Sunday, April 23, 2017

Making the case that older punishments may not be so much crueler than current ones

Columnist Ross Douthat has this notable new New York Times commentary headlined "Crime and Different Punishments." Here are excerpts:

The tendency in modern criminal justice has been to remove two specific elements from the state’s justice: spectacle and pain.  During the 19th and early 20th centuries, pillories and stocks and whipping posts became museum pieces, the hangman and the firing squad were supplanted by more technical methods, and punishment became something that happened elsewhere — in distant prisons and execution chambers, under professional supervision, far from the baying crowd.

All of this made a certain moral sense.  But the civilizing process did not do away with cruelty and in some ways it could exacerbate it.  With executions, the science was often inexact and the application difficult, and when it went wrong the electric chair or the gas chamber could easily become a distinctive kind of torture.  During the last century lethal injection, now the execution method of choice, had a higher “botch rate” by far than every other means of killing the condemned. Meanwhile, the lowest rate of failure (albeit out of a small sample size) belonged to that old standby: the firing squad.

Few prisoners face execution, and anti-death penalty activists may yet reduce that number to zero.  But botched injections are not the only ways in which we pile cruelties on the condemned.  Our prison system, which officially only punishes by restraint, actually subjects millions of Americans to waves of informal physical abuse — mistreatment by guards, violence from inmates, the tortures of solitary confinement, the trauma of rape — on top of their formal years-long sentences.

It is not clear that this method of dealing with crime succeeds at avoiding cruel and unusual punishment so much as it avoids making anyone outside the prison system see it.  Nor is it clear that a different system, with a sometimes more old-fashioned set of penalties, would necessarily be more inhumane....

I would rather face the firing squad than be strapped down and injected into eternity, and I would choose a strong dose of pain and shame over years under the thumb of guards and inmates and the state.

We tell ourselves that we have prisoners’ good in mind, and the higher standards of our civilization, because we do not offer them this choice.  But those standards may be less about preventing ourselves from becoming like our sinful ancestors, and more about maintaining the illusion of clean hands — while harsh punishment is still imposed, but out of sight, on souls and bodies not our own.

April 23, 2017 in Criminal Sentences Alternatives, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Notable recent work from the Prison Policy Initiative on prison wages and medical co-pays in prisons

LOGO_OnBlack_260s_400x400A helpful reader made sure I did not miss some recent pieces from the Prison Policy Initiative on prison wages and medical co-pays in prisons that ought to be of interest to readers.

The piece on wages, "How much do incarcerated people earn in each state?," provides a 50-state survey of wages paid to incarcerated people. Here is a snippet:

One major surprise: prisons appear to be paying incarcerated people less today than they were in 2001.  The average of the minimum daily wages paid to incarcerated workers for non-industry prison jobs is now 87 cents, down from 93 cents reported in 2001.  The average maximum daily wage for the same prison jobs has declined more significantly, from $4.73 in 2001 to $3.39 today.  What changed?  At least seven states appear to have lowered their maximum wages, and South Carolina no longer pays wages for most regular prison jobs -- assignments that paid up to $4.80 per day in 2001.  With a few rare exceptions, regular prison jobs are still unpaid in Alabama, Arkansas, Florida, Georgia, and Texas.

The piece on medical co-pays, "The steep cost of medical co-pays in prison puts health at risk," highlights the hours it would take a low-paid incarcerated worker to earn enough for one co-pay. Here is an excerpt:

The excessive burden of medical fees and co-pays is most obvious in states where many or all incarcerated people are paid nothing for their work: Alabama, Arkansas, Florida, Georgia, Mississippi, South Carolina, and Texas.  Texas is the most extreme example, with a flat $100 yearly health services fee, which some officials are actually trying to double to $200.  People incarcerated in these states must rely on deposits into their personal accounts -- typically from family -- to pay medical fees. In most places, funds are automatically withdrawn from these accounts until the balance is paid, creating a debt that can follow them even after release.

Co-pays that take a large portion of prison wages make seeking medical attention a costly choice.  Co-pays in the hundreds of dollars would be unthinkable for non-incarcerated minimum wage earners.  So why do states think it’s acceptable to charge people making pennies per hour such a large portion of their earnings?  Some might argue that incarcerated people have nothing better to spend wages on than medical care.  But wages allow incarcerated people to buy things they need that the prison does not provide: toiletries, over-the-counter medicine, additional clothes and shoes, as well as phone cards, stamps, and paper to help them maintain contact with loved ones.  Co-pays that take a large portion of prison wages make seeking medical attention a costly choice.

April 23, 2017 in Fines, Restitution and Other Economic Sanctions, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

"I used to support legalizing all drugs. Then the opioid epidemic happened."

The title of this post is the headline of this lengthy Vox commentary authored by German Lopez.  I recommend the piece in full even though I take issue with some of its particulars.  Here are some extended excerpts:

In terms of overdoses, the opioid epidemic is deadlier than any other drug crisis in US history — more than crack, meth, and any other heroin epidemic. In total, more than 560,000 people in the US died to drug overdoses between 1999 and 2015 (the latest year of data available) — a death toll larger than the entire population of Atlanta. And while many of these deaths are now linked to illicit drugs like heroin and fentanyl, the source of the epidemic — what got people started on a chain to harder drugs — was opioid painkillers, and legal painkillers are still linked to most opioid overdose deaths.

This was exactly what anti-legalization activists have warned about: Companies got a hold of a dangerous, addictive product, marketed it irresponsibly, and lobbied for lax rules. The government’s regulatory response floundered. The government even worked with the drug companies in some cases — under the influence of lobbying, campaign donations, and drugmaker-funded advocacy groups. And people got addicted and died.

Looking at this crisis, it slowly but surely dawned on me: Maybe full legalization isn’t the right answer to the war on drugs. Maybe the US just can’t handle regulating these potentially deadly substances in a legal environment. Maybe some form of prohibition — albeit a less stringent kind than what we have today — is the way to go.

I should be clear: I am talking about the legalization of harder drugs, so none of this applies to marijuana legalization. While there are real concerns with pot dependence and people doing stupid things on weed, my perspective is that it’s such a relatively harmless drug, according to the best scientific evidence, that the government can afford to screw it up. Especially since the alternative is a prohibition regime that leads to hundreds of thousands of needless arrests in the US each year and fosters violence as traffickers fight over turf or settle other beefs related to the drug trade.

