Friday, March 23, 2018

En banc Sixth Circuit rejects, with some dubitante, effort to extend Sixth Amendment right to counsel to preindictment plea negotiations

The Sixth Circuit this morning made my pile of weekend reading a bit longer and a bit more interesting by handing down an extended en banc ruling in Turner v. United States, No. 15-6060 (6th Cir. March 23, 2018) (available here), I which a lot of judges have lots to say about the reach of the Sixth Amendment right to counsel. The opinion for the Court explains the issue and the reason the result is 10-4 in favor of the government:

Appellant John Turner asks us to overrule nearly four decades of circuit precedent holding that the Sixth Amendment right to counsel does not extend to preindictment plea negotiations.  See United States v. Moody, 206 F.3d 609, 614– 15 (6th Cir. 2000) (citing United States v. Sikora, 635 F.2d 1175 (6th Cir. 1980)).  We decline to do so.  Our rule — copied word for word from the Supreme Court’s rule — is that the Sixth Amendment right to counsel attaches only “at or after the initiation of judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Id. at 614 (quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972) (plurality opinion)); see also United States v. Gouveia, 467 U.S. 180, 188 (1984). The district court followed this rule, and we AFFIRM.

Notably, recent Trump appointee Judge Bush has a lengthy concurring opinion under the heading "DUBITANTE" which starts this way:

History sometimes reveals more import to words than they at first seem to have. And faithful adherence to the Constitution and its Amendments requires us to examine their terms as they were commonly understood when the text was adopted and ratified, rather than applying meaning derived years later that may weaken constitutional rights. This case calls for such an examination.

And the dissent authored by Judge Branch gets started this way:

The majority opinion declares itself bound by “four decades of circuit precedent holding that the Sixth Amendment right to counsel does not extend to preindictment plea negotiations,” reciting as its basis for this rule language from the 1972 Supreme Court case, Kirby v. Illinois, 406 U.S. 682, 689 (1972).  This reasoning misses the point of the case before us in several important ways.  By elevating general language to a static rule, it disregards the Supreme Court’s development across time of the law governing Sixth Amendment claims, particularly the Court’s practical recognition of the changing criminal justice system and its responsive jurisprudence extending the right to counsel to events before trial.  This reasoning also ignores the purpose of an en banc court — to determine whether existing circuit caselaw has failed to correctly understand or apply legal principles or Supreme Court precedent.  Finally and as ably explicated by Judge Bush’s historical analysis, relying on a rigid, mechanical approach closes the door to the apparent understanding of our Founders, including the authors of the Sixth Amendment, that Turner would have been recognized as an “accused.”

March 23, 2018 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

interesting (and important?) new polling data on the death penalty

Yesterday the results of a new Quinnipiac University Poll were released here, and the press release about the results start with this account of the results of questions about the death penalty (with my emphasis added):

In a simple question, American voters support the death penalty 58 - 33 percent for persons convicted of murder, according to a Quinnipiac University National Poll released today.

But when offered a choice between the death penalty or life in prison with no chance of parole, American voters choose the life option 51 - 37 percent, the first time a majority of voters backed the life without parole option since the independent Quinnipiac (KWIN-uh-pe-ack) University Poll first asked this question in 2004.

There are deep party and gender divisions as Republicans back the death penalty 59 - 29 percent. Backing the life option are Democrats 73 - 19 percent and independent voters 49 - 37 percent. Women back the life option 56 - 33 percent. Men are divided as 45 percent back the life option and 42 percent support the death penalty. American voters are more united as they oppose 71 - 21 percent, including 57 - 35 percent opposition among Republicans, imposing the death penalty for persons convicted of selling drugs that cause a lethal overdose. Voters say 75 - 20 percent that this use of the death penalty would not help stop the opioid crisis.

But voters say 64 - 31 percent that the death penalty should not be abolished nationwide. Democrats are divided as 47 percent say abolish the death penalty and 46 percent say don't abolish it. Every other listed party, gender, education, age and racial group is opposed to abolishing the death penalty.

"It's a mixed message on a question that has moral and religious implications. Voters are perhaps saying, 'Keep the death penalty, but just don't use it," said Tim Malloy, assistant director of the Quinnipiac University Poll. "Despite what President Donald Trump says, neither Democrats nor Republicans have the stomach for executing drug dealers," Malloy added.

The "mixed message" take away is obviously the right one, and it also means that both supporters and opponents of the death penalty can spin these results in any number of ways. But the result that only half of self-identified Democrats call for abolishing the death penalty strikes me as perhaps the most critical single finding and one that likely entails that the death penalty will not be abolished legislatively even in blue states in near future.

March 23, 2018 in Death Penalty Reforms | Permalink | Comments (1)

Thursday, March 22, 2018

Noting how Ohio judges and prison officials are sparring over law seeking to reduce prison readmissions

This new AP article, headlined "Judges, Ohio prison system at odds over bed reduction plan," reports on an interesting new difficulty within on-going Buckeye state efforts to reduce the prison population. Here are excerpts:

Judges and the state prison system are at odds over a new law meant to lower Ohio's inmate population by limiting the amount of time behind bars for low-level offenders who commit minor probation violations. At issue is a mandate capping the amount of time judges can send offenders to prison for violations like missing counseling appointments or committing misdemeanors.  The law enacted last year is part of a broader effort to save money and reduce crime by lowering Ohio's inmate population.  It affects inmates convicted of non-violent crimes such as drug possession, theft and fraud.

Under the law, judges can send inmates to prison for only 90 days for the least serious felony and 180 days for the next most serious.  But some judges say the law is unclear and are sending offenders to prison for longer sentences, often a year or more, according to the Department of Rehabilitation and Correction.  Judges also contend that the short sentencing caps lessen the incentive for repeat offenders to follow probation rules at all.

The state had counted on the law to decrease Ohio's inmate population by about 400 this year and as much as 1,100 next year, the prison system said.  Cynthia Mausser, the prison system's managing director of courts and community, noted that the longer such low-level offenders are "sitting in prison not becoming better people," the more time they spend "away from those pro-social programs and relationships and connections" that could help them... 

North Carolina put similar caps on certain probation violations in 2011 as part of changes to its sentencing laws. Colorado, Nevada and Tennessee have created stand-alone facilities for probation violators as alternatives to prison sentences, according to the National Conference of State Legislatures.

Ohio's prison system sent about 300 letters to judges in recent months alerting them that they went over the caps.  Prison officials don't have the authority to overrule judges, however, and so the longer sentences stayed in place. 

In southern Ohio, Robert Chambers violated his probation for a 2017 drug possession conviction in multiple ways, including admitted drug use and refusal to enter drug treatment, according to court records.  Chambers' attorney didn't return messages seeking comment.  Adams County Judge Brett Spencer finally sentenced Chambers to a year in prison, and was then singled out by the prison system for surpassing the three-month cap. "For not trying to become productive citizens, we give them a 75 percent bonus," Spencer said of the sentencing caps.

