Wednesday, November 22, 2017

Does and should anyone care about just how and where child molester/gymnastics coach Larry Nassar rots in prison?

The question in the title of this post is prompted by this new CNN article headlined "Ex-USA Gymnastics doctor apologizes, pleads guilty to criminal sexual conduct." Here are the basics from the article, with the last quoted sentence and link of particular note for sentencing fans:

Larry Nassar, the former acclaimed USA Gymnastics team doctor, pleaded guilty Wednesday to seven counts of first-degree criminal sexual conduct and admitted in a Michigan court to using his position to sexually abuse underage girls.  Three of the charges applied to victims under 13, and three applied to victims 13 to 15 years old.  Other charges were dismissed or reduced as part of a plea agreement.  All 125 victims who reported assaults to Michigan State Police will be allowed to give victim impact statements at Nassar's sentencing in January, according to the plea deal.

Nassar made a short statement apologizing and saying he was hopeful the community could move forward. "For all those involved, I'm so horribly sorry that this was like a match that turned into a forest fire out of control," he said.  "I have no animosity toward anyone. I just want healing. ... We need to move forward in a sense of growth and healing and I pray (for) that."

Judge Rosemarie Aquilina said Nassar violated the trust of his patients, and she praised the victims for coming forward.... Dozens of women, including several gold-medal winning members of the famed "Fierce Five" team of American gymnasts, have accused Nassar of sexual misconduct in his role as the USA Gymnastics doctor....

In all, Nassar had been charged with 22 counts of first-degree criminal sexual conduct and 11 counts of third-degree criminal sexual conduct at the state level, Megan Hawthorne, deputy press secretary for state Attorney General Bill Schuette, told CNN in July.  Several of the first-degree charges pertained to victims under 13, and all of the state-level charges involve former family friends, gymnasts and patients of Nassar, Hawthorne said.

Separately, Nassar is also awaiting sentencing on federal charges of receiving child pornography, possessing child pornography and a charge that he hid and destroyed evidence in the case.  That hearing is scheduled for Monday.

The linked article at the end here details that Nassar's federal plea from July was to a series of federal counts with a "combined maximum of 60 years of imprisonment." For a host of reasons, I would expect the calculated guideline range for Nassar on his federal child porn charges to be life imprisonment, and I would predict that he will get a richly deserved statutory maximum sentence of 60 years imprisonment at his upcoming federal sentencing.  And because Nassar is in his mid-50s, this means he likely will be getting and serving a functional life sentence in federal court before he is even sentenced in Michigan on the state sex charges that he pleaded guilty to today.

The fact that Nassar likely will already be serving a functional federal life term before being sentenced on state charges does not, in my mind, make state proceedings unimportant or inconsequential, especially given that his victims may only have a chance to have their voices directly heard during the state proceedings.  But I asked the question in the title of this post because I wondered if anyone has a particularized view in a case like this as to whether it matters, symbolically or practically, just how a defendant who commits so many terrible crimes is subject to sentencing and prison service.

November 22, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (8)

Louisiana justice gets a bit too candid expressing his views about capital punishment

This local story, headlined "Louisiana Supreme Court justice recuses self from 'Angola 5' death penalty appeal over radio interviews," reports on some notable comments concerning the death penalty made by a notable public official in the Pelican State. Here are the details:

Louisiana Supreme Court Justice Scott Crichton recused himself on Tuesday from the pending appeal of death row inmate David Brown in the "Angola 5" prison-guard murder case, a day after Brown's attorneys cried foul over comments the judge made about capital punishment on Shreveport talk radio.  Crichton's one-sentence "notice of self-recusal" came without explanation.  It leaves the remaining six state high court justices to weigh Brown's direct appeal over his conviction and death sentence in the 1999 group beating and stabbing death of Angola State Penitentiary guard Capt. David Knapps.  The court could also appoint an ad hoc judge to fill Crighton's seat in the case.

Brown's attorneys filed a motion late Monday claiming Crichton's commentary in recent radio interviews raised at least the appearance of bias in the high-profile capital case. Crichton, 63, mentioned the Angola 5 case on the KEEL morning show on Oct. 23 to illustrate his view that the death penalty can be a valuable deterrent.  A former Caddo Parish prosecutor and district judge who rose to the high court bench three years ago, he agreed with a show host that "if you're in for life, you have nothing to lose" without it.

Brown was serving a life sentence for a different murder when Knapps was killed inside a bathroom at the state penitentiary. Brown's attorneys argued that Crichton's mention of the Angola 5 case alone warranted his recusal.  Crichton went further on the airwaves, however, and Brown's attorneys argued that his other on-air remarks also revealed potential bias in Brown's case, and perhaps in any capital case that reaches the court.

On the Oct. 23 show, Crichton first acknowledged that he "can talk about anything other than a pending case before the Louisiana Supreme Court," then mentioned the Angola 5 case.  He went on to lament the lengthy appeals process in death-penalty cases and argued for well-publicized executions. "If it's carried out and the public knows about it, I believe it's truly a deterrent," he said.  "What really boggles my mind is the inmate who has committed capital murder who is on death row who is begging for his life.  Think about the fact that the victim gets no due process."