But with the harder drugs, there’s a lot of room to mess up — as the opioid epidemic demonstrates....

Consider the US statistics: In 2015, drug overdoses killed more than 52,000 people, and more than 33,000 of those deaths were linked to opioids. That’s much more than the number of people who died to homicides: nearly 18,000 in 2015, only some of which were linked to violence in the war on drugs. Based on these figures, the legal drug led to a crisis that is killing way more people than black market–related violence possibly could.

while it is true that there are other metrics for suffering under prohibition (such as arrests), the same also applies for the opioid epidemic: There are a lot of people suffering from addiction, along with their friends, family, and broader community, yet haven’t overdosed and may never die of an overdose.

So while it’s hard to draw a perfect comparison in terms of overall suffering, the opioid epidemic, at the very least, seems to be much deadlier than violence related to drug prohibition is in the US.

Still, it’s hard to deny that the current model of prohibition has serious costs. Just like lenient regulation through legalization is dangerous, so too is excessive regulation — via punishment — through prohibition. There’s really little argument that America has been excessive in its punishment: the harsh mandatory minimum sentences, the three-strikes laws that can get someone life for drugs, and the ridiculous probation and parole rules that can get someone thrown back into prison for little more than possession. Not only can these measures cause a lot of human misery, but they also seem to be totally ineffective for actually deterring drug use.

The research is clear on this point: Severity of punishment does little to nothing to deter crime. In particular, a 2014 study from Peter Reuter at the University of Maryland and Harold Pollack at the University of Chicago found there’s no good evidence that tougher punishments or harsher supply-elimination efforts do a better job of driving down access to drugs and substance abuse than lighter penalties. So increasing the severity of the punishment doesn’t do much, if anything, to slow the flow of drugs.

As drug policy experts emphasized in a piece I reported out in 2016, there’s a lot of room for the US to relax its severity of punishment before legalization. One possibility is essentially the Portuguese model: Drugs are decriminalized for personal use, so you can’t be punished with prison time merely for possessing or using illegal substances like cocaine and heroin. But the drugs remain illegal for big companies to produce and sell for profit — effectively stopping the kind of commercialization that’s spurred the tobacco, alcohol, and opioid epidemics....

This milder form of prohibition isn’t a perfect solution. I don’t think there is a perfect solution. As with many policy debates, this is really about picking between a bunch of unsatisfactory options. Faced with an excessively harsh criminal justice system and a legal industry that carelessly causes drug epidemics, I have come down somewhere in the middle of these two extremes.

As Keith Humphreys, a drug policy expert at Stanford University, once told me, “There's always choices. There is no framework available in which there's not harm somehow. We’ve got freedom, pleasure, health, crime, and public safety. You can push on one and two of those — maybe even three with different drugs — but you can’t get rid of all of them. You have to pay the piper somewhere.” After witnessing the opioid epidemic firsthand, I have learned this lesson all too well — and I am genuinely scared of how America would pay for full legalization.;

April 23, 2017 in Drug Offense Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Friday, April 21, 2017

Heading out to speak at 2017 World Medical Cannabis Conference & Expo

Blogging in this space will be light over the next few days because I am about to travel to Pittsburgh to attend and participate in the 2017 World Medical Cannabis Conference & Expo.   As this schedule details, I am speaking tomorrow afternoon (Saturday) on a panel titled "Higher Education & Its Role in the Industry." Here is how the panel is previewed:

The cannabis industry is set to create more jobs than established industries like manufacturing by 2020.  However, there is still no clear path to getting involved in the industry or clear educational path.  Students need more courses and curriculum that teaches the fundamentals of the industry.  These include all areas of the industry including business, agriculture, research, etc.  This panel will talk about what courses are currently available for students and what still needs to be offered as well as how higher education can translate their findings into commercial services and products the industry can use to advance itself.

This preview post for this even proves a useful and timely excuse to highlight some recent posts from my Marijuana Law, Policy & Reform blog. Here is just a sample of some April postings from that space:

April 21, 2017 in Marijuana Legalization in the States, Pot Prohibition Issues, Preparing for pot professing, Who Sentences? | Permalink | Comments (12)

Arkansas finally navigates litigation to complete one execution

As reported in this new Washington Post piece, "Arkansas late Thursday night carried out the state’s first execution in more than a decade after the U.S. Supreme Court, in a last-minute series of orders, rejected requests by a death-row inmate to stay his lethal injection." Here is more:

The execution followed a wave of criticism and tumult in Arkansas, which had set an unprecedented scheduled of executions, plans that were imperiled by a series of court orders halting at least some of the eight lethal injections originally set for April.

As part of its aggressive scheduling, which the state attributed to expiring lethal-injection drugs, Arkansas had planned to carry out back-to-back executions on Thursday night at a state prison southeast of Little Rock.  But that was abandoned when a state court blocked one of those lethal injections, and officials instead focused solely on plans to execute Ledell Lee, 51, by lethal injection.

Lee was sentenced to death in 1995 for the killing of Debra Reese, who was beaten to death in her home two years earlier. According to court petitions and his attorneys, Lee has long denied involvement in Reese’s death, and he was seeking DNA testing to try and prove his innocence.

Lee’s execution was confirmed by state officials. His time of death was 11:56 p.m. local time, according to the Associated Press, which had a reporter serve as a media witness. He is the seventh person executed in the United States so far this year....

Appeals filed ... for Lee hoping to delay his execution were rejected by the U.S. Court of Appeals for the 8th Circuit after that court briefly stayed the lethal injection. Lee’s attorneys also petitioned the U.S. Supreme Court, not long after justices on Thursday night denied other stay requests filed by several Arkansas death-row inmates. The attorneys filed a volley of appeals at the high court seeking a stay of execution, saying that technology exists now that could verify his innocence and arguing that he has an intellectual disability that should prevent his execution.

