carry passengers in the Philippines.  But he had to stop after he suffered a stroke three years ago, according to the paper.

Superintendent Neil Miro, Dagupan's police chief, told the Inquirer that 26 suspected drug dealers have been killed in the city as of Tuesday.  Nationwide, more than 1,900 killings have occurred since Duterte took office June 30, according to estimates by several media outlets.  Nearly 700,000 drug users and peddlers have turned themselves in, according to Reuters.

Duterte, a tough-talking former mayor of the southern city of Davao, ran on a pledge to eradicate his country's problems with drugs. Illegal drugs, particularly methamphetamine, locally known as "shabu," have been rampant in the Philippines for decades. The 71-year-old former prosecutor has publicly advocated killing suspected criminals, even once urging citizens to take matters into their own hands.

On Monday, Philippine senators started an investigation into the rising death toll under Duterte's administration. Witnesses, with their faces covered to protect their identities, testified about how their loved ones were arrested and gunned down by police.  Sen. Leila de Lima, head of the Senate justice committee leading the investigation, said in her opening remarks Monday that she's concerned about the spate of killings that appear to have been carried out by vigilantes, not by the government.  "What is particularly worrisome is that the campaign against drugs seems to be an excuse for some — may I just emphasize, some — law enforcers and other vigilantes to commit murder with impunity," de Lima said.

De Lima has been accused of having an affair with her former driver and authorizing him to collect money from drug lords detained in the New Bilibid Prison in Muntinlupa City, Metro Manila when de Lima was justice secretary. De Lima has denied the allegations.

Philippine National Police Director General Ronald dela Rosa reported to the Senate committee earlier this week that of those who died, only 756 were killed during confrontations with police. Dela Rosa, nicknamed "Bato," which means rock or stone, told the Senate committee that the drug suspects were killed because they resisted arrest. "If they did not resist, they would still be alive," dela Rosa told the committee, according to the Inquirer.

The majority of the killings — 1,160 — were committed outside police operations, mostly by vigilantes, and are under investigation, dela Rosa said. He added that not all the deaths are drug-related.

International advocacy groups, meanwhile, have been vocal in opposing Duterte's policy. Phelim Kine, deputy director of the Human Rights Watch's Asia Division, wrote Thursday about Danica May's death. Kine noted that Philippine Justice Secretary Vitaliano Aguirre defended the killings linked to Duterte's war on drugs. "If you're in the Philippines, you will choose to kill these drug lords," Aguirre said. "Desperate times call for desperate measures. So this is what the president is doing, and we support it."

Amnesty International has called on Duterte to "break the cycle of human rights violations" and to curb his "inflammatory" rhetoric. "President Duterte has been elected on a mandate to uphold the rule of law. It is encouraging that he spoke of honouring the Philippines' obligations under international law in his inauguration speech," Rafendi Djamin, Amnesty International's director for Southeast Asia and the Pacific, wrote in June. "But now he is in power, he needs to lend substance to those words and break with his earlier rhetoric."...

Gemma Garcia said that her granddaughter's death has left her and her family in fear for their lives. "We are afraid to stay here. But the problem is, where will we go?" Gemma Garcia told the Inquirer. "The killers may come back for my husband."

When I discuss deterrence and related utilitarian justifications for various sentencing and punishment schemes, I often suggest that a "hard core" utilitarian with no concens about retributivist/desert-based limits on punishment might be willing to consider not just summary executions of convicted criminals, but even executions of relatives of criminals as part of an effort to dramatically deter certain types of wrong-doing. This report suggests that Philippine Prez Duterte's regime is functionally trying out what I always considered just a hypothetical thought experiement.

Prior related posts:

August 27, 2016 in Death Penalty Reforms, Drug Offense Sentencing, Purposes of Punishment and Sentencing, Sentencing around the world | Permalink | Comments (0)

Friday, August 26, 2016

"Where Recreational Marijuana Is Legal, Should Those in Prison for Weed Crimes Get a Puff, Puff, Pass?"

Marijuana-Pot-arrestThe question in the title of this post is not only one that I have given a lot of thought to in recent years, but also the headline of this recent article from The Root. The piece usefully highlights that California's marijuana legalization initiative to be voted upon in November speaks a bit to this issue.  Here are excerpts from the piece:

Twenty years ago, Rico Garcia was 21 when he got caught up in a marijuana sting in Colorado with a friend who wanted to buy some weed. The seller turned out to be a police informant, and Garcia and his friend were arrested. “The police came and arrested us and said we were selling weed,” says Garcia, now a 41-year-old marijuana advocate who runs Cannabis Alliance for Regulation and Education. “My friend said it was his, but … under Colorado law at the time, 8 ounces was possession with intent and I got a felony.”

Garcia says he was a first-time offender and a public defender got him to agree to accept a plea deal. He didn’t realize the full ramifications of having such a charge on his record. “They said, ‘No jail’ — that’s how they get brown people — and I said, ‘That sounds nice,’” recalls Garcia, who is Puerto Rican. He says he got four years’ probation and was released from it in two years, but the felony is still affecting his life. “You’re pretty much disqualified for housing. … Most who could give you a loan for a car or house give you a different rate or simply won’t lend to you. You can’t own a firearm, even in a pro-gun state; you can’t get any government grants or hold certain occupational licenses.”

Even though medical and recreational use of marijuana is legal under most circumstances in Colorado, Garcia’s felony precludes him from being part of the weed boom the state is enjoying, a problem that plagues many people of color trying to get into the weed business. There’s also a debate about the fate of nonviolent offenders currently incarcerated for weed crimes in states where recreational marijuana is now legal. Some marijuana advocates support the idea of state pardons for offenders incarcerated for such crimes as more states consider legalizing recreational marijuana....