Crichton also suggested a workaround to problems many states have had in acquiring one of three drugs in a commonly used "cocktail" for state killings — a shortage he blamed on drug companies being "harassed and stalked" by death-penalty opponents.  Crichton said he favors giving condemned inmates a choice in their death: the cocktail; a new method using a single drug, nitrogen hypoxia; or another, time-tested execution method.  "Firing squad is one," he said.

November 22, 2017 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Tuesday, November 21, 2017

"Assessing and Responding to the Recent Homicide Rise in the United States"

The title of this post is the title of this notable new report coming from the National Institute of Justice and authored by Richard Rosenfeld, Shytierra Gaston, Howard Spivak and Seri Irazola.  Here is the full executive summary:

Big-city homicides rose in 2015 and again in 2016, although not all cities experienced a large increase, and homicides fell in some cities.  We consider two explanations of the homicide rise as guides for future research: (1) expansion in illicit drug markets brought about by the heroin and synthetic opioid epidemic and (2) widely referenced “Ferguson effects” resulting in de-policing, compromised police legitimacy, or both.

Larger increases in drug-related homicides than in other types of homicide provide preliminary evidence that expansions in illicit drug markets contributed to the overall homicide rise.  The current drug epidemic is disproportionately concentrated in the white population, and homicides have increased among whites as well as among African-Americans and Hispanics.  We surmise, therefore, that the drug epidemic may have had an especially strong influence on the rise in homicide rates among whites.

Current evidence that links de-policing to the homicide rise is mixed at best.  Surveys of police reveal widespread concerns about increased police-community tensions and reductions in proactive policing in the aftermath of widely publicized deadly encounters between the police and African-Americans.  Increases in homicide followed decreases in arrests in Baltimore and Chicago, although it is not known whether the same was true in other cities.  Nationwide, arrest-offense ratios and arrest clearance rates decreased in 2015, but they had been declining for several years when homicide rates were falling.  The extent of de-policing and its possible connection to the recent homicide rise remain open research questions.

Survey evidence reveals greater discontent with the police among African-Americans than among whites.  Alienation from the police can result in a decreased willingness to contact them when a crime occurs or to cooperate in police investigations and, some studies suggest, an increase in criminal behavior.  One study has shown that calls for police service fell after a controversial violent encounter between the police and an unarmed African-American in Milwaukee.  The reduction in calls for service was greater in African-American neighborhoods than in other neighborhoods.  The rate at which the police are contacted is only one of several indicators needed to measure any connection between diminished police legitimacy and the recent rise in homicides.

We emphasize the provisional nature of these hypotheses regarding the recent homicide rise.  We recommend using city- and neighborhood-level case studies to further refine the hypotheses and develop new ones, and quantitative studies of larger samples of cases should follow.  We discuss several key empirical indicators to measure changes in drug markets, policing, and police legitimacy and offer several suggestions for future research.  The National Institute of Justice (NIJ) will play an important role in facilitating the necessary research.

U.S. homicide rates rose substantially in 2015 and 2016.  These increases were much larger than was typical of yearly homicide fluctuations over the past several decades, so they merit close attention.  This paper extends a previous analysis (Rosenfeld 2016) by documenting the homicide rise in 2015 with more complete data and presenting data for large cities in 2016.  The paper then considers two explanations for the recent homicide increase.  The first explanation ties the increase to the expansion of illicit drug markets resulting from the heroin and synthetic opioid epidemic in the United States.  The second explanation is the widely referenced Ferguson effect on crime rates, which attributes the homicide increase to reduced proactive policing, community alienation from the police, or both (Mac Donald 2016; Rosenfeld 2016). The paper concludes with recommendations for future research on the recent homicide rise.

November 21, 2017 in Drug Offense Sentencing, National and State Crime Data | Permalink | Comments (9)

Senator Mike Lee explains how "conservative approach to lawmaking" drives his advocacy for federal sentencing reforms

Lee_1x1Pew's Public Safety Performance Project has this notable new Q&A with Mike Lee under the subheading "A U.S. senator and former assistant U.S. attorney discusses crime and punishment, and how his views on both have changed."  I recommend the entire Q&A, and the final three Qs and As struck me as worth reprinting here:

Q: How has your conversion on criminal justice influenced your career?

A: When I got to the Senate, I remembered what that [Judge Paul Cassell in the Angelos case] had said, and I realized that I had become one of the people who could help fix this problem.  So that’s what I decided to do.  I knew it wouldn’t necessarily be easy, but I also knew it was important.  So I started looking for allies, and that led me to team up with Sen. Dick Durbin (D-IL) on our legislation.  It’s easy to say you want to be tough on crime and go along with any and every attempt to increase penalties, including minimum mandatory penalties. But to be effective, a criminal justice system must be seen as legitimate.  And for too long, our federal sentencing laws have required punishments that just don’t fit the crime.

Q: Have you encountered any interesting reactions to the change in your views?