The Supreme Court ultimately denied his stay requests in orders released by the court just before 11:30 p.m. at the Arkansas prison, following an hours-long delay imposed by Justice Samuel A. Alito Jr. so the high court could review the inmate’s appeals. Alito, who is assigned cases from the federal circuit covering Arkansas, then issued an order delaying Lee’s lethal injection “pending further order of the undersigned or of the Court.” He vacated his order after the justices declined all of the requests.

According to the orders, Alito referred the stay requests to the court, which denied them all without explanation. No justices logged dissents, though some had earlier Thursday said they would have granted stay requests from Lee and other inmates. Lee was pronounced dead about 30 minutes later....

Several death-row inmates in Arkansas, including Lee, appealed to the U.S. Supreme Court to stay the executions, but the justices earlier Thursday night released orders denying these requests. This marked the first time Justice Neil M. Gorsuch, who joined the court earlier this month, voted to create a conservative majority. In one of the orders, the court was split 5-4, with Gorsuch joining the majority in denying the stay and the court’s four liberal members saying they would have granted it.

Justice Stephen G. Breyer, who has previously questioned the “arbitrary” nature of the death penalty’s implementation, authored a critical dissent of Arkansas’ stated desire to carry out executions before its drugs expire. “I have previously noted the arbitrariness with which executions are carried out in this country,” he wrote. “And I have pointed out how the arbitrary nature of the death penalty system, as presently administered, runs contrary to the very purpose of a ‘rule of law.’ The cases now before us reinforce that point.”

The brief dissents authored by Justices Breyer and Sotomayor in one of the capital cases coming from Arkansas are available here and here.

April 21, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (21)

Thursday, April 20, 2017

Virginia Gov commutes death sentence of defendant who has claimed innocence in murder-for-hire crime

As reported in this new Washington Post piece, "Virginia Gov. Terry McAuliffe (D) has commuted the death sentence of Ivan Teleguz, a 38-year-old man who was set to be executed Tuesday in the murder-for-hire of his former girlfriend." Here is more:

Teleguz has maintained his innocence in the 2001 slaying of 20-year-old Stephanie Yvonne Sipe in Harrisonburg.  His lawyers have argued that two key witnesses have recanted their testimony, calling his guilt into question.  Multiple courts have deemed those recantations unreliable, and the man who killed Sipe has never wavered in saying that Teleguz paid him to commit the murder.

McAuliffe said Thursday that while he believes Teleguz is guilty, the sentencing phase of his trial was “terribly flawed and unfair.”  Teleguz will now serve life in prison without a chance of parole.

In their clemency petition, attorneys for Teleguz stressed that jurors were falsely told that Teleguz also was involved in a Pennsylvania murder — but that purported killing never occurred. Prosecutors pointed to testimony of that supposed crime as evidence that Teleguz “solves problems” with murder.  “The jury acted on false information,” McAuliffe said.

In making his decision, McAuliffe said he reviewed over 6,000 pages of documents, including letters from Sipe’s family.  He called her relatives before his news conference Thursday afternoon.  “My heart aches for the family of Stephanie Sipe,” he said, “but the Virginia Constitution and our sacred values of due process under law require me to act.”

McAuliffe personally opposes the death penalty, citing his Catholic faith. But this marks the first time he has commuted a death sentence.  As governor, he has presided over three executions, and at the behest of correctional officials he has pushed for more secrecy in the lethal injection process....

Teleguz’s plea for a commutation attracted high-profile support, including from billionaire Richard Branson and former Maryland governor Robert L. Ehrlich, Jr.

Investigators and Sipe’s family, however, are confident of Teleguz’s guilt.  “There's no doubt in my mind that he hired these people to kill my sister,” Sipe's sister, Jennifer Tilley, told the Harrisonburg television station WHSV last week.  “And it blows my mind, it really does, that he is still trying to fight and plead for his life.”...

The last time a Virginia governor commuted a death sentence was in 2008, when then-Gov. Timothy M. Kaine (D) stopped the execution of triple murderer Percy L. Walton. Kaine commuted Walton’s sentence to life in prison without parole, saying that Walton was mentally incompetent and that putting him to death would be unconstitutional.

Prior related post:

April 20, 2017 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

"'Clientless' Prosecutors"

The title of this post is the title of this intriguing new article authored by Russell Gold now available via SSRN. Here is the abstract:

Class counsel and prosecutors have a lot more in common than scholars realize.  Because these lawyers have to make decisions on their client’s behalf that clients would make in other contexts, they prompt substantial concerns about lawyers’ accountability to their clients.  Accordingly, there is a lot that each context can learn from the other about how to hold these lawyers accountable.  This article considers what criminal law can learn from class action law.  Its central insights are first that diffuse entities comprised largely of apathetic individuals cannot be expected to hold their lawyers accountable.  And second, to combat that accountability deficit, just as judges play an important role in holding class counsel accountable, so too should judges play an important role holding prosecutors accountable — both to their public-clients and their constitutional obligations.

In more concrete terms, this article contends that once a plea agreement has been reached, courts should substantively review the sentence that the parties recommend with an eye to the process that yielded the agreement, much as courts review class action settlements.  As with class members in class actions, courts should afford opportunities to be heard to those who wish to contest the deal to inform the court’s review.  If courts are hamstrung at sentencing by prosecutors’ charging decisions that they think inappropriate, judges should articulate their concerns and ask prosecutors to justify those decisions on the record in open court to facilitate accountability by the electorate and within prosecutor offices.

April 20, 2017 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Brennan Center releases report on "Criminal Justice in President Trump's First 100 Days"

The Brennan Center for Justice has released this big new report titled "Criminal Justice in President Trump's First 100 Days." Here is part of its "Executive Summary":

In his Inaugural Address, President Donald Trump pledged to address the rising specter of “American carnage” — “the crime and gangs and drugs that have stolen too many lives and robbed our country of so much unrealized potential.”  The last time a president addressed rising crime in his inaugural address was 1997.  Then, with crime near historic peaks (at 4,891 offenses per 100,000 people), President Bill Clinton spoke of the need to “help reclaim our streets from drugs and gangs and crime” so that “our streets will echo again with the laughter of our children, because no one will try to shoot them or sell them drugs anymore.”