[T]here has been some debate among marijuana advocates over whether lawmakers and voters would support such an effort involving weed crimes because they had to walk such tightropes to get legislation for medical and recreational marijuana approved in the first place. California — where most advocates expect Proposition 64, the Adult Use of Marijuana Act, to pass in November in a state that has had a medical-marijuana program for 20 years — could set a national standard for the fate of nonviolent marijuana offenders caught up in the prison system.

Not only does Proposition 64 reduce the current penalty for selling marijuana for nonmedicinal purposes from up to four years in prison to six months in jail and a fine of up to $500, but it also includes big changes for those previously convicted of marijuana crimes. Those serving sentences for activities that are either legal or subject to lesser penalties under the new measure would be eligible to be resentenced. Plus, those who have already done their time could apply to have their convictions removed from their records....

But the politics surrounding whether nonviolent marijuana users should be pardoned or allowed to have their records expunged completely are complicated. In Colorado, Andrew Freeman says, people can apply to have their felony conviction for a marijuana offense that is no longer illegal under Amendment 64 changed to a misdemeanor. But that stays on your record.

Freedman notes that few of the people still in prison in Colorado for marijuana are there only for a single, nonviolent offense, which would make it easy for them to be released. According to a 2014 report (pdf) by the state’s Department of Corrections, there are only 71 nonviolent marijuana offenders among Colorado’s 20,300 inmates....

Tom Angell at the Brooklyn, N.Y.-based Marijuana Majority breaks it down even further, saying that the pardoning of nonviolent marijuana offenders has been part of a general debate among advocates about what is the best, most comprehensive marijuana-reform proposal that can be put on the ballot and garner the support of voters.

“I think there’s some question as to whether a sufficient number of voters would be skittish about the notion of releasing people from prison en masse,” Angell says. “In an ideal world, we want to release all the marijuana offenders yesterday! We absolutely do. But this is politics and reality, and you can’t let the perfect become the enemy of the good. We need to achieve what is achievable today and build on those victories and keep getting wins on the scoreboard.”

This Root story usefully highlights why folks interested in criminal justice and sentencing reform ought to keep a special eye on discussions and developments with marijuana reform in California this election season. Moreover, as this review of some recent posts from my Marijuana Law, Policy & Reform blog should highlight, I see no shortage of interesting marijuana reform issues that ought to interest criminal justice and civil rights folks:

August 26, 2016 in Clemency and Pardons, Collateral consequences, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Preparing for pot professing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Some hisorical perspective on today's debates over private prisons

Over at Bloomberg View, Stephen Mihm has this intriguing new commentary running under the headline "America's Rocky Relationship With For-Profit Prisons." Here are excerpts:

Shareholders of [private prison] corporations, along with advocates of privatization, shouldn’t shrug off the federal decision so hastily. They should remember what happened the last time that prison privatization became popular, and that proponents sought to turn incarceration into a business, claiming it was cheaper, more efficient, and could even achieve better results than public control.

This belief foundered on the reality that privately-run prisons often failed to turn a profit, and when they did, those profits often came at the expense of the inmates’ well-being.  These failures and abuses eventually led to a repudiation of private prisons, with the business of punishment and rehabilitation monopolized by the state. Another shift may now be at hand....

[I]n 1825, Kentucky surrendered the entire state-run prison to Joel Scott, a textile manufacturer.  Scott invested money in the prison but also managed to turn a significant profit. Emboldened by this success, other states quickly followed suit, particularly in the West and the South.  In some cases, the shift to private management yielded solid results; other times, though, it ended in disaster.  When California hired a crooked entrepreneur named James Estell to build and maintain its new San Quentin prison, the new penitentiary soon earned a reputation for corruption, lax management and cruelty toward prisoners.

Estell, who forced prisoners to make bricks, refused to invest in necessities -- such as a wall to keep the inmates within the prison.  Convicts routinely escaped, even after the state grudgingly built a wall, and while under private control, some 47 inmates escaped each year. When the state took over the prison in 1865, that number dropped to four.

Nonetheless, with rare exceptions, the contract system continued to flourish. This was particularly true in the South, which used the convict lease system to institute a de facto slavery for a prison population that was overwhelmingly black.  Throughout the region, state prisons turned over their inmates for work on railroads, turpentine plantations, roads and other projects.  The incompetence and brutality of these for-profit prisons was staggering. In Texas, for example, almost a fifth of the inmates escaped in 1876, and more than 6 percent died, and another 10 percent was listed as “missing,” but were not known to have escaped.  Similar scandals plagued other Southern for-profit ventures.

In the end, these abuses gave ammunition to a coalition of critics.  Humanitarian reformers argued that the for-profit prisons made a mockery of the idea or rehabilitation.  Federal officials who studied prison businesses discovered that prison contractors kept dying industries alive through subsidies of cheap labor.  Labor unions, which hated competition from prison labor, agreed.

The first major defeat for private prisons was in 1887, when Congress passed a law forbidding the contracting of any inmates in the federal prison system.  With private enterprise banned from the national penitentiaries, the battle shifted to the individual states.  After a pitched battle, New York curtailed then completely banned private contractors in the prison system by 1897. Massachusetts followed suit, as did Pennsylvania.