A: Most of it is encouraging. Most people I talk to, regardless of where they are on the political spectrum, are glad that somebody is doing this. And they’re glad to see me involved. There are some who aren’t. There are some who get upset and pound their chest and say, “You need to take criminals and lock them up and you need to throw away the key. We’ve got to be harder on crime and harder on criminals rather than softer.” So yes, there are those who take that approach, and most of those people would probably describe themselves as conservatives. Regardless of whether you consider that a conservative approach or not, I don’t think it’s a particularly thoughtful one. I don’t think it’s a particularly helpful one. It does us no good to be harsh just for the sake of harshness.  Harshness itself isn’t an end objective.  We want to be smart in the way we punish crime.  We want to be effective. Public safety is the end result we’re trying to achieve.

Q: Any final thoughts?

A: Some people ask me, “Why are you doing this even though you’re a Republican? And a conservative Republican at that?”  And the answer is that I don’t view criminal justice reform as incompatible with being a conservative; in fact, I’m doing this because I’m a conservative. Conservatives purport to be conservative because, among other things, conservatives believe we should take great care when government intervenes to deprive someone of liberty or property.  There’s no greater due process deprivation than when the government puts someone away, either wrongfully or for a longer period of time than is just.  So for me, this is a natural outgrowth of my conservative approach to lawmaking.

November 21, 2017 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4)

"Justice at Last for the Youngest Inmates?"

13046135_1510955771706The question in the title of this post is the headline of this New York Times editorial about juve LWOP sentencing that starts with another question and answer: "How many times does the Supreme Court have to repeat itself before its message gets through?  In the case of life-without-parole sentences for juveniles, the answer seems to be: at least one more time." Here is more:

On Tuesday, the justices will meet to consider whether to hear two separate cases asking them to ban those sentences categorically, in line with the Eighth Amendment’s guarantee against cruel and unusual punishments.  It should be an easy call.  For more than a decade, the court has been moving in the right direction, growing ever more protective of juveniles who are facing the harshest punishments in our justice system.

In 2005, the court banned the death penalty for people who committed their crimes before turning 18.  In 2010, it outlawed juvenile sentences of life without the possibility of parole in all cases but homicide.  In 2012, it barred mandatory sentences of life without parole for juveniles in all cases.  And in 2016, it made that ruling retroactive for the more than 2,000 inmates already sentenced....

[S]ince the court’s string of rulings, many more states have come on board; 20 states and the District of Columbia now ban the sentence in all cases. In four other states it exists on the books but is never imposed in practice. Even Pennsylvania, the juvenile-lifer capital of the country, has since the 2016 ruling avoided seeking such sentences in all but the rarest circumstances.  Not surprisingly, new sentences of life without parole for juveniles have also dropped sharply.

But in a few states, prosecutors are still behaving as though the last 12 years never happened. The problem is worst in Louisiana and Michigan, which together account for more than a quarter of all juvenile lifers. In Michigan, prosecutors are seeking resentences of life without parole in more than half of all the state’s cases, which meets no one’s definition of “uncommon.”  In Louisiana, the state wants life without parole for 82 of the 258 people whose mandatory sentence was struck down last year.  The numbers are even worse at the local level. New Orleans prosecutors are seeking life without parole in half of all cases; in West Baton Rouge Parish, 100 percent.

Statistics like these have nothing to do with careful consideration of “the mitigating qualities of youth,” as Justice Elena Kagan put it in the Miller case, and everything to do with blind retribution. The insistence on maximum punishment is even harder to understand when one considers that the court has hardly issued a get-out-of-jail card to those juveniles serving life without parole.  It has said only that people whose crime occurred when they were too young to vote or buy beer should get “some meaningful opportunity,” usually only after decades in prison, to make a case for release.

As long as there’s a loophole, however, Michigan and Louisiana appear eager to drive a truck through it.  For the sake of the hundreds of juveniles in those states, many of whom have spent decades rehabilitating themselves, and to reaffirm the court’s role as the ultimate arbiter of the Constitution, the justices should ban these sentences for good.

I suspect that Justice Kennedy is still not yet ready to embrace a categorical ban on juve LWOP sentences in all circumstances, and this means there are likely not the SCOTUS five votes needed to move Eighth Amendment jurisprudence where the New York Times is urging.

Meanwhile, the Detroit Free Press has this recent lengthy article under the headline "Michigan remains a battleground in a juvenile justice war keeping hundreds in prison," which further details the ugly record of the state up north in this arena. Here is a snippet:

A year and a half after the Supreme Court ruled that all juvenile lifers across the nation should have the opportunity to be re-sentenced and come home, fewer than 10% of those in Michigan — a total of 34 — have been discharged.

The number, while low, could be chalked up to byzantine bureaucracy and the many moving parts of the criminal justice system. Civil rights activists, however, contend that while an array of procedures have slowed down the re-sentencing process nationally, Michigan is unique in its simple reluctance to recommend shorter sentences.