Trump’s dark portrait of America, however, comes at a time when the national crime rate is near historic lows — 42 percent below what it was in 1997. As his first 100 days near an end, what has the president done to address crime and criminal justice? And what can the country expect in the weeks and months ahead?

So far, many of the administration’s actions are symbolic.  But they evidence a clear return to the discredited “tough on crime” rhetoric of the 1990s, and suggest a significant departure from the Obama administration’s approach to criminal justice.  Trump’s turn also directly contradicts the emerging consensus among conservatives, progressives, law enforcement, and researchers that the country’s incarceration rate is too high, and that our over-reliance on prison is not the best way to address crime.  As crime remains near historic lows — despite local, isolated increases — these proposed changes are, ultimately, solutions in search of a problem. Taken to an extreme, they would set back the national trans-partisan movement to end mass incarceration.

This analysis documents the following key shifts in federal policy since January 20th:

Misguided Fears of a New Crime Wave....

A New War on Drugs?...

Increased Immigration Enforcement and Detention....

Decreased Oversight of Local Police....

Increased Use of Private Prisons....

Possible Federal Sentencing or Reentry Legislation....

April 20, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (1)

Wednesday, April 19, 2017

Highlighting books that suggest how the "age of mass incarceration may actually be abating"

The quoted portion of the title of this post from the headline of this new piece by Chuck Lane in the Washington Post.  The piece serves as a kind of mini-review of the two most important recent books on mass incarceration, John Pfaff's "Locked In" and James Forman's "Locking Up Our Own".  Here are excerpts: 

“Locking Up Our Own,” a remarkable new book by Yale Law School professor and former D.C. public defender James Forman Jr., tells the poignant but neglected story of how newly enfranchised black communities coped with this dilemma as a crime wave swept through urban America in the 1980s and 1990s, driving the murder victimization rate among blacks to an astonishing high of 39.4 per 100,000 population in 1991.

African American mayors, police and prosecutors responded to the pleas of beleaguered constituents with rhetoric, and policy, that were no less “tough on crime” than that of their white counterparts.  Black leaders often framed crime-fighting as an issue of salvaging the civil rights revolution.  “What would Dr. King say?” about the violence plaguing predominantly black cities, they would ask rhetorically — and then crack down on mostly youthful offenders, which inevitably involved “locking up our own.”...

This was an era, Forman reminds us, during which activist-attorney Johnnie Cochran regularly attended rallies against drug dealing in Los Angeles, calling for PCP dealers to be punished “harshly,” and Eric Holder, then the District’s top prosecutor, supported aggressive, often pretextual police stops and searches of cars in predominantly black sections of the city, in a desperate effort to get guns off the street....

He adds historical nuance to the story of “mass incarceration” told in Ohio State University law professor Michelle Alexander’s influential 2010 book “The New Jim Crow.”  This makes Forman’s book the second important corrective this year to Alexander’s.  The first, “Locked In” by Fordham University law professor John Pfaff, deployed statistical evidence to show that the United States’ highest-in-the-industrialized world incarceration rate did not result from the war on drugs, contrary to a theme of Alexander’s book that has been repeated so often Pfaff dubs it “the Standard Story.”

Even if everyone in state and federal prison on a drug conviction were released tomorrow, the U.S. incarceration rate would still be about quadruple what it was in 1970.  That is because, Pfaff demonstrates, most people in prison are there for violent crimes such as homicide or aggravated assault.

Punishment for these offenses drove incarceration rates higher, Pfaff shows, but not, as is often supposed, because of laws imposing harsh mandatory- minimum sentences.  The key factor was discretionary prosecutorial decisions; at least from the early 1990s on, prosecutors in the nation’s 3,000-plus counties charged arrestees with felonies at a higher rate even as the crime rate itself declined.  Ultimately, more punitive exercise of prosecutorial discretion fed a steady net influx of convicts to state prisons....

The most recent evidence indicates that the age of mass incarceration is abating; it has been, oddly enough, since just prior to the publication of “The New Jim Crow.”

The Pew Charitable Trusts has reported, based on Justice Department data, that the U.S. incarceration rate declined from a peak of 1 in 100 adults in 2007 to 1 in 115 in 2015. Keith Humphreys, of Stanford University, has shown that racial disparities, though still large, may be diminishing.  The incarceration rate for blacks fell steadily between 2000 and 2014, while that of whites rose slightly.

The challenge now is to accelerate the de-incarceration trend while sustaining low levels of crime.  A troubling uptick in urban homicide last year may have helped elect President Donald “American Carnage” Trump.  Certainly his harshest, most racially tinged anti-crime rhetoric both stimulated fear and exploited it. His attorney general, Jeff Sessions, has called emphasized punishing crime rather than consent decrees against allegedly abusive local police.

Under the circumstances, Forman and Pfaff’s emphasis on local politics, and county- and state-level prosecutorial discretion, is paradoxically hopeful.  Federal policy makes headlines, but in the vast majority of cases, criminal justice takes place at the grass roots.  And in recent years, that is the level at which the most promising reform efforts have occurred.  Those efforts can and should continue, whatever might happen next in Washington.

I really like this commentary's use of the term "abating" to describe what the current decade has wrought with respect to incarceration levels. The Merriam-Webster dictionary defines abate as "to decrease in force or intensity," and that is what we are experiencing with incarceration in modern years in the United States. Incarceration continues on a mass scale in the US, but the force and intensity of our commitment to using ever more incarceration in response to social disorder has decreased.

April 19, 2017 in Data on sentencing, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

After Monday stays, Arkansas officials seemingly on path to complete next pair of scheduled executions... OR NOT, as updated below....

As reported in this new AP piece, "two Arkansas inmates set to die this week in a double execution filed more legal challenges Wednesday, but so far the pair is hitting roadblocks as a judge weighs a new attempt to prevent the state from using one of its lethal injection drugs in what would be the state's first executions in nearly a dozen years."  Here is more about the continuing litigation as the next set of execution dates approach:

Unless a court steps in, Ledell Lee and Stacey Johnson are set for execution Thursday night, and state prison officials have already moved them from death row to the nearby prison that houses the death chamber. It's the second time this week that Arkansas has moved forward with what originally had been a plan to execute eight men before April 30, when its supply of the drug midazolam expires.