Mahoning County Judge John "Jack" Durkin said judges know it's better to focus on offenders' substance abuse problems, help them find jobs and complete their education. But at some point, especially after several violations, prison must be an option "to protect the public and punish the defendant," Durkin said.

March 22, 2018 in Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

Interesting new US Sentencing Commission analysis of possible impact of Sentencing Reform and Corrections Act of 2017

I just noticed on the US Sentencing Commission's website this recent letter from the USSC's Director of its Office of Research and Data to an analyst at the Congressional Budget Office. Here is how the letter gets started:

The Congressional Budget Office has requested the U.S. Sentencing Commission to assist it in its assessment of the budgetary impact of S. 1917, the Sentencing Reform and Corrections Act of 2017, were it to be enacted.  Enclosed with this letter is the Commission’s estimate of the impact of several sections of this bill on the sentences that would be imposed on federal offenders as well as the impact on the size of the federal prison population.

As you can see on the enclosed, the Commission has estimated the number of offenders who would be affected by each section of the bill for which an estimate was possible. Some of those sections have both prospective and retroactive impacts.  For the provisions that have both, the Commission has provided separate estimates of the number of offenders affected. The data used for this analysis was Commission data, however the retroactive analyses were based, in part, on information from the Federal Bureau of Prisons (BOP) as to offenders who were incarcerated as of October 28, 2017.

The detailed "Sentence and Prison Impact Estimate Summary" serves to confirm my long-standing belief that the corrections provisions of SRCA could and would impact many tens of thousands more prisoners than the sentencing reform provisions.  In rough particulars, the USSC analysis suggests about 7,000 current prisoners could benefit from the retroactive sentencing provisions of Title I of the SRCA, whereas over 75,000 current federal prisoners could be eligible for the corrections credits of Title II of the SRCA.  (Prospectively, according to the USSC analysis, a few thousand new offenders would benefit from the sentencing provisions of Title I of the SRCA.  And, though not discussed by the USSC, it is also likely tens of thousands of new offenders would also be able to benefit from the corrections credits of Title II of the SRCA.)

As previously reported, though the SRCA passed the Senate Judiciary Committee by a 16-5 vote last month, the White House has formally expressed support only for the prison reform components of the bill.  Senate Judiciary Chair Charles Grassley has indicated he wants to keep pushing the SRCA in its current form, but other important GOP leaders in the Senate and elsewhere seem prepared and eager only to move forward with prison reform at this time.  In light of these new USSC data, I sincerely hope Senator Grassley and lots of criminal justice reform advocates will appreciate that a huge number of current and future federal prisoners could and would benefit from enacting just the corrections piece of the SRCA.  Given widespread support for reform provisions that could have widespread impact, I hope we see some movement on the corrections front soon.  But, sadly, given an array of problematic personalities and politics, I am not optimistic.

A few prior related posts:

March 22, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Reentry and community supervision | Permalink | Comments (0)

Wednesday, March 21, 2018

"Measuring Change: From Rates of Recidivism to Markers of Desistance"

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

Reducing the incidence of crime is a primary task of the criminal justice system, and one for which it rightly should be held accountable.  The system’s success is frequently judged by the recidivism rates of those who are subject to various criminal justice interventions, from treatment programs to imprisonment.  This Article suggests that, however popular, recidivism alone is a poor metric for gauging the success of the criminal justice interventions, or of those who participate in them.  This is true primarily because recidivism is a binary measure, and behavioral change is a multi-faceted process. Accepting recidivism as a valid stand-alone metric imposes on the criminal justice system a responsibility outside its capacity, demanding that its success turn on transforming even the most serious and intractable of offenders into fully law-abiding citizens.  Instead of measuring success by simple rates of recidivism, policymakers should seek more nuanced metrics. 

One such alternative is readily-available: markers of desistance. Desistance, which in this context means the process by which individuals move from a life that is crime-involved to one that is not, is evidenced not just by whether a person re-offends at all, but also by increasing intervals between offenses and patterns of de-escalating behavior.  These easily-obtainable metrics, which are already widely relied on by criminologists, can yield more nuanced information about the degree to which criminal justice interventions correlate to positive (or negative) life change.  They also resemble more closely the ways in which other fields that address behavioral change, such as education, attempt to measure change over time.

Measuring the success of criminal justice interventions by reference to their effects on desistance would mean seeking evidence of progress, not perfection.  Such an approach would allow criminal justice agencies to be held accountable for promoting positive change without asking them to do the impossible, thereby creating new pathways by which the criminal justice system could be recognized for achieving real and measurable progress in crime reduction.

March 21, 2018 in Data on sentencing, National and State Crime Data, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (1)

Highlighting new DAs working on new sentence review efforts to address excessive punishments

This Marshall Project article, headlined "The DAs Who Want to Set the Guilty Free: ‘Sentence review units’ would revisit harsh punishments from the past," spotlights ways prosecutors are now reconsidering past prosecutorial punitiveness.  Here is an excerpt:

None of these conviction review units [created in DA offices] have undertaken the far more ambitious task of examining cases where the conviction might be sound but the punishment doesn’t fit the crime.  That would mean poking into the sentences sought by a previous generation of prosecutors whose reflexive stance, for decades, was often to seek maximum charges carrying hefty terms behind bars.  “It might open the floodgates to reviewing thousands of sentences,” said Steven A. Drizin, a law professor at Northwestern University and an expert on wrongful convictions who said he supports sentence reviews.

Despite the daunting undertaking, the idea is gaining traction.  In Philadelphia, where former civil-rights attorney and public defender Larry Krasner was recently sworn in as district attorney, staffers are making plans for a sentence review program, likely the first of its kind in the country.  Nationally, nearly two dozen newly elected prosecutors are working with an advocacy organization called Fair and Just Prosecution to implement their own sentencing-review procedures in the coming year, said Miriam Krinsky, the group’s executive director and a former longtime federal prosecutor.

Such a massive undertaking is, like many of the ambitions of this new breed of prosecutors, far easier said than done.  Normally, courts allow a prosecutor to seek re-sentencing only in limited circumstances, such as when new evidence arises or when legislators pass a new sentencing law that needs to be applied retroactively.  For example, Maryland in 2016 revised its mandatory minimum sentences, with a clause allowing judges to use those changes to reduce the time that then-current prisoners were serving.  Sometimes, a prisoner can be rewarded with a reduced sentence for cooperating in a police investigation. The compassionate release process also lets corrections agencies and courts reduce sentences retroactively, usually when the prisoner is gravely ill.  But there is no mechanism in many states for requesting a new sentence for a current inmate simply because a newly elected prosecutor says it’s in the best interest of justice....

In Philadelphia, Patricia Cummings, head of the conviction integrity unit, already has a workaround in mind.  She said a group within the DA's office focused on sentencing — which she would likely direct but that still needs staff and funding — could start by looking into first- or second-degree murder cases the office prosecuted in the past.  In Pennsylvania, a conviction on those charges automatically ends in a sentence of life in prison without parole. More than 5,000 of the state’s prisoners are currently serving these sentences, the second-highest number in the nation, and about half are from Philadelphia.  If the unit identifies a case where they believe the facts did not warrant such a harsh sentence, it would ask the trial court to throw out the original conviction and accept a guilty plea on a lesser charge of third-degree murder or manslaughter. Those charges carry much lighter sentences. “We’re still kicking this around,” said Cummings, who previously ran the conviction integrity unit in Dallas....