According to data from court records and the Michigan Department of Corrections, prosecutors in 18 Michigan counties have recommended continued life without parole sentences for all of the juvenile lifers under their purview. Statewide, 66% of Michigan's juvenile lifers have been recommended for the continued life sentence — a sentence which the Supreme Court declared unconstitutional but for the rarest of cases.

"First, Michigan took the strongest position in the country against children having a second chance, and now Michigan prosecutors are defying the Supreme Court’s holding that all children are entitled to a meaningful and realistic opportunity for release," said civil rights attorney Deborah LaBelle, who is one of several leading the charge to upturn the current status quo. "They are resisting the explicit ruling of the Supreme Court that this sentence can only be imposed on the rarest of children who commit a homicide and is irreparably corrupted," she continued.

And while the recommendations are a moving target, with some county prosecutors re-evaluating their filings — Saginaw County, for example, originally recommended 20 out of 22 defendants for continued life, but now contends that over half their recommendations have either changed or are now "undetermined" — the uncertainty means hundreds remain in the dark. They recognize the prospect of maybe, possibly, one day coming home, but have no clear roadmap of how this can come to be.

As the legal players dispute the intentions of the high court, men and women just like Hines, persist in a criminal justice limbo, while family members of victims are asked to grapple with unresolved emotions surrounding some of the most traumatic experiences in their lives. The disconnect has meant Michigan — already a touchstone in the juvenile lifer debate, with one of the largest populations in the nation — remains a battleground in a war many assumed to be over.

November 21, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Tennessee judge formally reprimanded for offering reduced jail time for defendants agreeing to vasectomy or birth control implant

I almost did not believe the story from earlier this year, blogged here, about a Tennessee judge giving 30 days credit off imposed jail time if an inmate were to voluntarily agree to have a vasectomy or birth control implant. But the tale was true, and this new Washington Post piece reports on the latest chapters of this remarkable local imprisonment tale:

When Judge Sam Benningfield of White County, Tenn., offered to shave off jail time for inmates who volunteered for sterilization, a chorus of attorneys, advocates and public officials reacted with horror.

Benningfield said his goal was to break a “vicious cycle” of repeat drug offenders with children. But many argued that the proposal, outlined in a May order, was nothing short of eugenics. Not to mention it seemed unconstitutional on its face. Civil rights lawyers brought legal actions and a local prosecutor told his staff to avoid the judge’s program at all costs.

Now, after the wave of backlash and amid multiple lawsuits, state judicial regulators have formally reprimanded Benningfield for promising 30-day sentence reductions to inmates who agreed to receive vasectomies or birth control implants.

In a letter filed Monday, the Tennessee Board of Judicial Conduct found that Benningfield violated rules regarding judicial independence, integrity and propriety. “You have acknowledged that even though you were trying to accomplish a worthy goal in preventing the birth of substance addicted babies,” the board wrote, “you now realize that this order could unduly coerce inmates into undergoing a surgical procedure which would cause at least a temporary sterilization, and it was therefore improper.”...

The judicial board’s letter says the program is no longer available to any inmate and that Benningfield ran afoul of rules requiring judges to “act at all times in a manner that promotes public confidence.” It noted that Benningfield didn’t object to the reprimand. The letter also reprimanded Benningfield for threatening to end an unrelated house arrest program if a defense attorney refused to withdraw a valid objection regarding a client’s probation....

Several inmates who were jailed when the orders were in effect sued the judge and White County Sheriff Oddie Shoupe, claiming their constitutional rights were violated. The judge and the sheriff have denied liability.

Daniel Horwitz, who represents a group of male inmates, said the judicial board should have gone further than reprimanding Benningfield and instead should have recommended he be removed from the bench. “A public reprimand is serious, but as far as I’m concerned, nothing short of removal is acceptable,” Horwitz told The Post....

Horwitz filed court papers in September on behalf of three male inmates, who called Benningfield’s program “both illegal and profoundly coercive.”  Two of the plaintiffs declined the offer for vasectomies in exchange for a sentence reduction. Another plaintiff agreed to the procedure in hopes of being released in time to watch the birth of his first grandchild. He enrolled in the judge’s early release program but didn’t receive the reduction.

Dozens of their fellow inmates, male and female, agreed to undergo birth control procedures, which can be irreversible in some cases.  Horwitz’s lawsuit describes one female White County inmate who received a hormonal birth control implant and later tried to cut it out of her arm with a razor blade.  She is not listed as a plaintiff....

District Attorney Bryant Dunaway, whose district includes White County and Benningfield’s court, was among those who criticized the sterilization program. Dunaway, who vowed during his election campaign to crack down on repeat offenders, told NewsChannel 5 in July that he had instructed his staff not to take part in Benningfield’s order “in any way.”

“Those decisions are personal in nature,” he said, “and I think that’s just something that the court system should not encourage nor mandate.”

Prior related post:

November 21, 2017 in Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Monday, November 20, 2017

Hasn't Prez Trump has already pardoned a turkey before this week's traditional ceremony?