The pro-profit prison industry fought back, but eventually state after state banned for-profit arrangements with contractors, moving prisons on to the public accounts.  This shift was accompanied by the return of another, older idea: that prisons could help rehabilitate inmates, not merely punish them. If reform was the primary purpose of penitentiaries, profit necessarily became a secondary concern.  The decline of the private prison was gradual and halting, but it would eventually receive federal sanction with the passage of the Ashurst-Sumners Act, which made it illegal to transport prison-made goods across state lines.

Eventually, though, the tide would turn yet again.  In 1979, President Carter signed the Justice System Improvement Act, which laid the foundation for the Prison Industries Enhancement Program.  This lifted the ban on interstate commerce in goods made by prisoners, and helped usher a new age of prison privatization, spearheaded by corporations such as CCA.

These companies have thrived as the nation’s prison population skyrocketed, with many inmates incarcerated for non-violent drug offenses. As unease over this situation has grown, voices on both ides of the political spectrum have begun to agitate for prison reform. And that has gone hand-in-hand, much as it did over a century ago, with growing attacks on the marriage of punishment and profit. With the federal government taking the lead, much as it did back in 1887, the U.S. might be on the cusp of another revolution in thinking about the appropriate relationship between prisons and profit.

If history is any guide, it may well take decades for the states to follow, but eventually they will.

Just some (of many) recent and older posts about private prisons:

August 26, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Thursday, August 25, 2016

New York Times magazine takes deep dive into "Where the Death Penalty Still Lives"

In this post earlier this week, I highlighted the new Fair Punishment Project report taking close look at the small number of US counties still actively utilizing the death penalty.  That report,  Too Broken to Fix: An In-depth Look at America’s Outlier Death Penalty Counties, has justifiably received a good deal of national and local media coverage.  But the biggest and most impressive discussion of the report and the various issues it raises appears in this week's forthcoming New York Times magazine via this lengthy feature article under this full headline: "Where the Death Penalty Still Lives: As capital punishment declines nationwide, a tiny fraction of the country generates an alarming number of death sentences. What this new geography tells us about justice in America."   Here are a few excerpts of a great read from the pen of Emily Bazelon:

What separates the 16 counties where the death penalty regularly endures from the rest of the country, where it is fading away?  The 16 counties span seven states in the South and the West.  They include major cities, like Los Angeles, Houston, Las Vegas and Phoenix; suburban areas like Orange County, Calif., and San Bernardino, Calif.; and semirural pockets like Mobile County, Ala., and Caddo Parish, La.  Some are dominated by Demo­cratic voters, some are dominated by Republicans and a few are evenly split.  Many of the counties have high numbers of murders, but so do plenty of other places that don’t use the death penalty.

Brandon Garrett, a law professor at the University of Virginia, along with a research team at Harvard Law School called the Fair Punishment Project, has been trying to identify the factors that explain why certain counties still regularly impose capital punishment.  They have been delving into the death-penalty records of the 16 counties and comparing them with those of other jurisdictions and have found three key features that often characterize the 16. “The people who get the death penalty tend to live in places with overaggressive prosecutors and defense lawyers who aren’t up to the task of defending against them — that’s a double whammy,” says Robert J. Smith, who directs the project. “Then in some places there’s a third element: a cultural legacy of racial bias and exclusion. It’s just not true that we execute the people who are the most culpable.”...

Black jurors are relatively absent from death-penalty trials, which can affect their outcomes.  “Research shows the mere presence of blacks on capital juries — on the rare occasions they are seated — can mean the difference between life and death,” Melynda J. Price, a law professor at the University of Kentucky, wrote in a 2009 law review article. But to be seated on a death-penalty case, a prospective juror must say he or she could vote for execution without substantial moral or religious qualms, in keeping with the test set by the Supreme Court.  Since African-Americans oppose capital punishment at a higher rate than whites, fewer of them can serve.

Prosecutors also can take steps to keep them off juries.  In Caddo Parish, La., which is among the 16 counties, prosecutors excluded black jurors at three times the rate of white jurors between 2003 and 2012, according to Reprieve Australia, a legal-assistance group.  “You see all-white or nearly all-white juries at capital murder trials where you’d never expect it given the diversity of the population,” says Smith of the Fair Punishment Project.

Florida and Alabama also diminish the influence of any juror who wants to spare a defendant’s life.  They are the only states that don’t require a unanimous vote for execution. Between 2010 and 2015, there was only one unanimous verdict among 13 death sentences in Jefferson County and Mobile County, both on the list of 16.  Of the 24 death sentences Angela Corey has won, three came from unanimous juries. The jury split 8 to 4 in eight cases, and in three others, the vote was 7 to 5.

Many of the 16 counties where the death penalty is prevalent have a criminal-justice system with a power structure similar to Duval’s.  Whites retain control to a striking degree, despite the presence of sizable numbers of African-Americans or Latinos.  This phenomenon is the most pronounced within the former borders of the Confederacy. “Alabama has 19 appellate judges,” says Bryan Stevenson, founder of the Equal Justice Initiative, which represents clients on death row in the state.  “They are all white.  Fourteen percent of the trial judges are black.  Out of 42 elected prosecutors in the state, one is black.”  Stevenson says that by seeking numerous death sentences, prosecutors in the Deep South “hark back to the history of using the criminal-justice system to maintain racial control.”  Mobile County is the site of the last known lynching in the country, in 1981.  (After a jury deadlocked in the trial of a black man accused of killing a white police officer, two Ku Klux Klan members abducted a black 19-year-old who had nothing to do with the death, cut his throat and hanged his body from a tree.)  Jefferson had the state’s highest total of lynchings between 1877 and 1950.  In Caddo Parish, men have been hanged outside the courthouse, where a monument to the Confederacy still stands on the front lawn.

