Friday, February 27, 2015
So many modern marijuana reform stories, so little time (but lots of space at MLP&R)
As briefly noted in a prior post, today I have been attending and participating in the first ever Tribal Marijuana Conference. In part because the conference is so well-conceived and in part because the issues are so dynamic and multi-faceted, I have learned a lot on many fronts relating both to modern tribal law and the many fascinating legal, social and political issues that modern marijuana reform necessarily raises (some event basics here via MLP&R). Though I am not able to process all the issues discussed today, let alone effectively blog about them all, I will close my work week by just linking to some recent posts now up at Marijuana Law, Policy & Reform:
NATIONAL/FEDERAL STORIES AND DEVELOPMENTS
STATE/DC STORIES AND DEVELOPMENTS
Split Connecticut Supreme Court works through Miller application issues
As reported in this local AP piece, headlined "Connecticut court tosses 100-year sentence imposed on teen," the top court in the Nutmeg State issued a notable and significant ruling on juvenile sentencing in the wake of recent SCOTUS Eighth Amendment jurisprudence. Here are the basics:
The Connecticut Supreme Court on Friday overturned a 100-year prison sentence that was imposed on a Hartford teenager in a murder case, saying juveniles cannot be treated the same as adults when being sentenced for violent crimes.
In a 5-2 ruling, justices ordered a new sentencing hearing for Ackeem Riley, who was 17 in November 2006 when he sprayed gunfire into a Hartford crowd from a passing car. Three bystanders were shot, including 16-year-old honor student Tray Davis, who died....
The Miller decision was one of three U.S. Supreme Court rulings since 2005 that “fundamentally altered the legal landscape for the sentencing of juvenile offenders to comport with the ban on cruel and unusual punishment,” Connecticut Justice Andrew McDonald wrote in the majority decision. The rulings also barred capital punishment for all juvenile offenders and prohibited life imprisonment without the possibility of parole for juveniles in non-homicide cases.
McDonald wrote in Friday’s ruling, which overturned a state Appellate Court decision, that it didn’t appear trial Judge Thomas V. O’Keefe Jr. adequately considered Riley’s age at the time of the shooting. “The court made no mention of facts in the presentence report that might reflect immaturity, impetuosity, and failure to appreciate risks and consequences,” McDonald wrote. “In the entire sentencing proceeding, only defense counsel made an oblique reference to age.”
Justices Carmen Espinoza and Peter Zarella dissented....
State lawmakers are now considering a bill that would revamp Connecticut’s juvenile sentencing rules to conform to the U.S. Supreme court rulings. A similar measure failed last year. There are about 50 Connecticut prisoners serving sentences of 50 or more years for crimes committed when they were under 18, and most are not eligible for parole. Defense lawyers say they expect more appeals involving the juvenile sentencing issue.
The extended majority ruling in Connecticut v. Riley is available at this link, and it gets started with these passages:
The defendant, Ackeem Riley, was seventeen years old when he committed homicide and nonhomicide offenses for which the trial court imposed, in the exercise of its discretion, a total effective sentence of 100 years imprisonment. The defendant has no possibility of parole before his natural life expires. In his certified appeal to this court, the defendant claims that his sentence and the procedures under which it was imposed violate Graham and Miller, and, hence, the eighth amendment....
We agree with the defendant’s Miller claim. Therefore, he is entitled to a new sentencing proceeding at which the court must consider as mitigation the defendant’s age at the time he committed the offenses and the hallmarks of adolescence that Miller deemed constitutionally significant when a juvenile offenderis subject to a potential life sentence. We decline, however, to address the defendant’s Graham claim. As we explain later in this opinion, the legislature has received a sentencing commission’s recommendations for reforms to our juvenile sentencing scheme to respond to the dictates of Graham and Miller. Therefore, in deference to the legislature’s authority over such matters and in light of the uncertainty of the defendant’s sentence upon due consideration of the Miller factors, we conclude that it is premature to determine whether it would violate the eighth amendment to preclude any possibility of release when a juvenile offender receives a life sentence.
The dissenting Riley opinion is available at this link, and it starts this way:
I disagree with the majority’s conclusion that the total effective sentence of 100 years imprisonment imposed by the trial court on the defendant, Ackeem Riley, violates the eighth amendment to the United States constitution. I agree with the Appellate Court’s conclusion that, "[b]ecause the court exercised discretion in fashioning the defendant’s sentence, and was free to consider any mitigating evidence the defendant was able to marshal, including evidence pertaining to his age and maturity"; State v. Riley, 140 Conn. App. 1, 4, 58 A.3d 304 (2013); the sentence complied with the decision of the United States Supreme Court in Miller v. Alabama, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), which held that "the [e]ighth [a]mendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." (Emphasis added.) Id., 2469. To be clear, therefore, Miller applies only to mandatory sentencing schemes. Accordingly, I respectfully dissent.
February 27, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack (0)
How might US Sentencing Commission's new Tribal Issues Advisory Group deal with marijuana law and policy?
The question in the title of this post is prompted by this notable new US Sentencing Commission press release, which was released on a day I am participating in the first ever Tribal Marijuana Conference (some background here via MLP&R). Here are excerpts from the press release:
The United States Sentencing Commission announced today the formation of a Tribal Issues Advisory Group (TIAG), which will consider methods to improve the operation of the federal sentencing guidelines as they relate to American Indian defendants, victims, and tribal communities.
The TIAG will look at whether there are disparities in how federal sentencing guidelines are applied to defendants from tribal communities or in the sentences received by such defendants as compared to similarly situated state defendants. The group will also examine whether there should be changes to the guidelines to better account for tribal court convictions or tribal court orders of protection and consider how the Commission should engage with tribal communities in an ongoing manner....
The TIAG is composed of federal appointees and at-large members. The federal judge appointees are Judge Diane Humetewa from Arizona, Judge Brian Morris from Montana, Chief Judge Ralph Erickson from North Dakota, and Chief Judge Jeffrey Viken and Judge Roberto Lange from South Dakota. The ten at-large members were selected from a broad array of applicants from across the country, and they represent a wide spectrum of tribal communities and roles in the criminal justice system. The TIAG at-large members include tribal court judges, social scientists, law enforcement officials, defense attorneys, and victims’ advocates.