69684e46-ba40-4d95-b4e1-301af475e2e7The question in the title of this post was prompted, with a tongue in check, by an email I received this evening with the subject-line "Vote: Which Turkey Should President Trump Pardon?."  The email came with the picture reprinted here, as well as the following text and link:

Tomorrow, President Donald J. Trump will pardon the National Thanksgiving Turkey in a ceremony in the Rose Garden. This year, the President will celebrate the 70th anniversary of the National Thanksgiving Turkey presentation, as he reflects on our Nation’s rich Thanksgiving traditions and wishes American families a safe and healthy holiday.  Vote here.

Clicking through to the link brought up pictures of the turkeys named Drumstick and Wishbone, but I kept thinking there should be other voting options.  Prez Trump has, of course, already pardoned one person earlier this year, and there has been plenty of talk about other possible pardons.

Notably, around this time back in 2009, I had a couple of posts lamenting that Prez Obama had failed to use his clemency powers in any way before it became time for him to participate in the traditional turkey pardon spectacle (a few of these posts are linked below).  In fact, as revealed in this DOJ Pardon Attorney statistics page, Prez Obama and Prez Bush and Prez Clinton all started their presidencies with two full years in which they failed to use their historic clemency powers in any way.

But Prez Trump is unlike his predecessors in so many ways, and his use of the pardon power is yet another example.  Specifically, as folks must surely recall, Prez Trump pardoned attorney former Sheriff Joe Arpaio back in August.  It now appears that either Drumstick and Wishbone will be next, and then who knows.

Posts from 2009 about the last, first Prez Thanksgiving pardon event:

November 20, 2017 in Clemency and Pardons, Who Sentences? | Permalink | Comments (0)

"Gun theft from legal owners is on the rise, quietly fueling violent crime across America"

The title of this post is the title of this notable new article from The Trace.  I recommend the piece in full, and here is how it gets started, along with some of the reported data:

American gun owners, preoccupied with self-defense, are inadvertently arming the very criminals they fear.

Hundreds of thousands of firearms stolen from the homes and vehicles of legal owners are flowing each year into underground markets, and the numbers are rising. Those weapons often end up in the hands of people prohibited from possessing guns. Many are later used to injure and kill.

A yearlong investigation by The Trace and more than a dozen NBC TV stations identified more than 23,000 stolen firearms recovered by police between 2010 and 2016 — the vast majority connected with crimes. That tally, based on an analysis of police records from hundreds of jurisdictions, includes more than 1,500 carjackings and kidnappings, armed robberies at stores and banks, sexual assaults and murders, and other violent acts committed in cities from coast to coast.

“The impact of gun theft is quite clear,” said Frank Occhipinti, deputy chief of the firearms operations division for the Bureau of Alcohol, Tobacco, Firearms and Explosives. “It is devastating our communities.”

Thefts from gun stores have commanded much of the media and legislative attention in recent years, spurred by stories about burglars ramming cars through storefronts and carting away duffel bags full of rifles and handguns. But the great majority of guns stolen each year in the United States are taken from everyday owners. Thieves stole guns from people’s closets and off their coffee tables, police records show. They crawled into unlocked cars and lifted them off seats and out of center consoles. They snatched some right out of the hands of their owners....

In most cases reviewed in detail by the Trace and NBC, the person caught with the weapon was a felon, a juvenile, or was otherwise prohibited under federal or state laws from possessing firearms.

More than 237,000 guns were reported stolen in the United States in 2016, according to previously unreported numbers supplied by the National Crime Information Center, a database maintained by the Federal Bureau of Investigation that helps law enforcement track stolen property. That represents a 68 percent increase from 2005. (When asked if the increase could be partially attributed to a growing number of law enforcement agencies reporting stolen guns, an NCIC spokesperson said only that “participation varies.”)

All told, NCIC records show that nearly two million weapons have been reported stolen over the last decade.

The government’s tally, however, likely represents a significant undercount. A report by the Center for American Progress, a left-leaning public policy group, found that a significant percentage of gun thefts are never reported to police. In addition, many gun owners who report thefts do not know the serial numbers on their firearms, data required to input weapons into the NCIC. Studies based on surveys of gun owners estimate that the actual number of firearms stolen each year surpasses 350,000, or more than 3.5 million over a 10-year period.

“There are more guns stolen every year than there are violent crimes committed with firearms,” said Larry Keane, senior vice president of the National Shooting Sports Foundation, the trade group that represents firearms manufacturers. “Gun owners should be aware of the issue.”

November 20, 2017 in Gun policy and sentencing, National and State Crime Data, Second Amendment issues | Permalink | Comments (1)

Noting Justice Department's latest ACCA/AEDPA litigation switch in time hoping to avoid nine Justices

Adam Liptak's latest New York Times Sidebar column, headlined "Serving Extra Years in Prison, and the Courthouse Doors Are Closed," does an effective (though necessarily incomplete) job of reviewing the notable recent change in litigation position coming from the Justice Department.  Here are extended highlights from an article highlighting a complicated and important matter of federal habeas procedure:

It is one thing for a new administration to switch sides in a legal dispute.  That is merely unusual.  It is another to urge the Supreme Court to deny review in a case that would test whether the government’s new position is correct.