August 25, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

Ohio Supreme Court concludes it violates due process to treat a juve adjudication like adult conviction at later sentencing

As reported in this local press article, headlined "Court: Juvenile crimes can't enhance adult sentences," the Ohio Supreme Court handed down an interesting sentencing opinion today in Ohio v. Hand, No. 2016-Ohio-5504 (Ohio Aug. 25, 2016) (available here).  Here is the press summary of the ruling:

Prior juvenile convictions cannot be used to escalate the severity of charges or increase the prison sentences of adults, a divided Ohio Supreme Court ruled today.

In a 4-3 decision, the justices declared that treating cases from juvenile court as prior convictions for adult-sentencing purposes is unconstitutional, violating the due-process clauses of the Ohio and U.S. constitutions, and is “fundamentally unfair.”

Justice Judith Ann Lanzinger, writing for the majority, said that juvenile court proceedings, which are civil — not criminal — matters, are designed to protect the development of those under age 18 while they are rehabilitated.

Adult felony sentences, however, are designed to protect the public and punish offenders, she wrote. “In summary, juvenile adjudication differs from criminal sentencing — one is civil and rehabilitative, the other is criminal and punitive,” Lanzinger wrote.

The full opinion is available at this link. And as this final conclusion paragraph highlights, there are lots of interesting elements of the decision that all sentencing fans will want to check out:

Treating a juvenile adjudication as an adult conviction to enhance a sentence for a later crime is inconsistent with Ohio’s system for juveniles, which is predicated on the fact that children are not as culpable for their acts as adults and should be rehabilitated rather than punished.  It is widely recognized that juveniles are more vulnerable to outside pressures, including the pressure to admit to an offense.  Under Apprendi, using a prior conviction to enhance a sentence does not violate the constitutional right to due process, because the prior process involved the right to a jury trial.  Juveniles, however, are not afforded the right to a jury trial.  Quite simply, a juvenile adjudication is not a conviction of a crime and should not be treated as one.

August 25, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Sixth Circuit panel concludes Michigan sex offender registration amendments "imposes punishment" and thus are ex post unconstitutional for retroactive application

In a significant panel ruling today, the Sixth Circuit has concluded in Does v. Snyder, No. 15-1536 (6th Cir. Aug. 25, 2016) (available here) that Michigan's amendments to its Sex Offender Registration Act (SORA) "imposes punishment" and thus the state violates the US Constitution when applying these SORA provisions retroactively.  Here is some of the concluding analysis from the unanimous panel decision reaching this result:

So, is SORA’s actual effect punitive?  Many states confronting similar laws have said “yes.”  See, e.g., Doe v. State, 111 A.3d 1077, 1100 (N.H. 2015); State v. Letalien, 985 A.2d 4, 26 (Me. 2009); Starkey v. Oklahoma Dep’t of Corr., 305 P.3d 1004 (Okla. 2013); Commonwealth v. Baker, 295 S.W.3d 437 (Ky. 2009); Doe v. State, 189 P.3d 999, 1017 (Alaska 2008).  And we agree.  In reaching this conclusion, we are mindful that, as Smith makes clear, states are free to pass retroactive sex-offender registry laws and that those challenging an ostensibly non-punitive civil law must show by the “clearest proof” that the statute in fact inflicts punishment.  But difficult is not the same as impossible.  Nor should Smith be understood as writing a blank check to states to do whatever they please in this arena.

A regulatory regime that severely restricts where people can live, work, and “loiter,” that categorizes them into tiers ostensibly corresponding to present dangerousness without any individualized assessment thereof, and that requires time-consuming and cumbersome in-person reporting, all supported by — at best — scant evidence that such restrictions serve the professed purpose of keeping Michigan communities safe, is something altogether different from and more troubling than Alaska’s first-generation registry law.  SORA brands registrants as moral lepers solely on the basis of a prior conviction.  It consigns them to years, if not a lifetime, of existence on the margins, not only of society, but often, as the record in this case makes painfully evident, from their own families, with whom, due to school zone restrictions, they may not even live.  It directly regulates where registrants may go in their daily lives and compels them to interrupt those lives with great frequency in order to appear in person before law enforcement to report even minor changes to their information.

We conclude that Michigan’s SORA imposes punishment.  And while many (certainly not all) sex offenses involve abominable, almost unspeakable, conduct that deserves severe legal penalties, punishment may never be retroactively imposed or increased.  Indeed, the fact that sex offenders are so widely feared and disdained by the general public implicates the core countermajoritarian principle embodied in the Ex Post Facto clause.  As the founders rightly perceived, as dangerous as it may be not to punish someone, it is far more dangerous to permit the government under guise of civil regulation to punish people without prior notice.  Such lawmaking has “been, in all ages, [a] favorite and most formidable instrument[] of tyranny.” The Federalist No. 84, supra at 444 (Alexander Hamilton).  It is, as Justice Chase argued, incompatible with both the words of the Constitution and the underlying first principles of “our free republican governments.” Calder, 3 U.S. at 388–89; accord The Federalist No. 44, supra at 232 (James Madison) (“[E]x post facto laws . . . are contrary to the first principles of the social compact, and to every principle of sound legislation.”). The retroactive application of SORA’s 2006 and 2011 amendments to Plaintiffs is unconstitutional, and it must therefore cease.