“I commend the Commission for creating a mechanism to develop insights and information that have the potential to improve the lives of our citizens in Indian Country,” said Chief Judge Erickson. “I look forward to working with the distinguished members of this Group and with the Commission to rationally address longstanding sentencing issues in Indian Country.”
There are literally hundreds of tribal attendees at the tribal marijuana conference because it seems a number of tribal leaders think there is a chance that, despite federal prohibition, marijuana activity on tribal lands might "have the potential to improve the lives of our citizens in Indian Country." Of course, this new USSC advisory group has more than enough challenging issues to consider without getting into marijuana law and policy matters. But, especially because typically only the feds have full criminal jurisdiction in tribal lands, I think it will unavoidable for TIAG to discuss marijuana enforcement issues if (and when?) a number of tribes jump into the marijuana industry in the weeks and months ahead.
February 27, 2015 in Federal Sentencing Guidelines, Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack (0)
"A Second Chance: Education's Role in Reversing Mass Incarceration"
The title of this post is the headline of this notable new Atlantic commentary by Irwin Weathersby. Here is how it starts:
The American Journal of Men’s Health published a study this month titled "I Want a Second Chance" that explores the challenges faced by formerly incarcerated men as they seek to redeem themselves in the eyes of their children and society. The research questions of the study sought to illustrate the unique circumstances of African American men: "What are the daily experiences of reentry for African American men? What identities are African American men in reentry negotiating? What are the experiences of fatherhood for African American men in reentry? What are the experiences of their participation in a reentry program? The findings of the focus group featured in the study reveal a collective desire to provide for themselves and to be looked upon with dignity so that their lives can regain value. At the core of what they want most is simply to be regarded differently. As an educator who has worked closely with this population, I am convinced that their desires can be achieved through education: Formerly incarcerated men must learn to embrace methods of self-improvement, and Americans must learn to empathize and restore their citizenship.
Imagine the impact of this not-so-radical idea — if our American gaze of formerly incarcerated black men was altered — at a time when this country is fractured among race and class lines that are as bright and conspicuous as new scars. Just this month another politician has become embroiled in controversy after an off-color portrait of the president; another unarmed black man was killed at the hands of a police officer; another wrongfully convicted black man was awarded millions of dollars in retribution after his sentence was vacated; another black man’s family was awarded millions of dollars in a settlement for his wrongful death while incarcerated; another formerly incarcerated black man was likely denied a job due to the 50-percent decrease in callback rate for applicants with criminal records. Another day of Black History month has borne witness to our persistent troubles.
According to an article written by Amy L. Solomon and published by the National Institute of Justice, an estimated 13 million people in the U.S. are admitted to and released from local jails. And more than 700,000 people are admitted to and released from state and local prisons each year, with men accounting for more than three-fourths of those arrested. The numbers are even more staggering for African Americans, who comprise almost 40 percent of the entire prison population. But even more troubling is the fact that, on any given day, one in 15 black men are in prison. And among young African American men — those ages 20 through 34 — the ratio lowers further to one in nine. "In fact, young, male African American high-school dropouts have higher odds of being in jail than being employed," Solomon reports. These shameful statistics suggest that creating channels of reentry are imperative.
February 27, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (2) | TrackBack (0)
AG nominee Loretta Lynch one step closer to confirmation
As reported in this Politico piece, "Loretta Lynch cleared a key vote in the Senate Judiciary Committee on Thursday in her bid to become the nation’s next attorney general, picking up support from three Republicans on the panel in favor of her confirmation." Here are the details:
The vote was 12-8. The three Republicans who backed her nomination, along with all committee Democrats, were Orrin Hatch of Utah, Lindsey Graham of South Carolina and Jeff Flake of Arizona.
The next battle is on the Senate floor, where the federal prosecutor from Brooklyn is still expected to have enough GOP backing to be confirmed. But the controversy over President Barack Obama’s executive actions on immigration have overshadowed her nomination — particularly after her confirmation hearing last month, where she testified that those unilateral moves are legal.
Most GOP senators on the committee stressed that they could not support someone to be the nation’s chief law enforcement official who believes that the executive actions — which Republicans uniformly oppose and say are unconstitutional — are legal....
The committee’s chairman, Sen. Chuck Grassley (R-Iowa), announced Thursday that he would oppose Lynch because he believes she would not be sufficiently independent from Obama and the administration’s policies. “I remain unconvinced she will lead the [Department of Justice] in a different direction,” he said. “Now, I’m confident that if she had demonstrated a little more independence from the president, she would’ve garnered a lot of support today.”
Democrats, meanwhile, have long demanded that the controversy over Obama’s executive actions — which could stop deportations for more than 4 million immigrants here illegally and grant them work permits — stay out of the attorney general battle. “Loretta Lynch, a supremely qualified nominee for a vital national security and law enforcement post, should never have been pulled into the fray” over immigration, Sen. Chuck Schumer (D-N.Y.) said....
Sen. Dick Durbin (D-Ill.) invoked the issue of race and gender in regard to the nomination of Lynch, who would be the first black female attorney general if confirmed. He noted that near the 50th anniversary of the civil rights march in Selma, Alabama, it was “fundamentally unfair” to reject Lynch because she agrees with Obama’s immigration policies.
That drew the ire of Republicans. Hatch, who has said for weeks that he would support Lynch, said Democrats’ insinuation of a so-called double standard on her nomination was an “offensive and patently false innuendo.”
Thursday, February 26, 2015
Encouraging recidivism realities after three-strikes reform in California
This new New York Times article, headlined "California Convicts Are Out of Prison After Third Strike, and Staying Out," reports on some good post-sentencing-reform news from the West Coast. Here are excerpts:
Mr. Taylor, 58, is one of more than 2,000 former inmates who were serving life terms under California’s three-strikes law, but who were freed early after voters scaled it back in 2012. Under the original law, repeat offenders received life sentences, with no possibility of parole for at least 25 years, even if the third felony was as minor as shoplifting....