Another precedent can be found in Seattle, where prosecuting attorney Dan Satterberg has been giving people in prison second chances for the past decade.  He and his staff review old cases in which defendants were banished to life in prison for relatively minor crimes, often under the state’s three-strikes-you’re-out law.  They then sign onto clemency petitions for some of those prisoners.  Three of the 16 prisoners who were effectively “re-sentenced” this way have committed new crimes since getting released. But, Satterberg said, “there’s no way to avoid that other than to leave everyone in prison forever.”

“I think a prosecutor has a continuing obligation to justice, past the sentencing date,” said Satterberg. “We have to be willing to roll up our sleeves, look through the files of old cases, and really... compare them to our contemporary law and practice.”

Most states don’t have such a robust clemency system that prosecutors can use it as a kind of back-door re-sentencing program.  In Pennsylvania, for example, only eight life sentences have been shortened through commutation since 1995.  State law requires a pardons board to agree unanimously on any such decision. That means the mechanism will have to differ by state, said Krinsky, the head of the prosecutors’ group.  It may even require lobbying efforts to pass new legislation granting DAs the power to file a special motion for amending a sentence.

I am very pleased to hear of these developments, though I cannot resist noting that I urged them nearly a decade ago in at a symposium about prosecutorial discretion at Temple School of Law.  A reprinting of my remarks appear here as Encouraging (and Even Requiring) Prosecutors to be Second-Look Sentencers, 19 Temp. Pol. & Civ. Rts. L. Rev. 429 (2010). Here is part of what I said back then:

I strongly believe that modem criminal justice systems ought to incorporate formally some type of prosecutor-driven safety valve on the back-end of the system, a straightforward and relatively simple way for prosecutors to be involved in assessing and publicly noting who may be among the [many thousands of] people currently incarcerated in the United States who they now think, after taking the time to take a sound, sober, and sensible second look, can be safely released from prison and returned to freedom.

I suppose I should enjoy being old enough to see some of my old ideas become new again.

March 21, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

AG Jeff Sessions issues memo to "strongly encourage federal prosecutors ... when appropriate" to pursue "capital punishment in appropriate cases"

United States Attorney General Jeff Sessions this morning issued a short "Memo to U.S. Attorneys on the Use of Capital Punishment in Drug-Related Prosecutions." Here is the full text of this memo:

The opioid epidemic has inflicted an unprecedented toll of addiction, suffering, and death on communities throughout our nation.  Drug overdoses, including overdoses caused by the lethal substance fentanyl and its analogues, killed more than 64,000 Americans in 2016 and now rank as the leading cause of death for Americans under 50.  In the face of all of this death, we cannot continue with business as usual.

Drug traffickers, transnational criminal organizations, and violent street gangs all contribute substantially to this scourge.  To combat this deadly epidemic, federal prosecutors must consider every lawful tool at their disposal.  This includes designating an opioid coordinator in every district, fully utilizing the data analysis of the Opioid Fraud and Abuse Detection Unit, as well as using criminal and civil remedies available under federal law to hold opioid manufacturers and distributors accountable for unlawful practices.

In addition, this should also include the pursuit of capital punishment in appropriate cases.  Congress has passed several statutes that provide the Department with the ability to seek capital punishment for certain drug-related crimes.  Among these are statutes that punish certain racketeering activities (18 U.S.C. § 1959); the use of a firearm resulting in death during a drug trafficking crime (18 U.S.C. § 924(j)); murder in furtherance of a continuing criminal enterprise (21 U.S.C. § 848(e)); and dealing in extremely large quantities of drugs (18 U.S.C. § 3591(b)(1)).  I strongly encourage federal prosecutors to use these statutes, when appropriate, to aid in our continuing fight against drug trafficking and the destruction it causes in our nation.

Notwithstanding AG Sessions saying in the first paragraph of this memo that "we cannot continue with business as usual," the last paragraph of this memo strikes me not too much of a change to business as usual.  My sense has always been that the feds will pursue "capital punishment in appropriate cases," especially for intentional murders in conjunction with drug dealing.  As this DPIC page highlights, one of three modern federal executions was of Juan Raul Garza, "a marijuana distributor, [who] was sentenced to death in August 1993 in Texas for the murders of three other drug traffickers."  And the DPIC federal death penalty page also suggests as many as 14 of the 61 persons already on federal death row are there for drug-related killings.

So it seems that federal prosecutors have long used "these statutes, when appropriate, to aid in our continuing fight against drug trafficking and the destruction it causes in our nation." But I suppose it is still pretty significant for the US Attorney General to formally and expressly "strongly encourage federal prosecutors to use" various capital punishment statutes to combat our nation's drug problems.  The big practical question that follows, of course, is whether and when more federal capital prosecutions will be forthcoming and in what kinds of cases.

Prior related posts:

March 21, 2018 in Death Penalty Reforms, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (7)

Two more SCOTUS wins for criminal defendants in Ayestas and Marinello

The Supreme Court this morning released two opinions in argued criminal justice cases: Ayestas v. Davis, No. 16–6795(S. Ct. March 21, 2018) (available here) and Marinello v. United States, No. 16-1144 (S. Ct. March 21, 2018) (available here). Here are the line-ups of the votes by the Justices and the start of each opinion for the Court:

Ayestas v. Davis:

ALITO, J., delivered the opinion for a unanimous Court. SOTOMAYOR, J., filed a concurring opinion, in which GINSBURG, J., joined.

Petitioner Carlos Ayestas, who was convicted of murder and sentenced to death in a Texas court, argues that he was wrongfully denied funding for investigative services needed to prove his entitlement to federal habeas relief.  Petitioner moved for funding under 18 U. S. C. §3599(f), which makes funds available if they are “reasonably necessary,” but petitioner’s motion was denied. We hold that the lower courts applied the wrong legal standard, and we therefore vacate the judgment below and remand for further proceedings.

Marinello v. United States:

BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, GINSBURG, SOTOMAYOR, KAGAN, and GORSUCH, JJ., joined. THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined.

A clause in §7212(a) of the Internal Revenue Code makes it a felony “corruptly or by force” to “endeavo[r] to obstruct or imped[e] the due administration of this title.”26 U. S. C. §7212(a). The question here concerns the breadth of that statutory phrase. Does it cover virtually all governmental efforts to collect taxes? Or does it have a narrower scope? In our view, “due administration of [the Tax Code]” does not cover routine administrative procedures that are near-universally applied to all taxpayers, such as the ordinary processing of income tax returns. Rather, the clause as a whole refers to specific interference with targeted governmental tax-related proceedings, such as a particular investigation or audit.