I was involved with some amicus briefing in this case, so I am a bit biased when saying I think the Sixth Circuit got this one right.  But I do not think I am showing any bias when asserting this ruling is a big deal (and could become an even bigger deal if Michigan seeks a further appeal to the full Sixth Circuit or to the US Supreme Court).

August 25, 2016 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (17)

"More Bang for Your Buck: How to Improve the Incentive Structure for Indigent Defense Counsel"

The title of this post is the title of this notable new empirical paper authored by Benjamin Schwall that I just noticed on SSRN. Here is the abstract:

The payment system and related incentive structure can have a major effect on an attorney’s behavior and this impact is somewhat predictable.  Using data from the South Carolina Commission on Indigent Defense, we provide some evidence of how paying attorneys a flat fee can impact their behavior compared to paying them an hour hourly rate.  Unsurprising, the effect is that attorneys put forth less effort when being paid a flat fee.  It is important to recognize the trade-offs between controlling costs and providing effective representation that any payment system possesses. Using economic theory and a simple model, we discuss the various benefits and drawbacks of the different payment systems that are common for indigent defense attorneys.  Finally, we discuss how the different payment systems can be improved to better align the attorney’s interests with the State’s interests.

August 25, 2016 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

You be the state legislator: how should Ohio respond to new data showing drug overdose deaths reaching another record high in 2015?

Png;base6493e59080e74e719cThe question in the title of this post is the question I plan to be asking in coming days to students in both my first-year Criminal Law class and in my upper-level Sentencing Law & Policy class.  It comes to mind in response to the "breaking news" alert I received from my local Columbus Dispatch linking to this new article reporting on new data under the headline "Drug overdose deaths pushed to another record high in Ohio." Here are some data details:

Drug overdoses took the lives of a record 3,050 Ohioans last year, more than one-third from fentanyl, a super-potent opiate often mixed with heroin. Across Ohio, someone died from a drug overdose every two hours and 52 minutes on average all year long in 2015.

The annual report on unintentional drug overdose deaths released today by the Ohio Department of Health showed the toll from all drugs was 20.5 percent higher than 2014, a disappointment to state officials who have been working for years on many fronts to curb the drug-related carnage.

While heroin deaths rose, fatalities from fentanyl, a synthetic narcotic 30 to 50 times more potent than heroin and up to 100 times stronger than morphine, soared to 1,155 last year, more than double the 503 deaths in 2014. The vast majority involved illegally produced fentanyl, not the prescription drug commonly given to end-stage cancer patients.

The 2015 deaths bring the total to nearly 13,000 overdose victims in the state since 2003. The report was compiled from Ohio's 88 county coroners....

"These are 3,050 tragedies that could have been avoided," said Tracy Plouck, director of the Ohio Department of Mental Health and Addiction Services. "It's very disappointing, but we have a responsibility as leaders in the state to continue to press forward ... This absolutely does not mean we have given up."

Gov. John Kasich, who often spoke passionately about the drug epidemic during his Republican presidential campaign, said in an interview that the state continues "playing a rear guard action ... But I believe we’re making progress. I feel we’re doing every thing we possibly can. We're not looking the other way. We're not putting our heads in the sand. "This is not about politics. This is about life."

Kasich said the drop in opiate pain pills prescriptions is a good sign because people usually become addicted to painkillers before moving to heroin. “We knew when we started this battle five years ago that progress wouldn’t be easy, but we are well prepared to stay on the leading edge of fighting this epidemic thanks to the multi-faceted strategies we have put into place," said Dr. Mark Hurst, medical director of the Ohio Department of Mental Health and Addiction Services.

Public Safety Director John Born said the higher numbers "are motivating because we see the impact of drugs on the quality of life and life itself." Born said troopers already have seized 118 pounds of heroin this year, compared to a total of 304 pounds seized from 2010 to 2015. The report showed Franklin County overdose deaths soared to 279 last year, a 42 percent jump from 196 in 2014. The county leads the state in heroin seizures by the Highway Patrol, 76 pounds from 2010 through 2015.

People 25 to 34 years old were the most common fentanyl victims, with men twice as likely to die from an overdose. Every drug category except prescription pills, alcohol and "unspecified" rose in 2015 compared to 2014. Heroin deaths rose to 1,424 from 1,196 (up 19 percent); prescription opioids (667 from 672, down 1 percent); benzodiazepines (504 from 420, up 20 percent); cocaine (685 from 517 (up 32 percent); alcohol (380 from 383, down less than 1 percent); methadone (108 from 103, up less than 1 percent); hallucinogens (61 from 49, up 24 percent); barbiturates (19 from 6, up 200 percent); and other unspecified (194 from 274, down 29 percent).

Hamilton County reported the most fentanyl-related deaths with 195, followed by Summit, 111; Butler, 104; Montgomery, 102; Cuyahoga, 83; Clermont, 54; Clark, 48; Lucas, 41; Franklin, 40; Stark, 26; Trumbull, 25; Lorain, 21, and Greene, 20.

Dr. Mary DiOrio, medical director of the Department of Health, said the state has taken several steps in the drug fight, including establishing the Start Talking education program aimed at young people, increasing law enforcement efforts, encouraging physicians and pharmacists to use the online drug monitoring system, and creating opioid prescribing guidelines.

The state last year asked the federal Centers for Disease Control and Prevention to step in to study the fentanyl problem. Officials said they will take further action this year, asking state lawmakers to pass tougher laws for selling fentanyl, increasing money for naloxone, expanding treatment options, and adding drug courts.