Formerly branded career criminals, those released over the last two years have returned to crime at a remarkably low rate — partly because they had aged in prison, experts say, and because participation in crime declines steadily after age 25, but also because of the intense practical aid and counseling many have received. And California’s experience with the release of these inmates provides one way forward as the country considers how to reduce incarceration without increasing crime.
“I hope the enduring lesson is that all of these people are not hopeless recidivists,” said Michael Romano, director of the Three Strikes Project at Stanford Law School, which provides legal aid to prisoners and training to public defenders. “Those who remain dangerous should be kept behind bars,” added Mr. Romano, who was an author of the 2012 revisions. “But there are many people in prison who are no threat to public safety.”...
In 2012, with crime down and prisons overflowing, California voters had second thoughts. Proposition 36 held that many prisoners whose third offenses were not violent or serious would be eligible for resentencing, so long as a judge did not find an “unreasonable risk of danger to public safety.”
Of about 9,000 prisoners who had been sentenced under the three-strikes law, about 3,000 qualified for a rehearing; another 6,000, with more violent records, did not. As of late February, 2,008 inmates had been released for time served, and 92 were serving out reduced sentences. More than 700 cases remain to be adjudicated.Judges ruled against just 132 of the eligible inmates.
After being free for an average of more than 18 months, just 4.7 percent of the former life prisoners have returned to prison for new crimes, usually burglaries or drug crimes. By comparison, Mr. Romano calculates based on state data, of all inmates released from California prisons, about 45 percent return for new crimes over a similar period.
February 26, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack (0)
US Sentencing Commission releases report on LWOP sentences in federal system
I am intrigued and pleased to see that today the US Sentencing Commission has released this effective (reader-friendly) new report titled "Life Sentences in the Federal System." The entire 20-page report is a must read for anyone (like me) who fears we pay too much attention to much attention to a handful of death sentences and too little attention to hundreds of LWOP sentences. Here is how this new report gets started:
Life imprisonment sentences are rare in the federal criminal justice system. Virtually all offenders convicted of a federal crime are released from prison eventually and return to society or, in the case of illegal aliens, are deported to their country of origin. Yet in fiscal year 2013 federal judges imposed a sentence of life imprisonment without parole on 153 offenders. Another 168 offenders received a sentence of a specific term of years that was so long it had the practical effect of being a life sentence. Although together these offenders represent only 0.4 percent of all offenders sentenced that year, this type of sentence sets them apart from the rest of the offender population. This report examines life sentences in the federal system and the offenders on whom this punishment is imposed.
There are numerous federal criminal statutes that authorize a life imprisonment sentence to be imposed as the maximum sentence. The most commonly used of these statutes involve drug trafficking, racketeering, and firearms crimes. Additionally, there are at least 45 statutes that require a life sentence to be imposed as the minimum penalty. These mandatory minimum penalties generally are required in cases involving the killing of a federal official or other government employee, piracy, or repeat offenses involving drug trafficking or weapons. In fiscal year 2013, 64 of the 153 offenders who received a sentence of life imprisonment were subject to a mandatory minimum penalty requiring the court to impose that sentence.
February 26, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (0) | TrackBack (0)
"Can life in prison be worse than death" ... for Dzhokhar Tsarnaev?
The question in the title of this post is drawn from the headline of this notable Washington Post article discussing the current (and likely future) prison realities for the Boston marathon bomber. Here are excerpts:
What’s worse – being sentenced to be executed or to spend the rest of one’s life in prison?
Dzhokhar Tsarnaev’s defense team includes two attorneys famous for ensuring that the former is replaced with the latter: Judy Clarke from San Diego, who has brokered many high-profile plea deals, and her frequent litigation partner David Bruck of Virginia. During the jury selection process, which is wrapping up in Boston this week, they have focused on drawing out jurors’ views on the death penalty, and with some regularity have elicited the response that life imprisonment is the harsher of the two options while the death penalty is “the easy way out.”
These potential jurors may have a point. Tsarnaev, 21, has been in solitary confinement for a year and a half. Like a handful of other inmates in the U.S., he has also been subjected to “special administrative measures,” or SAMs, while in pretrial detention; if he is sentenced to life imprisonment, SAMs will almost certainly remain in force....
According to a Human Rights Watch report, inmates under SAMs are usually fully isolated from other prisoners. Solitary confinement usually means spending 23 hours a day alone in a cell; SAMs often mean that this cell is in a special block from which the inmate can never see or hear other prisoners, even by knocking on a wall or peering through a window.
Under SAMs, Tsarnaev can make phone calls only when allowed to do so by the prison authority, and only to immediate family members – in his case, this would include his parents, living in Dagestan, and his two sisters, living in New Jersey. He has been calling his mother once a week.... All phone calls are monitored by an FBI agent...
The same rules apply to visits and correspondence: immediate family only. Tsarnaev’s sisters have visited him – his parents have not entered the United States since he was arrested, though one or both of them may travel here for the sentencing phase of the trial. A prison employee or FBI agent is always present during the visits, which include no physical contact – meaning they talk using telephone receivers, through glass.
Tsarnaev’s communication with his lawyers is also limited by the SAMs, but not nearly to the extent that his other communication is: His lawyers can visit without restriction, they can have physical contact with him, and their communication is privileged, which means that no one else is present. If Tsarnaev is convicted and sentenced to death, these visits will continue for the many years the appeals process is likely to last....
On Wednesday, as the court continued to interview potential jurors, the Boston Bar Association issued a statement calling on the Justice Department to take the death penalty off the table and arguing that a plea agreement in exchange for a life sentence would be in the interests of justice. If a plea agreement were to happen, Tsarnaev would stay alone in his cell, under SAMs: He could never have physical contact or a private conversation with anyone except a prison guard for the rest of his life.
Some prior related posts:
- "Balancing the State and Federal Roles in Boston Bomber Case"
- Does Boston bombing provide still more support for my federal-only death penalty perspective?
- How can/will Boston bombings victims reasonably "confer" with prosecutors and be "reasonably heard" in proceedings?
- "Boston Bombing Suspect Is Indicted on 30 Counts"
- Will a jury get a chance to embrace or reject death penalty in Boston bombing case?