A busy day means I am unlikely to have much time to obsess over these two relatively small wins for defendants, but I do have time to make a quick comment about the voting particulars. Specifically, I think it notable in Ayestas that a state capital defendant got a unanimous vote in his favor from the Court and that in Marinello, both the Chief and the newest Justices voted with the majority in favor of the defendant rather than with Justice Thomas's dissent.

March 21, 2018 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Tuesday, March 20, 2018

SCOTUS, by 5-4 vote, stays Missouri execution

As reported here by Amy Howe at SCOTUSblog, "over the objection of four justices, the Supreme Court tonight blocked Missouri from executing Russell Bucklew, who was scheduled to die tonight."  Here is more:

Bucklew was convicted for the 1996 murder of Michael Sanders, who was living at the time with Bucklew’s former girlfriend, Stephanie Ray. Bucklew kidnapped and raped Ray, and he wounded a state trooper during the shootout that preceded his capture.

Bucklew argues that allowing the state to execute him by lethal injection would violate the Eighth Amendment’s ban on cruel and unusual punishment because he suffers from a rare disease that has caused “unstable, blood-filled tumors to grow in his head, neck, and throat.”  If Bucklew has trouble breathing when the execution begins, he contends, the tumor in his throat could rupture, filling his mouth and airway with blood.  As a result, he tells the justices, his “execution will very likely be gruesome and painful far beyond the pain inherent in the process of an ordinary lethal injection.”

The U.S. Court of Appeals for the 8th Circuit rejected Bucklew’s challenge to the constitutionality of his execution, holding that he had not shown that his suggested alternative method of execution —  lethal gas —  would significantly reduce the likelihood that he would suffer unnecessarily.

Last week Bucklew filed a petition asking the Supreme Court to review that ruling, which he described as resting on “3 distinct misreadings and dangerous extensions of this Court’s” earlier decisions on lethal injection. The state filed a brief opposing review, and Bucklew has filed his reply, but the case has not yet been scheduled for consideration at one of the justices’ private conferences. Tonight’s order staves off Bucklew’s execution to allow them to consider his petition. If the justices deny the petition, the stay will automatically end and the state can go forward with his execution; if they grant it, the stay will continue until the justices rule on the merits of his case.

I am inclined to speculate that the recent execution difficulties of Alabama and Ohio may have played at least some role in the willingness of swing Justice Anthony Kennedy in joining his colleagues voting for a stay in this case.

March 20, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

"Gender Disparities in Plea Bargaining"

The title of this post is the title of this notable new article now available via SSRN authored by Carlos Berdejó.  Here is the abstract:

Across wide-ranging contexts, academic literature and the popular press have identified pervasive gender disparities favoring men over women in society.  One area in which gender disparities have conversely favored women is the criminal justice system.  Most of the empirical research examining gender disparities in criminal case outcomes has focused on judges’ sentencing decisions.  Few studies have assessed disparities in the steps leading up to a defendant’s conviction, where various actors make choices that constrain judges’ ultimate sentencing discretion.  This article addresses this gap by examining gender disparities in the plea-bargaining process.  The results presented in this article reveal significant gender disparities in this stage of the criminal justice system.

Female defendants are about twenty percent more likely than male defendants to have their principal initial charge dropped or reduced.  These gender disparities are greater in cases involving misdemeanors and low-level felonies. In cases involving serious felonies, male and female defendants achieve similar outcomes.  Defendants’ criminal histories also play a key role in mediating gender disparities.  While female defendants with no prior convictions receive charge reductions more often than male defendants with no prior convictions, male and female defendants with prior convictions are afforded similar treatment.  These patterns in gender disparities suggest that in these “low information” cases gender may be being used as a proxy for a defendant’s latent criminality and likelihood to recidivate.

Building upon these results and the existing literature documenting racial disparities in criminal case outcomes, the article explores the intersection of gender and race in determining disparities in the plea-bargaining process.  The results indicate that gender and racial disparities complement each other in a way that yields additive effects. The charge reduction rate for white female defendants is more than double that of black male defendants.  White male and black female defendants experience similar charge reduction rates, in-between those of white female and black male defendants.  Consistent with the pattern of gender disparities documented in the article, these inter-group disparities are greater in cases involving misdemeanor offenses and defendants with no prior convictions.

Prior related post:

March 20, 2018 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Highlighting the Big Apple as a source for In Justice Today

My headline is a not-so-clever attempt to set up the fact that the latest two postings at the always great In Justice Today are focused on not-so-great criminal justice realities in New York.  Here are links to the two recent pieces with excerpts (and links from original): 

"NY Gov. Cuomo’s Terrible, Horrible, No Good, Very Bad Plan to Protect Your Kids" by Guy Hamilton-Smith:

New York Governor Andrew Cuomo recently unveiled a legislative proposal packaged as part of a budget amendment to expand already onerous residency and presence restrictions for some sex offenders in New York.

The proposal expands blanket presence and residency restrictions for sex offenders who are on parole or post-release supervision by vastly increasing the number of places they cannot be near. It would outlaw the presence of some sex offenders within 1,000 feet of school grounds, “any facility or institution that offers kindergarten or pre-kindergarten instruction,” or any other place that is “used for the care or treatment” of minors. The proposal also prohibits level 2 and 3 sex offenders — those whom the state deems most at risk to re-offend — from staying at homeless shelters that serve families, even if they are no longer under supervision.

In dense urban environments like New York City, such restrictions — which make it illegal for sex offenders to merely exist in many places — are tantamount to banishment. While sex offender registries (and many of the restrictions that go along with them) have proven to be ineffective and inhumane, public defenders, experts, and advocates say that few restrictions are as ineffective and punitive as those proposed by Cuomo.

"Despite Leaders’ Progressive Promises, NYC Remains ’Marijuana Arrest Capital of the World’" by Shaun King:

In spite of committing to simply ticketing people for possession of small amounts of marijuana, last year the NYPD arrested an astounding 16,925 people for it. These were not drug lords and kingpins. These were the very low-level offenses they said they’d stop arresting people for.

Do the math. That’s 46 people a day. It’s an enormous waste of time and resources. And it’s horribly disingenuous to publicly make the claim that the arrests are coming to an end when clearly they aren’t.

This literally makes New York City “the marijuana arrest capital of the world,” according to a recent report from the Drug Policy Alliance. And a staggering 86 percent of those arrests are of men and women of color.

And let’s be clear — whites and people of color use drugs at roughly the same rate. Some studies even show that whites actually sell drugs at a higher rate, but people of color make up 86 percent of the arrests here in New York nonetheless.

This is a scandal. And Mayor Bill de Blasio and the NYPD continue to contort themselves to blame anything they can possibly think of other than institutional racism for this racial gulf in arrests and prosecutions.

De Blasio criticized the Drug Policy Alliance report, pointing out that marijuana possession arrests dropped by 37 percent between 2013 and 2016. But that doesn’t explain away the nearly 17,000 arrests last year.

NYPD Chief James P. O’Neill recently said they were making the arrests because people don’t like the smell. Really, man? How about we start arresting people for farts too? Arresting people because someone doesn’t like the smell? That’s not even a good lie.