As regular readers of my blog Marijuana Law, Policy & Reform know, one possible (and surely controversial) legislative response to this problem would be to explore more rigorously and expeditiously whether legalization of marijuana might be a port to consider in this deadly drug overdose Ohio storm.  As noted in this post, well over six month ago, US Senator Elizabeth Warren wrote to the Center for Disease Control and Prevention to request more research on wether marijuana reform might help address the national opiate abuse problem.  I would be very eager to see Ohio official following-up on this front so as to more fully explore the prospect that has been shown in some existing research that making marijuana more readily and legally accessible can contribute usefully to the needed "multi-faceted strategies" for dealing with this pressing public health problem 

Some recent recent related posts from my blogs:

August 25, 2016 in Drug Offense Sentencing, National and State Crime Data, Offense Characteristics, Who Sentences? | Permalink | Comments (0)

Massachusetts judge's probation sentence for sexual assault gives east coast its own Brock Turner

This new New York Times article, headlined "Judge’s Sentencing in Massachusetts Sexual Assault Case Reignites Debate on Privilege," reports on the latest seemingly too-lenient sentence for sexual assault stirring up controversy in the wake of a summer spent discussing the now-infamous Brock Turner case out of California.  Here are the details:

The two women were asleep on a bed after drinking at a party when they were sexually assaulted.  A high school athlete pleaded guilty to indecent assault and battery on a person over 14 in the case, according to court documents. But when a Massachusetts judge sentenced the defendant, David Becker, to two years’ probation last week, he reignited a debate on white privilege, leniency and judicial discretion.

The case is being compared to a rape trial in which a champion student swimmer from Stanford University, Brock Turner, received six months in jail for raping an unconscious woman behind a Dumpster at a party on campus.  The judge in that case, Aaron Persky of the Santa Clara County Superior Court, was the subject of a recall effort in June.

Prosecutors in the Massachusetts case recommended a two-year sentence for Mr. Becker, 18, a former student at East Longmeadow High School, a spokesman for the Hampden County district attorney’s office, James Leydon, said in an email on Wednesday.  Mr. Becker also would have had to register as a sexual offender.

But on Aug. 15, Judge Thomas Estes of Palmer District Court not only ignored the prosecutors’ recommendation, but he also allowed Mr. Becker to serve his probation in Ohio, where the defendant planned to attend college, court documents showed. Judge Estes said Mr. Becker must abstain from drugs and alcohol, submit to an evaluation for sex offender treatment and stay away from the victims, both of whom were 18, they showed.

According to The Republican, Mr. Becker’s lawyer, Thomas Rooke, said, “The goal of this sentence was not to impede this individual from graduating high school and to go onto the next step of his life, which is a college experience.”

“He can now look forward to a productive life without being burdened with the stigma of having to register as a sex offender,” Mr. Rooke said, according to The Republican. Mr. Rooke could not be reached by telephone on Wednesday.

After Mr. Becker’s sentence was made public, a petition went up online seeking names to present to state lawmakers to remove the judge. It had garnered more than 10,000 signatures by Wednesday afternoon. “This is yet another instance of a white athlete receiving a slap on the wrist for a violent sexual crime, following on the heels of the Brock Turner case in California,” the petition said.

Mr. Becker was originally charged with two counts of rape and one count of indecent assault, according to the documents.  According to police reports, Mr. Becker told investigators that when one of the women “didn’t protest,” he assumed it was “O.K.,” but he denied having any physical contact with the other woman, according to the documents.

In a text message to one of the victims the next day, Mr. Becker apologized for the assault, the court documents said. The victim responded with a text telling him, “Don’t even worry about it,” but later told the police that she had said that because “she did not know what else to say,” according to a police report presented in court. The police declined to comment on Wednesday.

The sexual assault case is one of several recent episodes that activists say show a troubling trend toward lenient punishment for young white perpetrators.  In one case in Colorado, a former University of Colorado student, Austin Wilkerson, 22, who was convicted of raping a female student in 2014, was sentenced to two years on work or school release and 20 years to life on probation.  He also must register as a sex offender.  Prosecutors said the victim had consumed too much alcohol at a party, The Daily Camera reported. “No prison time for sexual assault sends a terrible message,” the Colorado attorney general, Cynthia Coffman, said on Twitter after the decision....

Colby Bruno, a senior legal counsel with the Victim Rights Law Center in Massachusetts, said that in the 12 years she had been with the center, she has seen her share of cases involving elements of racial privilege.  Even more so, she has observed a bias in favor of male suspects in court cases involving violence against women, she said in a telephone interview, adding, “This is basically business as usual for the courts.”

“There is an element in each of the cases of entitlement on the part of the perpetrators. It is something I have seen across the board in the cases that I have represented,” she said.  “Giving perpetrators a second chance is not a good idea,” Ms. Bruno added. “This is a felony, not a mistake, and it has to be treated like that.”

August 25, 2016 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4)

Wednesday, August 24, 2016

Interesting exploration of possible harms of "Gateway Crimes"

Murat Mungan has this interesting new paper up at SSRN titled simply Gateway Crimes."  Here is the abstract:

Many who argue against the legalization of marijuana suggest that while its consumption may not be very harmful, marijuana indirectly causes significant social harm by acting as a “gateway drug,” a drug whose consumption facilitates the use of other, more harmful, drugs.  This article presents a theory of “gateway crimes”, which, perhaps counterintuitively, implies that there are social gains to decriminalizing offenses that cause minor harms, including marijuana-related offenses.