- "Death penalty for Boston bomber a complicated question"
- Gearing up (finally) for start of capital trial of Boston Marathon bomber
Wednesday, February 25, 2015
Passage of Smarter Sentencing Act is reportedly "very important" to Prez Obama
This notable new USA Today piece, headlined "Bipartisan sentencing bill gets White House support," reports that President Obama indicated at a meeting yesterday with congressional leaders that he was interested and eager to have the Smarter Sentencing Act become law. Here are the details:
President Obama is throwing his support behind a bipartisan proposal to change the nation's sentencing laws by cutting many mandatory minimum sentences in half. That commitment came out of a meeting with 16 members of Congress at the White House Tuesday night, called by the president to gather their ideas on how to overhaul the criminal justice system.
Members of Congress who attended said the main topic of conversation was the Smarter Sentencing Act, a bill sponsored by Rep. Raul Labrador, R-Idaho, that would reduce mandatory minimum sentences for non-violent drug offenders.
Obama supported a similar bill in the last Congress, but the current proposal goes even further. Mandatory life sentences would be reduced to 20 years — effectively cutting life sentences in half because the current life sentence averages 40 years.
Another change: Those convicted of importing drugs into the United States would not be eligible for the reduced sentences unless they were merely couriers whose role was limited to transporting or storing drugs or money.
Sen. Mike Lee, R-Utah, who has introduced a companion bill in the Senate, said Obama "focused specifically" on the Smarter Sentencing Act "and his desire to have it passed."
"It was showing us that this is very important to him, and he has the resources of his administration that he's been willing to put out there," Lee told KSL Radio in Salt Lake City Wednesday.
White House spokesman Frank Benenati said Wednesday that the White House is still reviewing the text of the legislation, but that "it certainly appears" that the Labrador proposal meshes with the president's aims to "make our communities safer, treat individuals more justly and allow more efficient use of enforcement resources."
Obama has signaled his support for sentencing changes as recently as Monday, when he praised governors who had signed similar bills at a White House dinner. "Last year was the first time in 40 years that the federal incarceration rate and the crime rate went down at the same time," Obama said. "Let's keep that progress going, and reform our criminal justice system in ways that protect our citizens and serves us all."
Labrador said that's an important point for Obama to make. "The main obstacle is the perception that sentencing reform will lead to more crime. And I think the opposite is true," he said. "The concern is that we want to continue to be tough on crime, but we want to be smart on crime."...
House Judiciary Chairman Bob Goodlatte, R-Va., who also attended the meeting with Obama, would not comment on the meeting. He's been cool to sentencing changes in the past, but Sen. Cory Booker, D-N.J., said he thought Goodlatte seemed "remarkably open" to the issue.
"Rape in the American Prison"
The title of this post is the title of this lengthy new Atlantic article about a part of the subjective experience of imprisonment for all too many prisoners despite notable efforts by Congress to address the problem of prison rape. Here are excerpts:
In 2003, ... Congress passed the Prison Rape Elimination Act, now usually known as PREA. It was intended to make experiences [of rape in prison] far less likely. But like many ambitious pieces of legislation, its promise has proved difficult to realize. The law required studies of the problem that took far longer than initially intended, and adoption of the guidelines they produced has been painfully slow, resting on the competence and dedication of particular employees. PREA has not been a complete failure, but it is also far from delivering on its promise....
Reports about prison rape by advocacy groups led to occasional efforts by federal lawmakers to address the problem. None of those initiatives gained any wide support until 2001, when Human Rights Watch released “No Escape: Male Rape in U.S. Prisons,” which focused less on perpetrators than on failures by correctional staff and policies to prevent rape. The report included harrowing first-person accounts. “The opposite of compassion is not hatred,” wrote one Florida prisoner, describing the violence he’d endured. “It’s indifference.” The revelations brought together liberal human rights activists, government-distrustful libertarians, and Christian conservatives. PREA was passed unanimously....
After PREA passed in 2003, the bipartisan commission announced it would obtain data on prison rape, write a report, and recommend a set of policy proposals “after two years.” The complexity and scope of the problem proved daunting, and it took nearly six; the report was released in 2009.
The next stop was Attorney General Eric Holder’s Department of Justice, which spent three years (two more than they had initially planned) deliberating over the law and translating its recommendations into final standards....
PREA specifically barred the commission from recommending standards “that would impose substantial additional costs” for prison administrators, and many told the commission that placing youth who were convicted as adults in their own facilities would be impossibly expensive. “We must house adolescents and adults separately,” Martin Horn, head of the New York City Department of Correction, said at a 2006 hearing in Miami. “This takes time, this takes staff, and this takes money. And you must ask Congress to provide it.”
Today, states only have to promise that they’re working to comply with PREA’s many requirements, including the separation of youth under 18 from older prisoners. If they fail to do so or simply refuse to certify their compliance, as the governors of seven states have done, they stand to lose 5 percent of their grant funding from the DOJ. While most states, including Michigan, are still assuring federal authorities that they are addressing prison rape, prisoners remain at risk.
SCOTUS in Yates rejects broad interpretation of federal criminal statute via fascinating 5-4 split (with Justice Alito as swing vote)!!
I often tell students that one of many reasons I find sentencing and related criminal justice issues so fascinating is because truly hard and interesting Supreme Court cases will rarely be resolved via the traditional (and traditionally boring) political splits among the Justices. This reality is dramatically and uniquely on display this morning thanks to a ruling for a federal criminal defendant today in Yates v. United States, No. 13-7451 (S. Ct. Feb. 25, 2015) (available here). Yates has produced this remarkable and unprecedented combination of opinions and votes:
GINSBURG, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., and BREYER and SOTOMAYOR, JJ., joined. ALITO, J., filed an opinion concurring in the judgment. KAGAN, J., filed a dissenting opinion, in which SCALIA, KENNEDY, and THOMAS, JJ., joined.
Here are some money quotes from the start of the plurality opinion authored by Justice Ginsburg:
John Yates, a commercial fisherman, caught undersized red grouper in federal waters in the Gulf of Mexico. To prevent federal authorities from confirming that he had harvested undersized fish, Yates ordered a crew member to toss the suspect catch into the sea. For this offense, he was charged with, and convicted of, violating 18 U. S. C. §1519...