On Monday, the Arkansas Supreme Court blocked the executions of two men set to die that night. A third man has received a stay from a federal judge over issues with his clemency schedule. Five inmates still face execution over the next two weeks, and they've filed a series of court challenges in hopes of stopping that.

The latest request, filed Wednesday, asks the U.S. Supreme Court to take the inmates' case that challenges the use of midazolam, a sedative used in flawed executions in other states. It's one of three drugs Arkansas plans to use in its executions. In 2015, justices upheld Oklahoma's execution protocol that used the same drug. "As pharmaceutical companies become increasingly resistant to allowing their products to be used in executions, states are likely to continue experimenting with new drugs and drug combinations, and death-row prisoners may challenge these new protocols as violating their constitutional rights," the filing before the U.S. Supreme Court said.

The Arkansas attorney general's office countered in a court filing Wednesday that the inmates' request was a last-minute effort to "manipulate the judicial process."...

Another case that could trip up Arkansas' plan was filed Tuesday by the medical supplier McKesson Corp., which says it sold the drug vecuronium bromide to the Arkansas Department of Correction for inmate medical care, not executions. The company sued to stop Arkansas from using the drug in the planned lethal injections, and a hearing over that issue was underway in Little Rock on Wednesday afternoon.

A state prison official testified that he deliberately ordered the drug last year in a way that there wouldn't be a paper trail, relying on phone calls and text messages. Arkansas Department of Correction Deputy Director Rory Griffin said he didn't keep records of the texts, but McKesson salesman Tim Jenkins did. In text messages from Jenkins' phone, which came up at Wednesday's court hearing, there is no mention that the drug would be used in executions.

Lee and Johnson both faced setbacks Tuesday in their quest to get more DNA tests on evidence in hopes of proving their innocence. Lee claims tests of blood and hair evidence that could prove he didn't beat 26-year-old Debra Reese to death during a 1993 robbery in Jacksonville. Johnson claims that advanced DNA techniques could show that he didn't kill Carol Heath, a 25-year-old mother of two, in 1993 at her southwest Arkansas apartment....

"It is understandable that the inmates are taking every step possible to avoid the sentence of the jury; however, it is the court's responsibility to administer justice and bring conclusion to litigation," Gov. Asa Hutchinson said Tuesday in an emailed statement. "It is that process that we are seeing played out day by day, and we expect it to continue."

UPDATE: This new Washington Post article, headlined "Arkansas courts stay execution, block state from using lethal injection drug," reports on why I reported too soon on the latest execution plans in Arkansas. Here are the latest details:

Arkansas courts on Wednesday dealt another pair of blows to the state’s plans to resume executions Thursday night, the latest in a series of legal rulings imperiling the scheduled flurry of lethal injections.

In one case, a state court halted an execution scheduled for Thursday night, while a state judge separately barred the use of a lethal injection drug, potentially blocking all of the planned executions.

The rulings come as Arkansas, seeking to carry out its first executions since 2005, has become the epicenter of capital punishment in the United States because of its frantic schedule. Gov. Asa Hutchinson (R) originally scheduled eight executions in 11 days, an unprecedented pace, which drew national scrutiny and criticism....

After the first planned executions were halted, Arkansas officials pointed to legal victories they won the same day and vowed to press on with them, beginning with two scheduled for Thursday night. “There are five scheduled executions remaining with nothing preventing them from occurring, but I will continue to respond to any and all legal challenges brought by the prisoners,” Arkansas Attorney General Leslie Rutledge (R) said in a statement after the U.S. Supreme Court denied her request to allow one execution to proceed Monday. “The families have waited far too long to see justice, and I will continue to make that a priority.”

Challenges to the executions are not only being brought by the inmates. McKesson, the country’s largest drug distributor, said a court on Wednesday granted its request for a temporary restraining order keeping Arkansas from using a drug the company says was obtained under false pretenses. The judge issued a verbal order from the bench, according to the Arkansas Democrat-Gazette; no injunction was filed in court records by early Wednesday night. A spokesman for Rutledge did not immediately have a comment on this order, but it is expected that she would appeal to the state Supreme Court....

The Arkansas Supreme Court also stopped one specific execution set for Thursday, saying just over 24 hours before it was scheduled to occur that it was staying it without explanation. In its order, the state Supreme Court narrowly blocked the execution of Stacey E. Johnson, 47, who has been on death row since 1994. The court said Johnson should be allowed to press on with his motion for post-conviction DNA testing. Johnson was sentenced to death for the murder of Carol Jean Heath, a woman brutally killed in her home.

Three justices dissented from the decision, with all three joining in a dissent saying the stay in this case “gives uncertainty to any case ever truly being final in the Arkansas Supreme Court.”...

Johnson is one of two inmates facing execution Thursday night. The other, Ledell Lee, has appealed his execution, arguing that he has an intellectual disability and seeking to prove his innocence. Both men are also among a group of death-row inmates who have petitioned the U.S. Supreme Court to stay the executions, one of several legal battles being waged between the state and the inmates.

April 19, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Is it really a big deal and a big problem that there are for now so many DOJ vacancies?

Because I have never worked in the Justice Department, I am really unsure whether much should be made of the facts highlighted in this recent Washington Post article about the slow pace of filling all the transition vacancies at DOJ.  The article is headlined "A month after dismissing federal prosecutors, Justice Department does not have any U.S. attorneys in place," and here are excerpts:

Attorney General Jeff Sessions is making aggressive law enforcement a top priority, directing his federal prosecutors across the country to crack down on illegal immigrants and “use every tool” they have to go after violent criminals and drug traffickers.

But the attorney general does not have a single U.S. attorney in place to lead his tough-on-crime efforts across the country.  Last month, Sessions abruptly told the dozens of remaining Obama administration U.S. attorneys to submit their resignations immediately — and none of them, or the 47 who had already left, have been replaced.

“We really need to work hard at that,” Sessions said when asked Tuesday about the vacancies as he opened a meeting with federal law enforcement officials.  The 93 unfilled U.S. attorney positions are among the hundreds of critical Trump administration jobs that remain open.