A typical gateway crime is an act which is punished lightly, but, because it is designated as a crime, being convicted for committing it leads one to be severely stigmatized. People who are stigmatized have less to lose by committing more serious crimes, and, therefore, the criminalization of these acts increases recidivism.  Thus, punishing “gateway crimes” may generate greater costs than benefits, and this possibility must be kept in mind when discussing potential criminal justice reforms. This “gateway effect” does not require that, but, is strongest when, people underestimate, or ignore, either the likelihood or magnitude of the consequences associated with being convicted for a minor crime.  Therefore —  if potential offenders in fact underestimate expected conviction costs —  this theory not only implies previously unidentified benefits associated with decriminalizing acts that cause questionable or minor harms, but also benefits associated with making the costs associated with convictions more transparent.

August 24, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2)

Should I feel guilty finding delicious ironies in reports of condemned California murderers killing themselves with smuggled illegal drugs?

The question in the title of this post is my sincere uncertainty concerning my reaction to this new lengthy Los Angeles Times article headlined "Illegal drugs are flowing into California's most guarded prisons — and killing death row inmates."  Here is how the article starts and ends:

Condemned murderer Michael Jones was acting strangely and profusely sweating when guards escorted him in chains to the San Quentin medical unit that doubles as the psych ward on death row.

“Doggone, I don’t think you’re ever going to see me again,” he told a fellow inmate, Clifton Perry.  Hours later, Jones was dead.  Toxicology tests later found that he had toxic levels of methamphetamines in his blood.

The condemned inmates on California's death row are among the most closely monitored in the state.  Death row’s 747 inmates spend most of their time locked down, isolated from the rest of the prison system under heavy guard with regular strip searches and checks every half-hour for signs of life.  Still, six death row inmates died between 2010 and 2015 with detectable levels of methamphetamines, heroin metabolites or other drugs in their system, according to Marin County coroner records.

Three of them had toxic levels of drugs, including one in whose intestines were found five snipped fingers of a latex glove, each packed with methamphetamine or marijuana. He had overdosed when they burst.  A 70-year-old man among the three died of acute methamphetamine toxicity. He left a stash of marijuana in his cell. State psychological reports and court files document at least eight non-fatal drug overdoses that required death row inmates to be hospitalized during this period.

Jones' death was reported as a suicide. In the psych ward, he attempted to strangle himself with an electrical cord.  He was cut free by officers but died 10 minutes later. The coroner's report showed that Jones bore signs of chronic drug abuse. State corrections officials declined to discuss the case or provide data on drugs found on death row — at first citing that investigation and then citing a wrongful death claim filed by Jones’ family.  The department provided a statement saying the prison has thwarted past attempts by visitors to bring drugs into San Quentin.

According to data from the U.S. Bureau of Justice Statistics and the state prison medical office, the drug-related death rate in California prisons is seven times higher than that of prisons in the rest of the country. “Drugs have considerable value inside prison and so some inmates have a very strong incentive to procure them," the statement said. "Regardless of the security level of the inmate, the presence of any contraband items is concerning to us.”

The overdoses on death row mirror the larger problem with drugs in California’s prison system as a whole.  From 2010 to 2015, 109 inmates died of overdoses, according to state figures.  California's prison drug trade is notoriously robust.   The drug-related death rate in California prisons — 18 deaths per 100,000 inmates in 2013 — is seven times higher than prisons in the rest of the country, according to data from the U.S. Bureau of Justice Statistics and the state prison medical office.

Reports to the Legislature show that as many as 80% of inmates in some cell blocks tested positive for illegal substances in 2013. The same year, the state's prison watchdog, the independent Office of Inspector General, chastised corrections officials for making "very little or no effort" to trace the source of drugs when inmates overdose....

Because of the high security on death row, some who have worked at San Quentin suspect that the drug trade is abetted by prison staff. During his tenure as a death row psychologist, Patrick O’Reilly said in an interview that he discovered a psychiatric technician bartering alcohol and amphetamines for inmates’ prison-prescribed opiates. Similarly, the inspector general's office reported that a death row officer in 2011 was accused of buying morphine from condemned inmates. The report states she paid with ramen noodles and candy.

Outside of death row, the trade takes place on an enormous scale.  This spring, federal agents busted a Southern California prison narcotics ring in which a state drug counselor allegedly smuggled $1 million of meth and heroin sealed in potato chip bags to inmates in her treatment group.  The state prison guard union has long raised objections to vigorous screening of guards as they arrive and leave work, noting that the state would have to pay large amounts for the extra time that would add to each shift. The union "supports the department's efforts to keep drugs out of prison," said spokeswoman Nichol Gomez. "Anyone who brings contraband inside prisons should be held accountable. ... The majority of correctional officers take their oath seriously. "

All of the men on San Quentin’s death row are there for murder.  Many arrived on death row with long histories of drug addiction.  Most killed their victims during robberies or gang fights, but the population also includes psychopaths and serial killers.  Until a psychiatric unit for the condemned was opened in 2014, severely mentally ill and psychotic inmates were housed with the rest of the condemned.

Former San Quentin Warden Jeannie Woodford, state prison director under Gov. Arnold Schwarzenegger, said extreme idleness and the cramped, ill-suited confines of death row complicate drug abuse.  “Idleness is such a problem and it leads people to self-medicate,” Woodford said.

Although guards are supposed to randomly search cells each shift as a curb against drugs, weapons and other contraband, one former San Quentin corrections officer said staffing issues have made it impossible for guards to do all the required checks. Moreover, the amount of property that condemned inmates accumulate over decades of confinement clutters many cells. "What is said and what is done are two different things," said Tony Cuellar, a former San Quentin officer. In that environment, Cuellar said, officers "picked and chose" when to try to confront a condemned drug user.