Yates does not contest his conviction for violating §2232(a), but he maintains that fish are not trapped within the term “tangible object,” as that term is used in §1519.
Section 1519 was enacted as part of the Sarbanes-Oxley Act of 2002, 116 Stat. 745, legislation designed to protect investors and restore trust in financial markets following the collapse of Enron Corporation. A fish is no doubt an object that is tangible; fish can be seen, caught, and handled, and a catch, as this case illustrates, is vulnerable to destruction. But it would cut §1519 loose from its financial-fraud mooring to hold that it encompasses any and all objects, whatever their size or significance, destroyed with obstructive intent. Mindful that in Sarbanes-Oxley, Congress trained its attention on corporate and accounting deception and cover-ups, we conclude that a matching construction of §1519 is in order: A tangible object captured by §1519, we hold, must be one used to record or preserve information.
And here are excerpts from the close of the dissenting opinion authored by Justice Kagan:
If none of the traditional tools of statutory interpretation can produce today’s result, then what accounts for it? The plurality offers a clue when it emphasizes the disproportionate penalties §1519 imposes if the law is read broadly. See ante, at 17–18. Section 1519, the plurality objects, would then “expose individuals to 20-year prison sentences for tampering with any physical object that might have evidentiary value in any federal investigation into any offense.” Ante, at 18. That brings to the surface the real issue: overcriminalization and excessive punishment in the U. S. Code.
Now as to this statute, I think the plurality somewhat — though only somewhat — exaggerates the matter. The plurality omits from its description of §1519 the requirement that a person act “knowingly” and with “the intent to impede, obstruct, or influence” federal law enforcement. And in highlighting §1519’s maximum penalty, the plurality glosses over the absence of any prescribed minimum. (Let’s not forget that Yates’s sentence was not 20 years, but 30 days.) Congress presumably enacts laws with high maximums and no minimums when it thinks the prohibited conduct may run the gamut from major to minor.... Most district judges, as Congress knows, will recognize differences between such cases and prosecutions like this one, and will try to make the punishment fit the crime. Still and all, I tend to think, for the reasons the plurality gives, that §1519 is a bad law— too broad and undifferentiated, with too-high maximum penalties, which give prosecutors too much leverage and sentencers too much discretion. And I’d go further: In those ways, §1519 is unfortunately not an outlier, but an emblem of a deeper pathology in the federal criminal code.
But whatever the wisdom or folly of §1519, this Court does not get to rewrite the law. “Resolution of the pros and cons of whether a statute should sweep broadly or narrowly is for Congress.” Rodgers, 466 U. S., at 484. If judges disagree with Congress’s choice, we are perfectly entitled to say so — in lectures, in law review articles, and even in dicta. But we are not entitled to replace the statute Congress enacted with an alternative of our own design.
Great stuff here (including a cite by Justice Kagan to the esteemed source pictured above). And surely not to be overlooked is the remarkable reality that Justice Alito, who has a history of almost always backing prosecutors in close cases, turned out in Yates to the be key vote (and author of the actual controlling opinion) for a federal criminal defendant.
Amazing stuff... and I hope some future law review article on Yates considers a title like "One Justice, Two Justice, Red Justice, Blue Justice: What Congress Should Learn from Dr. Seuss about Writing Statutes."
February 25, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack (0)
Prez Obama talks about criminal justice reform with members of Congress and...
This piece from The Hill, headlined "Obama meets with lawmakers on criminal justice reform," reports that talk about federal criminal justice reform is continuing among most (but not all) key federal policy-makers:
The bipartisan group of 16 lawmakers included Sen. Rand Paul (R-Ky.) and Rep. Jason Chaffetz (R-Utah), two rising Republican stars who have backed reforms meant to reduce the number of adults in prison. They were joined by Sens. Mike Lee (R-Utah) and Dick Durbin (D-Ill.), who have proposed moderate changes to the mandatory minimum sentences for some nonviolent drug crimes.
Sen. Sheldon Whitehouse (D-R.I.), the Democrat sponsoring a significant update to the nation's primary law dictating how to treat minors in custody, was also in attendance.
Notably absent from the meeting was Sen. John Cornyn (R-Texas), who along with Whitehouse is the sponsor of a major prison reform bill, and Sen. Chuck Grassley (R-Iowa), who chairs the Senate Judiciary Committee and who is backing the juvenile justice bill.
Grassley was the only top member of either the House or Senate judiciary committees not to attend. House Judiciary Committee Chair Bob Goodlatte (R-Va.) and ranking member Rep. John Conyers (D-Mich.) attended the meeting, as did Senate Judiciary Committee Ranking Member Patrick Leahy (D-Vt.).
At a time when congressional Republicans and the White House are at loggerheads over several issues, the meeting was another sign that there is some level of bipartisan agreement that changes must be made to federal criminal justice policies. But what form those reforms might takes remains in question. Some in Congress want reforms made to the mandatory minimums, while others — like Cornyn and Grassley — have expressed a preference for other prison reforms that do not change the drug sentences.
The administration has indicated that it would be open to a range of possibilities.
As long-time readers know, what I think the Obama Administration has truly "indicated" through its work on these matters for six years is that it is always eager to talk about the need for reform and never eager to spend and serious political capital on actually moving needed reforms forward. There has been serious and significant "bipartisan agreement that changes must be made to federal criminal justice policies" for nearly a decade now going back at least to when the Booker ruling invalidated important aspects of the bipartisan Sentencing Reform Act (and even before that if we focus on the crack-powder sentencing disparities).
I had long hoped that Prez Obama and others in his administration, who at least (tepidly) helped secure passage of the (tepid) Fair Sentencing Act in 2010, could and would get bolder and more proactive on criminal justice reforms once reelected. But it is now painfully clear that Prez Obama and his administration has decided that its political and policy energies and capital should always be focused much more on other (more controversial and divisive) issues like gay marriage, immigration and health care.