Sessions is also without the heads of his top units, including the civil rights, criminal and national security divisions, as he tries to reshape the Justice Department.... Sessions said that until he has his replacements, career acting U.S. attorneys “respond pretty well to presidential leadership.”

But former Justice Department officials say that acting U.S. attorneys do not operate with the same authority when interacting with police chiefs and other law enforcement executives.  “It’s like trying to win a baseball game without your first-string players on the field,” said former assistant attorney general Ronald Weich, who ran the Justice Department’s legislative affairs division during Obama’s first term.

“There are human beings occupying each of those seats,” Weich, now dean of the University of Baltimore School of Law, said of the interim officials. “But that’s not the same as having appointed and confirmed officials who represent the priorities of the administration. And the administration is clearly way behind in achieving that goal.”

Filling the vacancies has also been complicated by Sessions not having his second-highest-ranking official in place.  Rod J. Rosenstein, nominated for deputy attorney general — the person who runs the Justice Department day-to-day — is still not on board, although he is expected to be confirmed by the Senate this month. Traditionally, the deputy attorney general helps to select the U.S. attorneys....  Rachel Brand has been nominated for the department’s third-highest position as associate attorney general. She has also not been confirmed.

This week, the attorney general flies to Texas and California to meet with law enforcement officials about his priorities.  But, until he gets his U.S. attorneys on board, Sessions will be hampered in moving forward with new policies, former Justice Department officials say.  “An acting U.S. attorney doesn’t speak with the same authority to a police chief or to a local prosecutor as a Senate-confirmed U.S. attorney does,” said Matthew Miller, a former Justice Department spokesman in the Obama administration. “If you’re a Democrat, you’re probably happy to have these positions filled by career officials because they’re less likely to pursue some of the policies that Jeff Sessions supports. But if you’re a supporter of the president, you probably want them to move on those positions.”

I am inclined to look at this article as largely "much ado about nothing," but perhaps folks with DOJ experience will help me better understand if and how DOJ vacancies may actually be a big deal and a big problem.

April 19, 2017 in Who Sentences? | Permalink | Comments (3)

A little video on prison population flow dynamics

A helpful reader alerted me to this newly-posted video produced by SPAC, the Illinois Sentencing Policy Advisory Council.  This short animation is intended to help viewers understand how admissions and length of stay "interact and impact prison capacity flows."  As explained to me via email, the video covers a relatively simple point in a relatively simple way, but should still helps explain important prison population concepts that many people struggle to fully appreciate.

April 19, 2017 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Is Justice Kennedy or Justice Thomas really likely to retire this summer?

The question in the title of this post is promoted by this new article in The Hill headlined "Grassley: Another Supreme Court vacancy likely this summer." Here are the basic details:

Sen. Chuck Grassley is predicting that President Trump will get to nominate a second justice to the Supreme Court as early as this summer.

The Iowa Republican, chairman of the Senate Judiciary Committee, said there is a "rumored" upcoming retirement but declined to say which justice he expects to step down. "I would expect a resignation this summer," Grassley said during a Q&A with the Muscatine Journal in Iowa.

Grassley added that the president's next Supreme Court nominee would likely come off the list of roughly two dozen names Trump announced before taking over the White House....

Grassley isn't the first Republican to signal that he thinks a second justice will retire in the near future. Sen. Ted Cruz (R-Texas), who is also on the Judiciary Committee, has repeatedly predicted that he thinks Trump will get to make another nomination as soon as this summer.

"I think we're likely to see another vacancy potentially as soon as this summer. I think we'll see another vacancy either this summer or next summer," Cruz told the Chris Saucedo Show last week.

I am inclined to guess that Justice Thomas is the most likely current justice to be eager to get out of DC and give Prez Trump another quick opportunity to shape the direction of the Court, and I also think he is the justice most likely to be, perhaps indirectly, "leaking" his plans to important Senators like Cruz and Grassley. But maybe, after completing his 30th Term on the Court, Justice Kennedy is ready to move on. Time will tell, and a lot of sentencing jurisprudence could be impacted either way.

April 19, 2017 in Who Sentences? | Permalink | Comments (9)

"Upside-Down Juries"

The title of this post is the title of this intriguing new paper authored by Josh Bowers now available via SSRN. Here is the abstract:

The practical disappearance of the jury trial ranks among the most widely examined topics in American criminal justice.  But, by focusing on trial scarcity, scholars have managed to tell only part of the story.  The unexplored first-order question is whether juries even do their work well. And the answer to that question turns on the kinds of work jury members are typically required to do.  Once upon a time, trials turned upon practical reasoning and general moral blameworthiness. Modern trials have come to focus upon legal reasoning and technical guilt accuracy.  In turn, the jury has evolved from a flexible body to a rule-bound institution. But, of course, even as trials have changed, laypeople’s capacities have stayed largely the same.  Laypeople remain more skilled at the art of equitable evaluation than the science of legal analysis.

It does not follow, however, that the criminal justice system should revert to equitable trial practices.  The modern trial is professional and legalistic for good reason. The rule of law commands that criminal convictions be products of precisely drawn criminal codes and formal processes.  Nevertheless, there are other procedural stages — arrest, charge, bail, bargain, and sentence — where equitable discretion is more appropriate. These are the stages at which criminal justice should concentrate lay efforts.

In this conference essay, I describe the historical and constitutional trends that have entrenched popular participation in all the wrong places.  And I propose redirecting jury practice from criminal trials to other adjudicatory sites.  Finally, I make the case that my reforms are consistent with (and perhaps even integral to) the legality principle, properly considered.

April 19, 2017 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

SCOTUS rules against federal defendant on appeal procedures in Manrique

The Supreme Court this morning handed down an opinion on federal appellate procedure this morning in Manrique v. US, No. 15-7250 (S. Ct. April 19, 2017) (available here).  Here is how the opinion for the Court by Justice Thomas gets started:

Sentencing courts are required to impose restitution as part of the sentence for specified crimes.  But the amount to be imposed is not always known at the time of sentencing.  When that is the case, the court may enter an initial judgment imposing certain aspects of a defendant’s sentence, such as a term of imprisonment, while deferring a determination of the amount of restitution until entry of a later, amended judgment.