In a Supreme Court brief filed last month, the Justice Department tried to have it both ways.  It told the justices that it no longer believed that some federal prisoners serving longer prison terms than the law allowed were entitled to challenge their sentences in court.  For the last 16 years, the Justice Department had taken the opposite view.  It said so in at least 11 Supreme Court briefs.  You might think the Supreme Court should settle things.

But the department urged the justices to refuse to hear an appeal from Dan C. McCarthan, a Florida man who said he was sentenced to seven more years than the law allowed.  It did so even as it acknowledged that the legal question was significant and that the department’s new position could lead to harsh results, condemning inmates to serve out unlawful sentences.

The administration’s request that the Supreme Court deny review in Mr. McCarthan’s case was “incredibly unseemly” and “not a good look for the Department of Justice,” said Leah Litman, a law professor at the University of California, Irvine, and an authority on the complicated web of statutes that govern post-conviction challenges from federal prisoners....

The Justice Department’s litigation two-step also drew a sharp response from Mr. McCarthan’s lawyers, who include Kannon K. Shanmugam, a partner at Williams & Connolly. “There is nothing inherently wrong with a new administration’s changing position on a question before this court — although it is rare on a question involving the administration of the criminal justice system,” Mr. Shanmugam wrote in a brief filed last week.  “But when the government changes position on a concededly important question that has divided the circuits, it should at least have the courage of its convictions and be willing to defend its new position on the merits in this court.”

Nine federal appeals courts allow the challenges, while two do not.  The new case, McCarthan v. Collins, No. 17-85, started in 2003, when Mr. McCarthan pleaded guilty to a federal gun charge.  That conviction would ordinarily have subjected him to a maximum sentence of 10 years.  But the judge sentenced him to more than 17 years under a federal law that requires longer terms for career criminals.

A career criminal, the law says, is one who has been convicted of at least three serious drug offenses or violent felonies.  One of the convictions that justified Mr. McCarthan’s extra seven years was for escape....  When Mr. McCarthan was sentenced, courts treated all escapes as violent.... [But] “a ‘walkaway’ escape is not a ‘violent felony,’” the [Supreme] court ruled in 2009, six years after Mr. McCarthan was sentenced to extra time based on just such an escape.  He then asked the courts to take another look at his sentence.

In March, the 11th Circuit rejected Mr. McCarthan’s challenge.  The vote was 7 to 4, with the majority saying that Mr. McCarthan had filed his challenge too late under a federal law that places strict limits on habeas corpus petitions.  But the law has an exception, enacted in 1948, for cases in which the ordinary procedure “is inadequate or ineffective to test the legality” of a prisoner’s detention.

The Justice Department had long agreed that the exception applied in cases like Mr. McCarthan’s. It said so in Mr. McCarthan’s own case before the 11th Circuit.  Since the government and Mr. McCarthan agreed that he should at least be allowed the present his challenge, the 11th Circuit appointed a lawyer to argue the opposite position. Then it accepted the appointed lawyer’s argument, which was based on a technical analysis of various statutory provisions.

Only one other federal appeals court has interpreted the 1948 law to bar challenges like Mr. McCarthan’s.  In 2011, the United States Court of Appeals for the 10th Circuit, in Denver, ruled that a prisoner who had pleaded guilty to money laundering in 1999 could not challenge his conviction after the Supreme Court, in a decision issued nearly a decade later, undermined the prosecution’s theory.  The 10th Circuit’s majority opinion was written by Judge Neil M. Gorsuch, who joined the Supreme Court this year.  His 2011 opinion, Professor Litman wrote in January, before his nomination, “makes one wonder what a Justice Gorsuch would mean for criminal justice at the Supreme Court.”

In 2011, the Justice Department criticized Judge Gorsuch’s opinion.  Last month, it endorsed it.  Mr. McCarthan, the department’s brief said, should have argued from the start that his escape was not a violent felony, even though the law at the time was squarely against him.  He should have asked “to have the adverse precedent overturned,” the brief said. It was now too late to raise the question, the brief said.

November 20, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Anyone eager to draw sentencing lessons in the wake of mass murderer Charlie Manson's demise?

There are any number of old and new California sentencing stories that surround the murderous Manson family, especially as some members of the "family" continue to pursue parole.  With the death of the leader, this extended Daily Beast article, headlined "Charles Manson’s Prosecutor Says He Deserved to Be Killed Years Ago," provides a useful reminder of the awful carnage and legacy of Manson.  Here are snippets with some of the enduring sentencing details:

Charles Manson should have died a long time before today. That’s according to one of the prosecutors who sent Manson and his murderous followers to Death Row, only to see their sentences later commuted to life in prison.

Manson, 83, died Sunday at Kern County hospital in California, corrections officials said. Manson’s death spells “the end of a very evil man,” Stephen R. Kay told The Daily Beast in an exclusive interview earlier this year prior to Manson’s death.