March 20, 2018 in Collateral consequences, Offender Characteristics, Offense Characteristics, Pot Prohibition Issues, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4)

Monday, March 19, 2018

"Informed Misdemeanor Sentencing"

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

There is no such thing as a low-stakes misdemeanor. The misdemeanor sentence itself, which can range from time served to up to twelve years in some jurisdictions, is often significant.  But the collateral consequences of such a conviction can be far worse, affecting a person’s work and home lives for decades, and sometimes for the rest of their lives. As a result of misdemeanor convictions, defendants can be fired from their jobs, barred from future employment in many fields, deported, evicted from public housing together with their entire family, and refused housing by private landlords.

Under most theories of punishment, a judge at sentencing does not simply look back to the crime and its circumstances but also looks forward at the defendant’s future.  Judges imposing sentences in misdemeanor cases should focus forward much more heavily than back, and should consider the collateral effects of a misdemeanor conviction on the defendant’s future.  Viewed through that more expansive lens, and given the broad discretion of judges in misdemeanor sentencing and lack of existing guidance for that discretion, the sentencing function of judges in misdemeanor cases is in serious need of study and reform.

This Article’s goal is two-fold.  First, it contextualizes judicial responsibility for misdemeanor sentencing in the realities of the lower criminal courts, where a number of structural and systemic barriers — including violations of the right to counsel and pressures on judges to move cases along rapidly — affect but do not excuse the way judges go about sentencing.  Second, the Article calls for judges to undertake “informed misdemeanor sentencing,” which draws on principles of proportionality and parsimony in determining the just sentence in a misdemeanor case.  Accordingly, judges should explicitly acknowledge the many serious collateral consequences an individual suffers after any penal sanction, and incorporate those into the sentencing process to ensure that punishment is proportionate.  In addition, judges should bring parsimony into the sentencing process by making more use of deferred adjudication as well as expungement and related mechanisms for mitigating the unintended effects of a misdemeanor conviction.

March 19, 2018 in Collateral consequences, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Highlights from Prez Trump's tough talk about the opioid crisis and federal response

This FoxNews piece, headlined "Trump declares war on opioid abuse, calls for death penalty for traffickers, more access for treatment," provides some details on Prez Trump's comments on the opioid crisis today in New Hampshire.  Here are excerpts:

Speaking from one of the states hardest hit by the opioid epidemic, President Trump on Monday laid out a battle plan that calls for harsher sentences — and even the death penalty — for traffickers.

Trump called for expanded treatment options for victims in the Manchester, N.H., speech, but leveled most of his emphasis on beefed-up enforcement. And he heaped plenty of scorn on the people he believes are responsible for as many as 42,000 U.S. deaths per year. "These are terrible people and we have to get tough with those people," Trump said of traffickers and dealers. "This isn’t about committees... this is about winning a very tough problem."

"The ultimate penalty has to be the death penalty," Trump said, before musing, "maybe our country is not ready for that."

Trump wants Congress to pass legislation reducing the amount of drugs needed to trigger mandatory minimum sentences for traffickers who knowingly distribute certain illicit opioids. The death penalty would be pursued where appropriate under current law. Justice Department says the federal death penalty is available for several limited drug-related offenses, including violations of the "drug kingpin" provisions in federal law.

Trump reiterated an observation he has shared several times before — that a person in the U.S. can get the death penalty or life in prison for shooting one person, but that a drug dealer whose actions could lead to thousands of overdoses can spend little or no time in jail.

The president said the federal government may consider aggressive litigation against pharmaceutical companies deemed complicit in the crisis. "Whether you are a dealer or doctor or trafficker or a manufacturer, if you break the law and illegally peddle these deadly poisons, we will find you and we will arrest you and we will hold you accountable," Trump said.

Trump singled out Mexico and China as main sources of illicit opioids. A Drug Enforcement Administration report last year said: "Seizures indicated that China supplies lower volumes of high-purity fentanyl, whereas fentanyl seizures from Mexico are higher volume but lower in purity."...

Trump also announced a nationwide public awareness campaign, as well as increased research and development through public-private partnerships between the federal National Institutes of Health and pharmaceutical companies. He announced a new website,, where people can share their stories about addiction. The hope is that horror stories will scare people away from behavior that could lead to addiction. The Trump administration aims to see the number of filled opioid prescriptions cut by one-third within three years.

A third part of the plan addresses improving access to treatment and recovery programs that have proven effective. Many health professionals, relatives of those who have died of overdoses and people who have experienced addiction to opioids have been pushing for treatment to be a key component of any campaign to fight the epidemic. "Failure is not an option," the president said. "Addiction is not our future. We will liberate our country from this crisis."...

Meanwhile, Congress plans to weigh a range of bills targeted at curbing the epidemic. The bills cover everything from improving access to treatment to intercepting shipments of illicit opioids en route to the United States. "Our recommendations will be urgent and bipartisan, and they will come very quickly," said Sen. Lamar Alexander, R-Tenn., chairman of the Senate Health, Education, Labor and Pensions Committee, according to published reports.

Interestingly, though the media (and Prez Trump himself in his spoken remarks) are making much of the death penalty and other tough-on-crime pieces of the plan, this official White House accounting of the plans, described as "President Donald J. Trump’s Initiative to Stop Opioid Abuse and Reduce Drug Supply and Demand," gives significantly more attention to public health elements and actions.

Prior related posts:

March 19, 2018 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (6)

Justice Sotomayor suggests "reconsideration of other sentencing practices in the life-without-parole context"

I noted in this prior post denial of cert in the closely-watched capital case of Hidalgo v. Arizona, and Justice Breyer's statement respecting the denial of certiorari in Hidalgo was not even the most interesting such statement on this morning's SCOTUS order list.  That honor goes to Justice Sotomayor's statement respecting the denial of certiorari in Campbell v. Ohio, which suggests importing more of the Eighth Amendment's procedural protections for the death penalty to life without parole sentencing. I recommend this four-page statement in full, and here are snippets:

Because of the parallels between a sentence of death and a sentence of life imprisonment without parole, the Court has drawn on certain Eighth Amendment requirements developed in the capital sentencing context to inform the life-without-parole sentencing context....

The “correspondence” between capital punishment andlife sentences, Miller, 567 U. S., at 475, might similarly require reconsideration of other sentencing practices in the life-without-parole context. As relevant here, the Eighth Amendment demands that capital sentencing schemes ensure “measured, consistent application and fairness to the accused,” Eddings v. Oklahoma, 455 U. S. 104, 111 (1982), with the purpose of avoiding “the arbitrary or irrational imposition of the death penalty,” Parker v. Dugger, 498 U. S. 308, 321 (1991). To that aim, “this Court has repeatedly emphasized that meaningful appellate review of death sentences promotes reliability and consistency.” Clemons v. Mississippi, 494 U. S. 738, 749 (1990)...