There are soooooo many ironies in this report, I do not know where to start. In an effort to keep them straight (and to encourage comments about which irony is most remarkable), I will provide a numbered list of just some of the ironies that jump out at me:

  1. California has not conducted an execution of a condemned murderer in over a decade due in large part to the incompetence of prison officials and others in California in acquiring and handling drugs involved in its planned execution protocols ... and yet corrupt prison officials seem to be able to indirectly help condemned inmates access the drugs with which they are killing themselves.
  2. Many abolitionist have complained and litigated aggressively to try to prevent prison officials in many states nationwide from finding ways to "smuggle" into the state the drugs needed to conduct lawful (painless?) official executions ... and yet California prison officials are smuggling drugs directly to condemned inmates in ways that functionally facilitate what are essentially unlawful (painful) self-executions.
  3. This article suggests that we should be seriously concerned that the "drug-related death rate in California prisons — 18 deaths per 100,000 inmates in 2013 — is seven times higher than prisons in the rest of the country" ... and yet that (stunningly high) drug-related death rate in California prisons is still almost half of the drug-overdose death rate  — reported to be at over 32 deaths from drug overdose per 100,000 inhabitants — according to the latest figure in the state of West Virginia.
  4. With a death row population of less than 1000, just a single overdose per year on California's death row is a relatively high rate ... and yet the reality that so many arrived "on death row with long histories of drug addiction ...  [and murderered during] robberies or gang fights" surely suggests the real possibility that a many of those unfortunate souls now condemned to die in California have lived a lot longer on death row than they might have lived on the mean streets of California.

I could go on, but I already am starting to feel mean and crass about how I am responding to this new report from California's always notable death row.

August 24, 2016 in Death Penalty Reforms, Drug Offense Sentencing, Prisons and prisoners, Who Sentences? | Permalink | Comments (7)

"Defining Violence: Reducing Incarceration by Rethinking America's Approach to Violence"

Image-fullThe title of this post is the title of this important and timely new report by the Justice Policy Institute.  Here is an extended passage from this effective JPI report's effective introduction:

Statutes abstractly categorize behavior as violent or nonviolent. How might these categorizations, along with the workings of the justice system, combine to limit reform efforts designed to reduce our reliance on incarceration? Does statistical reporting obscure critical facts that change agents, policymakers, and the public need to consider when designing policies to significantly reduce the use of incarceration?

In Defining violence: reducing incarceration by rethinking America’s approach to violence, the Justice Policy Institute (JPI) explores how something is defined as a violent or nonviolent crime, how that classification affects how the justice system treats a person, and how all that relates to the use of incarceration.  The report summarizes the relationship of offenses to the use of incarceration and how that varies by:

  • How violent offenses are categorized from place to place: An act may be defined as a violent crime in one place and as a nonviolent crime somewhere else.  The law in a particular jurisdiction may define something as a nonviolent crime, but a corrections department may define the same behavior differently.  For example, although burglary rarely involves person-to-person behavior, it is defined as a violent crime in some places and can lead to a long prison sentence;

  • How context matters in the way a violent or nonviolent offense is treated by the justice system: Sometimes a behavior that would not normally be a defined as a “crime of violence” or result in a long prison term can mean a much longer term of imprisonment when a gun is involved; and

  • The disconnection between the evidence of what works to make us safer and our current policies: People convicted of some of the most serious offenses —  such as homicide or sex offenses —  can have the lowest recidivism rates, but still end up serving long prison terms.

These three factors overlap with each other in a way that brings into sharp relief the fact that the nation will fail to make meaningful reductions in the use of incarceration unless we revamp our approach to violent crime and how the justice system treats people convicted of a violent crime.  How a behavior is treated by the courts can occur in isolation from the research that demonstrates someone’s ability to change, and brings competing values around what is proportionate and just response to behavior.

This is a complicated political and systems reform issue.  When politicians support bills that focus solely on nonviolent crimes, they can point to polling and voter-enacted ballot initiatives that show that the public supports their agenda. In some places, policymakers have vocally rejected justice reform bills and ballot initiatives if there was a hint that someone convicted of a violent crime might benefit from the change.

When someone has been the victim of a violent crime, they may want to see that person locked up. Scholars have noted that if the U.S. wants to treat the root causes of violence in the communities most affected by serious crime, it will require a significant investment of public resources —  more than what we could currently “reinvest” from downsizing and closing prisons and jail.

To help unpack some of the complicated issues at play, the Justice Policy Institute (JPI) analyzes how behaviors are categorized under sometimes-arbitrary offense categories, explores the larger context that exists when something is classified as a violent or nonviolent offense, and shows the consequences for the justice system and the use of incarceration.  This report also looks at how the debate over justice approaches to violent crime, nonviolent crime, and incarceration is playing out in legislatures and how justice reform proposals are debated.

August 24, 2016 in Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (3)

Important "Real Clear" debate explores whether Texas "smart on crime" reforms have really been successful

A series of dueling posts over at the Real Clear Policy blog has been engaging with crime and punishment data from Texas to provide different views on whether so-called "smart on crime" reforms in the Lone Star State have proven truly effective at reducing both crime and imprisonment.  The discussion is too intricate to summarize here, so I encourage readers interested in this important debate to check out these post in order:

August 24, 2016 in Data on sentencing, Detailed sentencing data, National and State Crime Data, Prisons and prisoners, State Sentencing Guidelines | Permalink | Comments (0)