"Eighth Amendment Presumptions: A Constitutional Framework for Curbing Mass Incarceration"
The title of this post is the title of this notable new article by William Berry II now available via SSRN. Here is the abstract:
The Supreme Court’s conceptualization of the Eighth Amendment over the past decade has focused on narrow exceptions to the ability of the states to punish criminal offenders, excising particular punishments based on characteristics of the offender or crime. What is missing, however, is a set of broader guiding principles delineating the line between acceptable and impermissible punishments. The Court itself, in Kennedy v. Louisiana, acknowledged as much, describing the case law as “still in search of a unifying principle.” In light of this vacuum, this article proposes a new approach to the application of the Eighth Amendment.
The absence of regulation of excessive and disproportionate punishments by state legislatures over the past two decades has resulted in the largest prison population in the history of the human race. Instead of merely being a tool that merely removes a few types of offenses and offenders from the purview of state legislatures, the Eighth Amendment should also serve as a more robust guide to shape state penal practices.
To that end, this Article argues for the development of a series of Eighth Amendment presumptions — guiding principles that would govern the punishment practices of legislatures without excluding them from the conversation. Currently, the Eighth Amendment serves to identify the constitutional “exceptions” to the “rules” promulgated by the legislatures. This Article’s approach would reverse that status quo, with the Court articulating general rules and the legislatures then developing (and justifying through careful study) the exceptions to the rules. Indeed, an examination of the Court’s Eighth Amendment cases suggests this “presumptive” sentiment is already implicit in much of the thinking of the Court.
Part I of the Article briefly explains the shortcomings of the current evolving standards of decency doctrine and its devastating consequences. Part II of the Article explores the concept of presumptions, exploring how presumptions operate and demonstrating their virtues. The Article then argues in Part III for the reimagining of the Eighth Amendment as an Amendment of constitutional presumptions combining elements from the Court’s past cases with the needs arising from three decades of neglecting the decisions of legislatures. Finally, Part IV demonstrates how this conceptual framework would work in practice.
February 25, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack (0)
More notable new posts from the Collateral Consequences Resource Center
As regular readers know, I have made a habit of noting here notable posts from the Collateral Consequences Resource Center because the topics covered there are so interesting and get so little attention in the mainstream media (or many other places in the blogoshere). Here are a bunch of new posts from CCRC from recent weeks:
Tuesday, February 24, 2015
"Can prisons predict which inmates will commit more crimes?"
The question in the title of this post is part of the headline of this new lengthy AP article, which follows with the headline "States trying secretive, psychological assessments." Here are excerpts from the piece:
States are trying to reduce prison populations with secretive, new psychological assessments to predict which inmates will commit future crimes and who might be safe to release, despite serious problems and high-profile failures, an Associated Press investigation found.
These programs are part of a national, data-driven movement to drive down prison populations, reduce recidivism and save billions. They include questionnaires often with more than 100 questions about an offender's education, family, income, job status, history of moving, parents' arrest history — or whether he or she has a phone. A score is affixed to each answer and the result helps shape how the offender will be supervised in the system — or released from custody.
Used for crimes ranging from petty thievery to serial murders, these questionnaires come with their own set of risks, according to the AP's examination. Many rely on criminals to tell the truth, and jurisdictions don't always check to make sure the answers are accurate. They are used inconsistently across the country, sometimes within the same jurisdiction. The same defendant might be scored differently in the same crime.
Supporters cite some research, such as a 1987 Rand Corp. study that said the surveys accurately can predict the likelihood of repeat offenses as much as 70 percent of the time if they are used correctly. But even the Rand study, one of the seminal pieces of research on the subject, was skeptical of the surveys' overall effectiveness. It's nearly impossible to measure the surveys' impact on recidivism because they are only part of broader efforts.
Some surveys have the potential to punish people for being poor or uneducated by attaching a lower risk to those who have steady work and high levels of education. The surveys are clouded in secrecy. Some states never release the evaluations, shielding government officials from being held accountable for decisions that affect public safety.
"It is a vast improvement over the decision-making process of 20, 30 years ago when parole boards and the courts didn't have any statistical information to base their decisions on," said Adam Gelb, director of the Public Safety Performance Project at the Pew Charitable Trusts, which is working with the Justice Department to shape reforms nationally....
The Justice Department's position on the surveys is inconsistent. On one hand, the department is helping bankroll this movement by providing millions of dollars to help states develop and roll out new policies. Yet it's also putting on the brakes and is reluctant to use them for the federal prison population.
"Criminal sentences must be based on the facts, the law, the actual crimes committed, the circumstances surrounding each individual case, and the defendant's history of criminal conduct," Attorney General Eric Holder told the National Association of Criminal Defense Lawyers in August. "They should not be based on unchangeable factors that a person cannot control, or on the possibility of a future crime that has not taken place."
Cost savings, however, make these tools appealing to states. North Carolina, for instance, could save $560 million by 2017, a Justice Department report concluded. Between 2011 and 2014, the North Carolina prison population decreased by more than 3,000 people, according to the state. These reforms, including the use of risk assessments, has saved the state nearly $84 million, and it plans to route $32 million of those savings for community treatment programs.
Two notable and timely new reform reports from The Sentencing Project
Via an e-mail from The Sentencing Project (reprinted in part below), I received this summary (with links) to two notable new reports from the group:
[Here are] two new reports from The Sentencing Project documenting changes in criminal justice policy in 2014 and successful advocacy campaign strategies in conservative state environments. The reforms highlighted in these reports represent approaches that lawmakers and advocates can consider to address sentencing policy and collateral consequences at the state level.