Our Eighth Amendment jurisprudence developed in the capital context calls into question whether a defendant should be condemned to die in prison without an appellate court having passed on whether that determination properly took account of his circumstances, was imposed as a result of bias, or was otherwise imposed in a “freakish manner.”  And our jurisprudence questions whether it is permissible that Campbell must now spend the rest of his days in prison without ever having had the opportunity to challenge why his trial judge chose the irrevocability of life without parole overthe hope of freedom after 20, 25, or 30 years.

March 19, 2018 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Three Justices join Justice Breyer questioning how Arizona's death penalty system operates

Many month ago, as highlighted here, the cert petition in Hidalgo v. Arizona generated considerable attention.  That matter ended today when the petition for a writ of certiorari was denied, along with this lengthy statement by Justice Breyer joined by Justices Ginsburg, Sotomayor and Kagan. I was expecting some Justices to say something really notable after all this build up, by the statement ends this way:

Although, in my view, the Arizona Supreme Court misapplied our precedent, I agree with the Court’s decision today to deny certiorari. In support of his Eighth Amendment challenge, the petitioner points to empirical evidence about Arizona’s capital sentence system that suggests about 98% of first-degree murder defendants in Arizona were eligible for the death penalty.  That evidence is unrebutted. It points to a possible constitutional problem.  And it was assumed to be true by the state courts below. Evidence of this kind warrants careful attention and evaluation. However, in this case, the opportunity to develop the record through an evidentiary hearing was denied. As a result, the record as it has come to us is limited and largely unexamined by experts and the courtsbelow in the first instance. We do not have evidence, for instance, as to the nature of the 866 cases (perhaps they implicate only a small number of aggravating factors).  Nor has it been fully explained whether and to what extent an empirical study would be relevant to resolving the constitutional question presented.  Capital defendantsmay have the opportunity to fully develop a record with the kind of empirical evidence that the petitioner points to here. And the issue presented in this petition will be better suited for certiorari with such a record.


March 19, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

"Legal Punishment and Free Will: An Epistemic Argument Against Retributivism"

The title of this post is the title of this new paper authored by Gregg Caruso recently posted to SSRN. Here is its abstract:

Within the United States, one of the most prominent justifications for legal punishment is retributivism.  This retributivist justification for punishment maintains that punishment of a wrongdoer is justified for the reason that she deserves something bad to happen to her just because she has knowingly done wrong — this could include pain, deprivation, or death.  For the retributivist, it is the basic desert attached to the criminal’s immoral action alone that provides the justification for punishment.  This means that the retributivist position is not reducible to consequentialist considerations nor in justifying punishment does it appeal to wider goods such as the safety of society or the moral improvement of those being punished.  A number of sentencing guidelines in the U.S. have adopted desert as their distributive principle, and it is increasingly given deference in the “purposes” section of state criminal codes, where it can be the guiding principle in the interpretation and application of the code’s provisions.  Indeed, the American Law Institute recently revised the Model Penal Code so as to set desert as the official dominate principle for sentencing.  And courts have identified desert as the guiding principle in a variety of contexts, as with the Supreme Court’s enthroning retributivism as the “primary justification for the death penalty.”

While retributivism provides one of the main sources of justification for punishment within the criminal justice system, there are good philosophical and practical reasons for rejecting it.  One such reason is that it is unclear that agents truly deserve to suffer for the wrongs they have done in the sense required by retributivism.  In Section 1, I explore the retributivist justification of punishment and explain why it is inconsistent with free will skepticism.  In Section 2, I then argue that even if one is not convinced by the arguments for free will skepticism, there remains a strong epistemic argument against causing harm on retributivist grounds that undermines both libertarian and compatibilist attempts to justify it.  I maintain that this argument provides sufficient reason for rejecting the retributive justification of legal punishment.  I conclude in Section 3 by briefly sketching my public health-quarantine model, a non-retributive alternative for addressing criminal behavior that draws on the public health framework and prioritizes prevention and social justice.  I argue that the model is not only consistent with free will skepticism and the epistemic argument against retributivism, it also provides the most justified, humane, and effective way of dealing with criminal behavior.

March 19, 2018 in Purposes of Punishment and Sentencing | Permalink | Comments (0)

Sunday, March 18, 2018

Prez Trump reportedly to call for more capital cases under current federal laws, but not seeking new death penalty laws

Ever since Prez Trump starting talking up his affinity for using the death penalty for drug dealers, I have been wondering if he was planning to call for Congress to develop new capital statutes to help pursue that end.  But, according to this new Wall Street Journal piece, a big speech coming from Prez Trump on Monday will only call for more capital cases to be brought under existing federal criminal laws.  The WSJ piece carries this full on-line headline "Trump’s Opioid Battle Plan Includes Seeking More Death-Penalty Prosecutions: The president will ask the Justice Department to press more cases against drug traffickers under current law."  Here are highlights:

President Donald Trump on Monday will call for new steps to combat the opioid epidemic, including a push to reduce opioid prescriptions by a third over three years, asking the Justice Department to seek more death-penalty cases against drug traffickers under current law, and for federal support to expand the availability of overdose-reversal medication.

The proposals will come in a speech in the hard-hit state of New Hampshire. They form part of a broader blueprint by Mr. Trump, which senior White House officials on Sunday described as seeking to deploy education, law enforcement and treatment to try to reverse abuse of particularly addictive drugs that claim the lives of more than 100 people a day in the U.S.

Other elements of the strategy, the White House said, would include a fresh public-awareness campaign about drug abuse, a research-and-development partnership between the National Institutes of Health and pharmaceutical companies into opioid prescription alternatives, tougher sentences for fentanyl traffickers, and screening of all prison inmates for opioid addiction.

But it is the death penalty proposal that is likely to dominate discussion of the package.  “The Department of Justice will seek the death penalty against drug traffickers when it’s appropriate under current law,” said Andrew Bremberg, the president’s top domestic-policy adviser.

Senior White House officials referred specific questions about the death-penalty stance to the Justice Department but emphasized that the administration was seeking to use current law rather than call for a new federal statute.

A 1988 federal law imposes the death penalty on drug “kingpins” who commit murder in the course of their business.  Some legal analysts say that it has resulted in dozens of sentences but few executions since then.  John Blume, a law professor at Cornell Law School and director of its death-penalty project, said the statute as enforced to date typically has ensnared “mid- to low-level drug dealers…None of them were really objectively the people they said they were going to get.”...

In November, a presidential commission headed by Mr. Trump’s one-time political rival for the Republican presidential nomination, former Gov. Chris Christie of New Jersey, issued a 56-recommendation report that included calls for the federal government to set up drug courts across the U.S., retrain medical prescribers on opioid use and reduce incentives for doctors to offer the powerful painkillers. It also called for engaging with states to expand access to naloxone, an overdose-reversal drug. The administration accepts all 56 recommendations, a senior White House official said Sunday.

At a brief appearance at a White House summit on opioids earlier this month, Mr. Trump openly mused that other countries allow the death penalty for drug trafficking and that he believed they had less of a drug problem as a result. He said that translated into a need for more “strength.” He offered few further details, saying only that he also wanted to see the federal government bring legal action against opioid manufacturers, because “if the states are doing it, why isn’t the federal government doing it?”