We must decide whether a single notice of appeal, filed between the initial judgment and the amended judgment, is sufficient to invoke appellate review of the later determined restitution amount.  We hold that it is not, at least where, as here, the Government objects to the defendant’s failure to file a notice of appeal following the amended judgment.

Justice Ginsburg, joined by Justice Sotomayor, dissents in a brief opinion that is focused on the case facts and asserts that "even assuming, arguendo, that separate appeal notices are ordinarily required, I would hold that Manrique is not barred from appealing the restitution order in the circumstances of this case."

April 19, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

SCOTUS rules 7-1 that due process precludes requiring defendant to prove innocence by clear and convincing evidence to recover assessments after invalidated conviction

The Supreme Court this morning handed down a notable due process decision in Nelson v. Colorado, No. 15–1256 (S. Ct. April 19, 2017) (available here). Here is how Justice Ginsburg's opinion for the Court gets started and concludes:

When a criminal conviction is invalidated by a reviewing court and no retrial will occur, is the State obliged to refund fees, court costs, and restitution exacted from the defendant upon, and as a consequence of, the conviction?  Our answer is yes.  Absent conviction of a crime, one is presumed innocent. Under the Colorado law before us in these cases, however, the State retains conviction-related assessments unless and until the prevailing defendant institutes a discrete civil proceeding and proves her innocence by clear and convincing evidence.  This scheme, we hold, offends the Fourteenth Amendment’s guarantee of due process....

Colorado’s scheme fails due process measurement because defendants’ interest in regaining their funds is high, the risk of erroneous deprivation of those funds under the Exoneration Act is unacceptable, and the State has shown no countervailing interests in retaining the amounts in question. To comport with due process, a State may not impose anything more than minimal procedures on the refund of exactions dependent upon a conviction subsequently invalidated.

Justice Alito concurs separately, because in his view "Medina’s historical inquiry, not Mathews [the modern due process balancing test applied by the majority], provides the proper framework for use in these cases." Justice Alito's extended opinion provides a distinct account of the problem with Colorado's procedures.

Justice Thomas dissents in an opinion that is founded on the view that "petitioners have not demonstrated that defendants whose convictions have been reversed possess a substantive entitlement, under either state law or the Constitution, to recover money they paid to the State pursuant to their convictions. "

April 19, 2017 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Tuesday, April 18, 2017

Lies, damned lies, and competing crime statistics from AG Sessions and the Brennan Center

My news feed today brought me to two notable pieces that emphasized modern crime realities in two notably different ways:

The scary crime story comes via this USA Today op-ed authored by Attorney General Jeff Sessions, which begins with this sharp sentence: "Violent crime is surging in American cities."  AG Sessions goes on to say this about current crime realities with a piece focused mostly on policing practices:

In Chicago, arrests have fallen 36% since 2014 to the lowest level in at least 16 years.  Last year, they fell in every major crime category, and they fell in every single district in the city.  To put that in perspective, out of more than 500 non-fatal shootings in early 2016, only seven resulted in any sort of arrest.  That’s 1%. Not surprisingly, as arrest rates plummeted in those years, the murder rate nearly doubled. Meanwhile in Baltimore, while arrests have fallen 45% in the past two years, homicides have risen 78%, and shootings have more than doubled.

Yet amid this plague of violence, too much focus has been placed on a small number of police who are bad actors rather than on criminals.  And too many people believe the solution is to impose consent decrees that discourage the proactive policing that keeps our cities safe....  When proactive policing declines and violent crime rises, minority communities get hit the hardest.  We will not sign consent decrees for political expediency that will cost more lives by handcuffing the police instead of the criminals. Every neighborhood needs to be safe and peaceful.

Our first priority must be to save lives, restore public safety, and bring back the community policing that we know works.  To help achieve those goals, the department, with the help of our federal, state and local law enforcement partners, will focus our efforts on thwarting violent crime, drug trafficking, and gun crime and gang violence.  If combating violent crime and restoring public safety are seen as dramatic reversals, then I fully support such a sea change.

The much more encouraging crime story comes via this new Brennan Center analysis of "Crime Trends: 1990-2016," which is promoted with this reassuring first phrase: "Crime rates have dropped dramatically and remain near historic lows." The Brennan Center analysis goes on to provide these "key findings" of modern crime realities in its executive summary:

Crime has dropped precipitously in the last quarter-century. While crime may fall in some years and rise in others, annual variations are not indicative of long-term trends. While murder rates have increased in some cities, this report finds no evidence that the hard-won public safety gains of the last two and a half decades are being reversed....

The violent crime rate also peaked in 1991 at 716 violent crimes per 100,000, and now stands at 366, about half that rate. However, the violent crime rate, like rates of murder and overall crime, has risen and fallen during this time.  For example, violent crime registered small increases in 2005 and 2006, and then resumed its downward trend.  In 2015, violent crime increased by 2.9 percent nationally and by 2.0 percent in the nation’s 30 largest cities. Preliminary data for 2016 also show a greater increase in the national violent crime rate, up 6.3 percent, and a smaller jump in the 30 largest cities, 2.4 percent. Crime is often driven by local factors, so rates in cities may differ from national averages.

From 1991 to 2016, the murder rate fell by roughly half, from 9.8 killings per 100,000 to 5.3. The murder rate rose last year by an estimated 7.8 percent. With violence at historic lows, modest increases in the murder rate may appear large in percentage terms. Similarly, murder rates in the 30 largest cities increased by 13.2 percent in 2015 and an estimated 14 percent in 2016. These increases were highly concentrated. More than half of the 2015 urban increase (51.8 percent) was caused by just three cities, Baltimore, Chicago, and Washington, D.C. And Chicago alone was responsible for 43.7 percent of the rise in urban murders in 2016....

The data demonstrate that crime rates and trends vary widely from city to city. In New York, for example, crime remains at all-time lows. Other cities, such as Washington, D.C., have seen murder rise and then fall recently, yet the rate is still lower than it was a decade ago. However, there are a small group of cities, such as Chicago, where murder remains persistently high, even by historical standards.