The State of Sentencing 2014 highlights policy changes in 30 states and the District of Columbia in both the adult and juvenile justice systems, including:
Scaling back sentences for low-level drug offenses
Reducing barriers to reentry, including employment restrictions and bans on public assistance
Eliminating juvenile life without parole
State Criminal Justice Advocacy in a Conservative Environment documents successful advocacy strategies employed in campaigns in Indiana, Missouri, and Texas. In these states, advocates achieved the following reforms:
- Reduced enhanced penalties in drug-free zones in Indiana by shrinking the limit of zones from 1,000 feet to 500 feet, and eliminating all zones except those around schools and parks
- Modified Missouri’s federal lifetime ban on food stamp benefits for persons with felony drug convictions
- Closed two Texas prison facilities: the Dawson State Jail and the Mineral Wells Pre-Parole Transfer Facility
February 24, 2015 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack (0)
Tie vote ends effort to end the death penalty in Montana
As reported in this local article, headlined "House deadlocks on bill to abolish death penalty in Montana," a very red state came had a death penalty repeal bill come (surprisingly?) close to passage. Here are the details:
The state House deadlocked Monday 50-50 on a bill to abolish the death penalty in Montana, likely killing the measure for the 2015 Legislature. Rep. David “Doc” Moore, R-Missoula, the sponsor of House Bill 370, told members to “just vote your conscience” moments before the vote.
He said later that he’s undecided whether to ask the House on Tuesday to reconsider its action on HB370, saying it could be difficult to pick up a single, additional vote to force another emotional debate and vote on the floor.
Monday’s vote fell largely along party lines, with most Republicans against it — but it took three of the House’s 41 Democrats voting “no” to reject the bill, which would abolish the death penalty in Montana and substitute it with life in prison without parole. Montana has two murderers on death row.
The vote also marked the closest that death penalty opponents have come to getting a bill through the Montana House, which has blocked similar efforts for years. Bills to abolish the death penalty have been approved by the state Senate in recent legislatures, only to see them die in the House.
Supporters of the bill argued the death penalty does not act as a deterrent and costs the state millions of dollars on appeals and other prosecutorial costs. Rep. Margie MacDonald, D-Billings, also said state prison workers shouldn’t be put in the position of having to operate “the machineries of death.”...
One longtime supporter of abolishing the death penalty, Rep. Mitch Tropila, D-Great Falls, spoke as though he thought supporters had the votes to pass HB370 on Monday. “This is an historic moment in the Montana House of Representatives,” he said. “It has never voted to abolish the death penalty on second reading. This is a momentous moment, and we are on the cusp of history."...
Opponents, however, offered their own emotion-charged testimony against the measure, saying the death penalty can help prosecutors extract plea bargains out of terrible criminals and spare both the state and the victims’ families the financial and emotional cost of a trial. “How can you put a price on my emotions and what I was going through, with my family?” asked Rep. Tom Berry, R-Roundup, whose son was brutally murdered a dozen years ago. “All this bill does is reward the murderer, handicap the prosecutor … and penalize victims like me.”
Rep. Roy Hollandsworth, R-Brady, who opposed the bill, said those who want to abolish the death penalty should take it to the Montana public as a referendum — but they won’t, because they know they would lose. The public overwhelmingly supports the death penalty, he said.
Monday, February 23, 2015
"What rights do felons have over their surrendered firearms?"
The question in the title of this post is the substance of the title of this helpful SCOTUS argument preview of Henderson v. US authored by Richard Re over at SCOTUSblog. Here are excerpts which highlight why I think of Henderson as an interesting and dynamic sentencing case:
Tuesday, the Court will hear argument in Henderson v. United States, a complex case that offers a blend of criminal law, property, and remedies, with soft accents of constitutionalism. The basic question is this: when an arrested individual surrenders his firearms to the government, and his subsequent felony conviction renders him legally ineligible to possess those weapons, what happens to the guns?
The petitioner, Tony Henderson, was a Border Patrol agent convicted of distributing marijuana, a felony offense. Shortly after being arrested in 2006, Henderson surrendered his personal collection of firearms and other weapons to federal agents as a condition of release during the pendency of his criminal case. According to Henderson, his weapons collection included valuable items that had long been in the family, as well as an “antique.” Moreover, the collection was and remains Henderson’s lawful property. So, starting in 2008, Henderson asked authorities to transfer his weapons collection to someone else. But prosecutors and courts alike declined. Understandably enough, Henderson didn’t want his collection to escheat to the government like so much feudal property. So he’s pressed his rights to the Supreme Court.
The legal issues start with a conflict between a procedural rule and a federal statute. Under Federal Rule of Criminal Procedure 41, the government usually has to “return” a defendant’s lawful property. But that can’t happen in Henderson’s case because a federal criminal law (18 U.S.C. § 922(g)(1)) prohibits convicted felons, including Henderson, from possessing firearms. So if Rule 41 were allowed to operate according to its terms, Henderson would instantly be in violation of Section 922(g)(1). The courts below recognized that result as contrary to federal law and policy. (In a footnote in its merits brief, the federal government acknowledges that some of Henderson’s long-withheld weapons collection actually doesn’t consist of firearms at all. The government accordingly assures the Court that the “FBI is making the necessary arrangements to return the crossbow and the muzzle-loading rifle to petitioner.”)
To get around Section 922(g)(1), Henderson asked the government to transfer his firearms to third parties who are permitted to possess such items – specifically, either his wife or a friend who had promised to pay for them. Those proposed transfers, Henderson points out, wouldn’t result in his own possession of the firearms. And, critically, the proposed transfers would honor Henderson’s continued ownership of the weapons.... While Rule 41 by its terms may authorize only the “return” of property, Henderson argues that the federal district courts have “equitable” authority to direct transfers to third parties....
Without questioning that federal equitable authority operates in this area, the courts below apparently rejected Henderson’s transfer request in part based on the ancient rule of “unclean hands.” Under this venerable maxim, a wrongdoer (whose hands are figuratively dirty) may not seek relief at equity in connection with his own wrongful act. Based on a broad view of that precept, the courts below seemed to say that convicted felons are categorically barred from equitable relief as to their government-held property. Henderson contends that this holding revives ancient principles of “outlawry,” whereby criminals lose the protection of the law, while also running afoul of the Due Process Clause, the Takings Clause, and other constitutional provisions. However, the Solicitor General disputes that the decision below actually rested on this ground and — more importantly — has declined to defend it.
Instead, the federal government defends the result below on the ground that Section 922(g)(1) should be read to prohibit not just felons’ actual possession of firearms, but also their “constructive possession” of such weapons. On this view, impermissible constructive possession occurs when a convicted felon can exert some control over the next physical possessor of a particular item of property. Thus, Henderson would exert constructive possession – barred by federal law – if he could direct the transfer of his firearms to any particular person, including his wife or friend. Such direction, the government contends, would also create an unacceptable risk of letting the firearm find its way back to the felon. A permissible approach, in the government’s opinion, would be for it to transfer weapons to a licensed firearms dealer for sale, with proceeds going to the convicted felon.