Such remarks had sparked speculation that Mr. Trump would seek a new death penalty for drug trafficking, and with it, a revived debate about the permissibility of such laws under the constitutional amendment prohibiting cruel and unusual punishment. The Supreme Court has rejected capital punishment for crimes such as child rape in recent years and has taken a narrower view of arguments that seek to execute people for indirectly causing deaths through criminal actions.

Prior related posts:

March 18, 2018 in Criminal justice in the Trump Administration, Death Penalty Reforms, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (1)

Saturday, March 17, 2018

"Mass Incarceration: The Whole Pie 2018"

Pie2018The Prison Policy Initiative has an updated version of its terrific incarceration "pie" graphic and report now at this link. Here is part of the report's introductory text and subsequent discussion:

Can it really be true that most people in jail are being held before trial? And how much of mass incarceration is a result of the war on drugs? These questions are harder to answer than you might think, because our country’s systems of confinement are so fragmented. The various government agencies involved in the justice system collect a lot of critical data, but it is not designed to help policymakers or the public understand what’s going on. Meaningful criminal justice reform that reduces the massive scale of incarceration, however, requires that we start with the big picture.

This report offers some much needed clarity by piecing together this country’s disparate systems of confinement. The American criminal justice system holds almost 2.3 million people in 1,719 state prisons, 102 federal prisons, 1,852 juvenile correctional facilities, 3,163 local jails, and 80 Indian Country jails as well as in military prisons, immigration detention facilities, civil commitment centers, state psychiatric hospitals, and prisons in the U.S. territories. And we go deeper to provide further detail on why people are locked up in all of those different types of facilities.

This big-picture view allows us to focus on the most important drivers of mass incarceration and identify important, but often ignored, systems of confinement. The detailed views bring these overlooked parts of the “pie” to light, from immigration detention to civil commitment and youth confinement. In particular, local jails often receive short shrift in larger discussions about criminal justice, but they play a critical role as “incarceration’s front door” and have a far greater impact than the daily number suggests.

While this pie chart provides a comprehensive snapshot of our correctional system, the graphic does not capture the enormous churn in and out of our correctional facilities and the far larger universe of people whose lives are affected by the criminal justice system. Every year, 626,000 people walk out of prison gates, but people go to jail 10.6 million times each year. Jail churn is particularly high because most people in jails have not been convicted. Some have just been arrested and will make bail in the next few hours or days, and others are too poor to make bail and must remain behind bars until their trial. Only a small number (150,000 on any given day) have been convicted, generally serving misdemeanors sentences under a year.

With a sense of the big picture, a common follow-up question might be: how many people are locked up for a drug offense? We know that almost half a million people are locked up because of a drug offense. The data confirms that nonviolent drug convictions are a defining characteristic of the federal prison system, but play only a supporting role at the state and local levels. While most people in state and local facilities are not locked up for drug offenses, most states’ continued practice of arresting people for drug possession destabilizes individual lives and communities. Drug arrests give residents of over-policed communities criminal records, which then reduce employment prospects and increase the likelihood of longer sentences for any future offenses....

While this “whole pie” provides the most inclusive view of the various systems of confinement in the U.S. justice system available, these snapshots can’t capture all of the important systemic issues. Once we have wrapped our minds around the “whole pie” of mass incarceration, for example, we should zoom out and note that being locked up is just one piece of the larger pie of correctional control. There are another 840,000 people on parole and a staggering 3.7 million people on probation. Particularly given the often onerous conditions of probation, policymakers should be cautious of “alternatives to incarceration” that can easily widen the net of criminalization to people who are not a threat to public safety.

Beyond identifying the parts of the criminal justice system that impact the most people, we should also focus on who is most impacted and who is left behind by policy change. For example, people of color are dramatically overrepresented in the nation’s prisons and jails. These racial disparities are particularly stark for Blacks, who make up 40% of the incarcerated population despite representing only 13% of U.S residents. Gender disparities matter too: rates of incarceration have grown even faster for women than for men. As policymakers continue to push for reforms that reduce incarceration, they should avoid changes that will widen disparities, as has happened with juvenile confinement and with women in state prisons....

[A]rmed with the big picture of how many people are locked up in the United States, where, and why, we have a better foundation for the long overdue conversation about criminal justice reform. For example, the data makes it clear that ending the War on Drugs will not alone end mass incarceration, but that the federal government and some states have effectively reduced their incarcerated populations by turning to drug policy reform. Looking at the “whole pie” also opens up other conversations about where we should focus our energies:

  • What is the role of the federal government in ending mass incarceration? The federal prison system is just a small slice of the total pie, but the federal government can certainly use its financial and ideological power to incentivize and illuminate better paths forward. At the same time, how can elected sheriffs, district attorneys, and judges slow the flow of people into the criminal justice system?
  • Are state officials and prosecutors willing to rethink both the War on Drugs and the reflexive policies that have served to increase both the odds of incarceration and length of stay for “violent” offenses?
  • Do policymakers and the public have the focus to confront the second largest slice of the pie: the thousands of locally administered jails? And does it even make sense to arrest millions of poor people each year for minor offenses, make them post money bail, and then lock them up when they can’t afford to pay it? Will our leaders be brave enough to redirect corrections spending to smarter investments like community-based drug treatment and job training?
  • Can we implement reforms that both reduce the number of people incarcerated in the U.S. and the well-known racial and ethnic disparities in the criminal justice system?

March 17, 2018 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Friday, March 16, 2018

New Philly DA puts forward new policies intended to "end mass incarceration and bring balance back to sentencing"

Web-larry-krasner-winner-1024-x-576This Slate article, headlined "Philadelphia’s New Top Prosecutor Is Rolling Out Wild, Unprecedented Criminal Justice Reforms," reports on the remarkable new policies put forward by the former defense attorney who is the newly elected Philly DA.  Here are highlights:

On Tuesday, Krasner issued a memo to his staff making official a wave of new policies he had announced his attorneys last month. The memo starts: “These policies are an effort to end mass incarceration and bring balance back to sentencing.”

The most significant and groundbreaking reform is how he has instructed assistant district attorneys to wield their most powerful tool: plea offers. Over 90 percent of criminal cases nationwide are decided in plea bargains, a system which has been broken beyond repair by mandatory minimum sentences and standardized prosecutorial excess. In an about-face from how these transactions typically work, Krasner’s 300 lawyers are to start many plea offers at the low end of sentencing guidelines. For most nonviolent and nonsexual crimes, or economic crimes below a $50,000 threshold, Krasner’s lawyers are now to offer defendants sentences below the bottom end of the state’s guidelines. So, for example, if a person with no prior convictions is accused of breaking into a store at night and emptying the cash register, he would normally face up to 14 months in jail. Under Krasner’s paradigm, he’ll be offered probation. If prosecutors want to use their discretion to deviate from these guidelines, say if a person has a particularly troubling rap sheet, Krasner must personally sign off.