Kay was a Los Angeles County deputy district attorney who worked with fellow deputy Vincent Bugliosi to secure guilty verdicts for Manson and his flock of killers, who came to be known as “The Family.” Manson, Susan Atkins, Leslie Van Houten, Patricia Krenwinkel, Charles “Tex” Watson, Steve “Clem” Grogan, and Bruce Davis were convicted in all or some of the 1969 murders of nine people, including actress Sharon Tate, who was pregnant with director Roman Polanski’s child.

“No, that was a pretty easy decision based on the gruesomeness of the crimes and the motives: wanting to start a race war,” Kay said. “I think there are some crimes that are so heinous that in order for us to exist as a society that we have to say we will absolutely not accept this type of behavior and the person will have to suffer the ultimate penalty. “It’s not that we’re giving Charles Manson the death penalty; it’s that he earned it.”...

At 73, and now retired, Kay said he can still hear the sinister threats on his life made by Manson and his disciples. “Squeaky [Fromme] and Sandy Good snuck up behind me and said they’re going to do to my house what was done at the Tate house,” Kay said....  During one of Manson’s many parole hearings, the death-cult leader detailed how he was going to take out Kay. “The most direct one was after the parole hearing—he told me he was going to have me killed out in the parking lot on the way to my car,” he said. “I mean, that to me was the most memorable one. It was so direct.” Kay acknowledged even with protection, he was merely testing fate if he felt like he was immune to becoming another Manson victim. “When Manson says something like that after what he’s done, you have to take it seriously,” he said.

It’s the kind of power wielded by Manson that the former prosecutor feels was lorded over Fromme, who was caught with a pistol trying to shoot President Gerald Ford in 1975. “I happen to believe that there’s no way Squeaky Fromme on her own would have thought up the idea of trying to assassinate President Ford in the park in Sacramento,” he said. “I believe Manson put her up to that.”

In 1970, Manson, Atkins, Krenwinkel, and Watson (in a separate trial later) were convicted of murder and conspiracy for the Tate-LaBianca killings and were all sentenced to death.  Sealing their fates was fellow Family member Linda Kasabian, who testified against them in exchange for immunity.  In a 1971 trial, Manson was convicted and sentenced to life for the 1969 murders of Donald “Shorty” Shea and Gary Hinman. When Shea, who was a ranch hand and stuntman on Wild Western films returned to Spahn Ranch with a black wife, it allegedly set Manson off. Manson was also convinced that Shea had “snitched” on the group, having tipped off cops on a boosted car, which led to an Aug. 16, 1969, raid at dawn on their compound by police....

All of the Family members who were sentenced to death, including Manson, were spared when the California Supreme Court overturned the death penalty back in 1972 and commuted their sentences to life in prison. The state would later bring back the death penalty, but the life sentences for Manson and his killer kin stuck.  “It would be ex post facto violation of the Constitution to go back and reinstate it because you can only be prosecuted with what the law was when you committed the crime, and these laws were committed in 1969,” Kay said. “And the death penalty that was in effect in ’69 was held to be unconstitutional.”...

Ironically, most of Manson’s former followers have outlived him, save for Susan Atkins, who died in prison from brain cancer back in 2009.  Leslie Van Houten, now 68, held Rosemary Labianca down and covered her face with a pillowcase while another Family member carved “War” into her husband’s stomach after stabbing him in the couple’s home. (Then they helped themselves to chocolate milk in the fridge.)  Van Houten was also the one who scribbled missives on the house walls using their victims’ blood.  “I don’t let myself off the hook,” Van Houten told a parole panel. “I don’t find parts in any of this that makes me feel the slightest bit good about myself.”  Van Houten was granted parole in September, but Gov. Jerry Brown is expected to reverse the decision as he did last spring.

Charles “Tex” Watson, now 72, did a stint in Atascadero State Mental Hospital and said he has since found God while serving his life sentence as a chaplain at Mule Creek Prison in Ione. Watson failed more than a dozen times to convince a parole board to free him for his part in being Manson’s hitman; his was the last face so many victims saw before they were tortured and slain with a wrench, knife, or pistol.

Patricia “Krenny” Krenwinkel, 70, remains California’s oldest female inmate and has been serving life at California Institution for Women in Corona. She has since renounced Manson and The Family. “What a coward that I found myself to be when I look at the situation,” Krenwinkel said during a 2014 interview with The New York Times.  Lynette “Squeaky” Fromme, 61, was granted parole back in 2009 after serving 34 years hard time for the attempt on President Ford’s life. She has reportedly relocated to upstate New York, where she lives in isolation....

That Manson managed to hold on for this long was like an open wound for so many families. “It made the case go on forever,” Kay said. “If the penalty was put into effect then the case would have been done in the 1970s. There’s never really any closure.”...  Tate’s mother, who died in 1992, became an outspoken crusader for justice.  “I think at one time she was the most powerful woman for victims rights in California,” Kay said, adding that if you were a politician worth your salt in California you sought out Tate’s endorsement. “She really started the victims’ rights movement that is still so powerful even today.”

Kay isn’t blind to the irony that had the sentence gone forward Manson wouldn’t have become quite the diabolical deity that has haunted popular culture for decades.  “We wouldn’t be having this conversation,” Kay said.