April 18, 2017 in National and State Crime Data, Offense Characteristics | Permalink | Comments (8)

"Cops and Pleas: Police Officers' Influence on Plea Bargaining"

The title of this post is the title of this intriguing new essay authored by Jonathan Abel appearing in the April issue of the Yale Law Journal. Here is its abstract:

Police officers play an important, though little-understood, role in plea bargaining.  This Essay examines the many ways in which prosecutors and police officers consult, collaborate, and clash with each other over plea bargaining.  Using original interviews with criminal justice officials from around the country, this Essay explores the mechanisms of police involvement in plea negotiations and the implications of this involvement for both plea bargaining and policing.  Ultimately, police influence in the arena of plea bargaining — long thought the exclusive domain of prosecutors — calls into question basic assumptions about who controls the prosecution team.

April 18, 2017 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

US District Court finds multiple constitutional problems with local banishment of sex offenders

As reported in this local article from Wisconsin, a "federal judge Monday found unconstitutional Pleasant Prairie’s initial ordinance that largely banned registered child sex offenders from residing in the village."  Here is more about the context and the US District Court's ruling:

The village amended its ordinance three months after the offenders filed suit in June 2016, but U.S. District Judge J.P. Stadtmueller ruled that did not make moot the issues the offenders raised with the first ordinance.

In granting summary judgment to the nine plaintiffs, Stadtmueller found the village imposed restrictions on where the offenders could live without considering any studies or data regarding the safety risk that posed to other residents. “The village has admitted that the ordinance was based on its own conjecture about the dangers posed by sex offenders,” Stadtmueller wrote in the 19-page order.

Village Administrator Michael Pollocoff testified in a deposition that the ordinance’s goal was to reduce the number of child sex offenders living in the village. The ordinance may be counterproductive to citizen safety, as Pollocoff admitted that turning child sex offenders into outcasts had “more deleterious (or harmful) impacts.”...

Stadtmueller rejected the village’s claim that the new ordinance made a suit challenging the old one moot, stating the plaintiffs’ claims that they suffered stress as a result of the threat posed by the initial ordinance, the fear of homelessness and the difficulties in attempting to find a new residence. The plaintiffs can pursue damages on those claims at trial, which Stadtmueller set for May 15.

Mark Weinberg, a Chicago attorney who filed the suit, called the decision uncommon and important. “There are a lot of other communities in Kenosha County with similar ordinances. I hope this decision will encourage them to re-evaluate theirs,” he said.

Weinberg has a similar suit against the city of Kenosha ordinance pending in federal court, which he said “is more restrictive” than Pleasant Prairie’s initial ordinance. That suit is still in the discovery stage, he said....

Pollocoff acknowledged that the village amended its initial ordinance in response to the suit Weinberg brought and that no sex offenders had been cited under the ordinance.

The amended ordinance lowered the 3,000-foot prohibited zone to 1,500 feet, which still makes 60 percent of the village and 75 percent of the residences off limits to offenders.

The full ruling in this case can be downloaded here:  Download Stadtmueller SJ decison Pleasant Prairie

April 18, 2017 in Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (3)

"Courts Are Using AI to Sentence Criminals. That Must Stop Now."

The title of this post is the headline of this new WIRED commentary authored by Jason Tashea. Here are excerpts:

Currently, courts and corrections departments around the US use algorithms to determine a defendant’s “risk”, which ranges from the probability that an individual will commit another crime to the likelihood a defendant will appear for his or her court date.  These algorithmic outputs inform decisions about bail, sentencing, and parole.  Each tool aspires to improve on the accuracy of human decision-making that allows for a better allocation of finite resources.

Typically, government agencies do not write their own algorithms; they buy them from private businesses.  This often means the algorithm is proprietary or “black boxed”, meaning only the owners, and to a limited degree the purchaser, can see how the software makes decisions.  Currently, there is no federal law that sets standards or requires the inspection of these tools, the way the FDA does with new drugs.

This lack of transparency has real consequences. In the case of Wisconsin v. Loomis, defendant Eric Loomis was found guilty for his role in a drive-by shooting.  During intake, Loomis answered a series of questions that were then entered into Compas, a risk-assessment tool developed by a privately held company and used by the Wisconsin Department of Corrections.  The trial judge gave Loomis a long sentence partially because of the “high risk” score the defendant received from this black box risk-assessment tool.  Loomis challenged his sentence, because he was not allowed to assess the algorithm.  Last summer, the state supreme court ruled against Loomis, reasoning that knowledge of the algorithm’s output was a sufficient level of transparency.

By keeping the algorithm hidden, Loomis leaves these tools unchecked.  This is a worrisome precedent as risk assessments evolve from algorithms that are possible to assess, like Compas, to opaque neural networks. Neural networks, a deep learning algorithm meant to act like the human brain, cannot be transparent because of their very nature. Rather than being explicitly programmed, a neural network creates connections on its own. This process is hidden and always changing, which runs the risk of limiting a judge’s ability to render a fully informed decision and defense counsel’s ability to zealously defend their clients....

[H]ow does a judge weigh the validity of a risk-assessment tool if she cannot understand its decision-making process? How could an appeals court know if the tool decided that socioeconomic factors, a constitutionally dubious input, determined a defendant’s risk to society?  Following the reasoning in Loomis, the court would have no choice but to abdicate a part of its responsibility to a hidden decision-making process.

Already, basic machine-learning techniques are being used in the justice system.  The not-far-off role of AI in our courts creates two potential paths for the criminal justice and legal communities: Either blindly allow the march of technology to go forward, or create a moratorium on the use of opaque AI in criminal justice risk assessment until there are processes and procedures in place that allow for a meaningful examination of these tools.  The legal community has never fully discussed the implications of algorithmic risk assessments.  Now, attorneys and judges are grappling with the lack of oversight and impact of these tools after their proliferation.

To hit pause and create a preventative moratorium would allow courts time to create rules governing how AI risk assessments should be examined during trial.  It will give policy makers the window to create standards and a mechanism for oversight.  Finally, it will allow educational and advocacy organizations time to teach attorneys how to handle these novel tools in court.  These steps can reinforce the rule of law and protect individual rights.

As noted in this prior post, the Loomis case is right now pending before the US Supreme Court with a pending SCOTUS request for a brief from the Acting Solicitor General concerning a possible cert grant. And here are some prior related posts on Loomis case:

April 18, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)