“It’s the mirror of a lot of offices saying, ‘If you don’t ask for the max you’ve got to get my permission,’ ” says David Rudovsky, a prominent Philadelphia civil rights attorney. For longtime career prosecutors, this will take some getting used to. “You want to be sure your assistants are actually doing it,” Rudovsky says.

Krasner’s lawyers are also now to decline charges for marijuana possession, no matter the weight, effectively decriminalizing possession of the drug in the city for all nonfederal cases. Sex workers will not be charged with prostitution unless they have more than two priors, in which case they’ll be diverted to a specialized court. Retail theft under $500 is no longer a misdemeanor in the eyes of Philly prosecutors, but a summary offense—the lowest possible criminal charge. And when ADAs give probation charges they are to opt for the lower end of the possible spectrum. “Criminological studies show that most violations of probation occur within the first 12 months,” the memo reads, “Assuming that a defendant is violation free for 12 months, any remaining probation is simply excess baggage requiring unnecessary expenditure of funds for supervision.” When a person does break the rules of probation, minor infractions such as missing a PO meeting are not to be punished with jail time or probation revocation, and more serious infractions are to be disciplined with no more than two years in jail.

In a move that may have less impact on the lives of defendants, but is very on-brand for Kranser, prosecutors must now calculate the amount of money a sentence would cost before recommending it to a judge, and argue why the cost is justified. He estimates that it costs $115 a day, or $42,000 a year, to incarcerate one person. So, if a prosecutor seeks a three-year sentence, she must state, on the record, that it would cost taxpayers $126,000 and explain why she thinks this cost is justified. Krasner reminds his attorneys that the cost of one year of unnecessary incarceration “is in the range of the cost of one year’s salary for a beginning teacher, police officer, fire fighter, social worker, Assistant District Attorney, or addiction counselor.”

The policies memo is available at this link, and all sentencing fans will want to check out the entire document.

March 16, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (22)

The latest account of Trump Administration's latest punitive ideas for responding to drug problems

Politico has this lengthy new article reviewing the soon-to-be-released (and perhaps still in development) plan from the Trump Administration to respond to the opioid crisis and other drug problems.  The piece is headlined "Trump finalizing opioid plan that includes death penalty for dealers," and here are excerpts (with an emphasis on punishment pieces though it seems there will be important public health parts to the coming plan):

The Trump administration is finalizing a long-awaited plan that it says will solve the opioid crisis, but it also calls for law enforcement measures — like the death penalty for some drug dealers — that public health advocates and congressional Republicans warn will detract from efforts to reverse the epidemic.

The ambitious plan, which the White House has quietly been circulating among political appointees this month, could be announced as soon as Monday when President Donald Trump visits New Hampshire, a state hard hit by the epidemic. It includes a mix of prevention and treatment measures that advocates have long endorsed, as well as beefed-up enforcement in line with the president’s frequent calls for a harsh crackdown on drug traffickers and dealers.

Trump’s plan to use the death penalty in some cases found at least one fan among congressional Republicans: Rep. Chris Collins of New York, one of the president’s most consistent cheerleaders. “I’m all in on the capital punishment side for those offenses that would warrant that,” he said when asked about the plans Thursday afternoon. “Including drug cases. Yep.”

But several congressional Democrats said they were alarmed by Trump's plan to ramp up punishment. “We are still paying the costs for one failed 'war on drugs,' and now President Trump is drawing up battle plans for another," said Sen. Ed Markey of Massachusetts. "We will not incarcerate or execute our way out of the opioid epidemic."

The White House's most concrete proposal yet to address opioids comes after complaints from state health officials and advocates that Trump has moved too slowly to combat the epidemic after his bold campaign promises to wipe out the crisis touching all parts of the country.

However, the plan could cost billions of dollars more than Trump budgeted — and likely far more than any funding package that Congress would approve — raising questions about how much of it can actually be put into practice. Trump's emphatic embrace of the death penalty for some drug dealers has also alarmed some advocates, who say the idea has been ineffective when tried in other countries and resurrects the nation’s unsuccessful war on drugs.

Under the most recent version of the plan, which has gone through several revisions, the Trump administration proposes to change how the government pays for opioid prescriptions to limit access to powerful painkillers. It also calls on Congress to change how Medicaid pays for treatment, seeking to make it easier for patients with addictions to get inpatient care. It would also create a new Justice Department task force that more aggressively monitors internet sales....

POLITICO obtained two versions of the White House plan and spoke with four individuals who have reviewed it. The White House confirmed that a plan was in development but didn’t respond to multiple requests for further comment. Many of the measures in the plan were recommended by the president’s opioids commission last fall or discussed at a March 1 White House opioid summit. For instance, it endorses a long-promised priority: greatly expanding first responders' access to naloxone, a medication used to reverse opioid overdoses. It also calls on states to adopt a prescription drug monitoring database that health care providers can access nationwide to flag patients seeking out numerous opioid prescriptions.

On the policing side, the plan would ramp up prosecution and punishment, underscoring the tension in how public health advocates and law enforcement officials approach the crisis. Public health advocates say the nation's opioid epidemic should be treated as a disease, with emphasis on boosting underfunded treatment and prevention programs. But some law enforcement officials back tougher punishments as a deterrent, especially for drug dealers. The two camps don’t always see eye-to-eye, at times pitting HHS and DOJ officials against each other. “There is a lot of internal dissension between the health folks and the enforcement folks,” said an official involved in the crafting of the plan.

While Trump this month repeatedly suggested using the death penalty to deter drug dealers and traffickers — an idea roundly opposed by public health advocates — many lawmakers have said they weren’t sure whether to take the idea seriously. “I would have to strongly evaluate and look at any proposal like that,” said Sen. Dan Sullivan (R-Alaska) on Wednesday. “I don’t know if the president was serious or just said it off the cuff. … It’s a big issue when you decide to bring a capital case or pass a law that allows for capital punishment.”

According to language circulating this week, the Trump administration will call for the death penalty as an option in "certain cases where opioid, including Fentanyl-related, drug dealing and trafficking are directly responsible for death."

Sen. Shelley Moore Capito (R-W.Va.), whose home state is one of the hardest hit by the opioid epidemic, said she doesn't support the death penalty for drug cases. “I mean, I get the message he’s delivering: We’ve got to treat it seriously,” she said. “I don’t see that that’s going to solve the problem.”

The White House plan also calls for making it easier to invoke the mandatory minimum sentence for drug traffickers who knowingly distribute illegal opioids that can be lethal, like fentanyl. It also proposes a new Justice Department task force known as “Prescription Interdiction and Litigation,” or PIL, which would be empowered to step up prosecutions of criminally negligent doctors, pharmacies and other providers.

As serious sentencing fans perhaps already realize, though any proposal for the death penalty for drug dealers is sure to garner a lot of attention, proposals to expand the reach or application of mandatory minimum sentences are sure to be far more consequential to the day-to-day operation of the federal criminal justice system.

Prior related posts:

March 16, 2018 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (8)