Having gotten the federal government to endorse some remedial third-party transfers – a significant development in itself – Henderson asks why a convicted felon can’t at least nominate specific third parties, like a museum or a relative, to receive previously surrendered firearms that double as historical artifacts or family heirlooms....
While the ultimate outcome may turn in part on case-specific facts, the case touches on a number of important public debates. This becomes most obvious when the parties peripherally joust over the Second Amendment. The case has also drawn a number of amici. For instance, the Institute for Justice connects the case to public debate over forfeitures by asserting an aged canon against such forfeitures. Meanwhile, the National Association of Criminal Defense Lawyers and the National Rifle Association of America respectively argue from the Excessive Fines Clause and, of course, the Second Amendment. The Brady Center to Prevent Gun Violence, the government’s only amicus, also joins issue.
February 23, 2015 in Fines, Restitution and Other Economic Sanctions, Gun policy and sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Second Amendment issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack (0)
Oscar speech by John Legend spotlights the New Jim Crow stat about hyperincarceration of blacks in US
I watched most of last night's Oscar festivities while trying to get some work done and with most of it with a finger on the fast-forward button on the remote control. I did so, in part, because we can always count on the media (both old and new) to give extra attention to anything especially interesting or noteworthy that happens during the telecast.
I am now pleased to learn that one of the interesting and noteworthy Oscar moments getting attention today is a portion of John Legend's acceptance speech. This Washington Post WonkBlog piece, headlined "There’s a disturbing truth to John Legend’s Oscar statement about prisons and slavery," provides the story and its context:
The artists John Legend and Common received an Academy Award Sunday night for "Glory," their song in the film "Selma." In his acceptance speech, Legend called for reform of the U.S. criminal justice system. "There are more black men under correctional control today than there were under slavery in 1850," he noted.
It's true. There are some, as Politifact has written, 1.7 million black men under some form of correctional control, including probation and parole, excluding those held in local jails on any given day. That is about twice the 870,000 or so black men at least 15 years old who were enslaved in 1850, according to the Census.
In some ways, of course, the comparison is misleading. Although there are more blacks under correctional control now than there were slaves before the Civil War, the population has a whole has grown tremendously in that time. The Census that year found that roughly nine in 10 of the nation's 3.6 million blacks were enslaved. By contrast, one in 11 blacks is under correctional supervision today, according to the Pew Center on the States. And it would be wrong to obscure the horrors of slavery by comparing that peculiar institution to today's systems of probation and parole (although in modern prisons, practices such as solitary confinement are indeed profoundly damaging to inmates).
In other ways, though, these numbers conceal the size of our criminal justice system and its consequences, especially for blacks -- in a society that, unlike that of the 1850s, is supposed to be free and equitable.
SCOTUS denies review for Eighth Amendment challenge to 15-year mandatory minimum sentence for possessing shotgun shells
I am quite bummed, and more than a bit grumpy, that the Supreme Court this morning denied certiorari review via this new order list of the case of Edward Young, who is serving a "mandatory fifteen-year prison sentence for the crime of possessing seven shotgun shells in a drawer." I am bummed because, as detailed in this post, I helped file an amicus brief in support of Young's Eighth Amendment claim in the Sixth Circuit and also in support of his SCOTUS cert petition.
I am grumpy because the Supreme Court's willingness to deny review in this case, without even requiring the feds to file a brief in opposition and without any noted dissents, highlights yet again that modern Supreme Court Justices remain much more concerned with whether the worst-of-the-worst state murderers might feel some momentary pain while being executed than with whether Congress and federal prosecutors have gone to far in their application of extreme mandatory prison sentencing terms. In my amicus brief, I had these concluding sentiments about the Young case and its implications:
The essential facts of this case read like a fictional story about a totalitarian dystopian state imagined by the likes of Franz Kafka or George Orwell: after unintentionally coming into possession 18 of a handful of shotgun shells while helping his widowed neighbor — conduct which is not a crime in his home State or in the vast majority of States in our Union — Edward Young was prosecuted by federal officials using a federal law that mandated a sentencing judge to order Mr. Young to spend the next 15 years of his life locked in a cage. Disconcertingly, this nightmare tale of extreme punishment is not only true, but it has occurred in the United States of America — a country which was supposedly “conceived in liberty,” Abraham Lincoln, Gettysburg Address, and in which school children still recite their commitment to “liberty and justice for all.” Pledge of Allegiance (codified in Title 4 of the United States Code § 4)....
[I]f Mr. Young’s fifteen-year mandatory federal prison term based on his harmless possession of shotgun shells is allowed to remain in place without further review, this Court would essentially signal to Congress that it very well could constitutionally make even “overtime parking a felony punishable by life imprisonment.” Rummel v. Estelle, 445 U.S. 263, 274 n.11 (1980).
Edward Young can, and I hope will, continue to assail his prosecution and sentencing via a 2255 petition, but such actions are subject to all sorts of additional difficulties (including the absence of a right to counsel). Moreover, for me this case was not just about how Young's minor crime was treated by the feds, but whether federal judges believe that the Eighth Amendment provides any limit on the mandatory prison terms that could be imposed by federal authorities. I strongly believe the Framers thought they were doing something about extreme sentences like the one given to Edward Young when they enacted the Eighth Amendment, but it seems no modern federal judges agree with me on this front. Grrr.
Prior related posts:
- "A few shotgun shells landed a man 15 years in federal prison"
- New York Times column spotlights extreme application of ACCA in US v. Young
- Sixth Circuit to hear oral argument on extreme application of ACCA in US v. Young
- Sixth Circuit panel finds mandatory 15-year imprisonment term not grossly disproportionate for possession of shotgun shells
- Briefs seeking SCOTUS review of 15-year mandatory federal sentence for possessing shotgun shells
February 23, 2015 in Mandatory minimum sentencing statutes, Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13) | TrackBack (0)