November 20, 2017 in Celebrity sentencings, Death Penalty Reforms | Permalink | Comments (6)

Sunday, November 19, 2017

"How Congress, the U.S. Sentencing Commission and Federal Judges Contribute to Mass Incarceration"

The title of this post is the title of this recently posted short article by US District Judge Lynn Adelman.  Here is its abstract:

This article argues that each of the major decision-makers in the federal sentencing process, Congress, the United States Sentencing Commission and the federal judiciary contribute substantially to mass incarceration.  The article first discusses how, beginning in the 1960s and continuing for the next three decades, Congress enacted a series of increasingly punitive anti-crime laws. Congress’s focus on crime was inextricably connected to the urban rebellion of the 1960s, and members of both political parties played important roles in passing the harsh legislation. 

Probably the worst of the laws that Congress enacted, and the one that contributed most to mass incarceration, was the mis-named Sentencing Reform Act of 1984 which abolished federal parole and established a commission to promulgate mandatory sentencing guidelines.  The commission proceeded to enact extremely harsh guidelines and virtually preclude sentences of probation.  The article laments how, even after the Supreme Court struck down the mandatory feature of the guidelines, federal judges continue to adhere closely to the guidelines when sentencing defendants.

Finally, the article argues that one of the fundamental problems plaguing federal sentencing is the widespread misconception that the most important indicator of an effective and credible sentencing system is the absence of inter-judge disparity rather than the exercise of informed discretion.

November 19, 2017 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Notable advocacy for Georgia as "national model" for sentencing reform

Newt Gingrich and Kelly McCutchen have this notable new local commentary headlined "Criminal sentencing reform in Georgia has become national model."  Here are excerpts:

Texas is celebrating 10 successful years of reform that has led to the lowest crime rates since 1967 and the lowest rate of incarceration in a generation.  Meanwhile, the state of Georgia is following in the Lone Star State’s footsteps by increasing public safety and reforming the criminal justice system.

This is especially important to note because the FBI reported last month that while the national crime rate is down, violent crime has increased slightly for two years in a row, due in large part to an increase in homicides in cities such as Chicago and Baltimore.

In 2012, Gov. Nathan Deal recognized the breakthroughs Texas was making and began a justice reinvestment plan that tackled some of the biggest challenges facing Georgia’s criminal justice system.

Chief among these challenges was that Georgia sent many low-risk offenders to prison for lengthy sentences. For too long, the assumption was that the most appropriate form of punishment was long-term incarceration.  However, research shows that low-risk, nonviolent offenders who serve long sentences tend to continue to commit crimes after being released.

Once Georgia’s sentencing challenge was identified, the state was able to restructure sentences for property and drug offenses.  Lawmakers came up with alternatives that actually held offenders accountable -- rather than simply punishing them -- and reduced the likelihood that they would reoffend.  Alternatives included substance abuse treatment and accountability courts, both of which more effectively address the causes of many offenders’ behavior. This low-level sentencing change allowed the state to focus on imprisoning serious offenders, which resulted in fewer victims of crime, increased safety outcomes and lowered costs.

Georgia also worked to improve the juvenile justice system, which was exceedingly expensive and not as effective as it could be. The state began to implement programs to help rehabilitate juvenile offenders outside of a detention setting. At the same time, the state shifted its focus toward helping juvenile offenders who had served time to return to society as productive citizens....

The results speak for themselves:

• Violent and property crime rates have been on a steady decline for over a decade, with property crime and total crime taking an even steeper decline since the reforms, compared to the years prior.

• Parole revocation is down 35 percent from 2007 to 2016, a sign that fewer released offenders are sent back to prison because they violated conditions of their supervision.

• The Georgia corrections system now includes 67 percent violent offenders, up 9 percent since 2009, which illustrates a renewed focus on violent crime over low-level drug crime.

Georgia’s story is an incredible one for many reasons. First, it disproves the widely held belief that incarcerating more offenders means less crime.  The reforms in Texas and Georgia -- as well as South Carolina, Mississippi and other states -- show alternatives can be more effective.

Second, it shows that being “tough on crime” by incarcerating offenders for long sentences –-- and for every offense, large or small -- is more about playing politics than getting results. The research tells us that long sentences for low-level, nonviolent offenders can result in worse public safety outcomes.  Housing lower-risk people with more dangerous offenders makes them more dangerous themselves.  In this way, harsh sentences make our streets less safe.

These successes should drive our public policy discussions about crime and safety. We are disturbed by the FBI report on violent crime. Crime, particularly violent crime, is a complex issue that requires careful analysis to identify specific causes and remedies at the local level.  Georgia has already been successful in doing that with nonviolent crimes. It will take a community-wide effort to determine the best ways to keep violent crime at bay.

Those of us on the side of reform vow to work with policymakers, political leaders, and law enforcement to continue on the path that has led to years of low crime rates. This nation cannot backslide into antiquated, tired and misinformed narratives for the sake of political capital and convenience.

November 19, 2017 in Elections and sentencing issues in political debates, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

Saturday, November 18, 2017

Reviewing Ohio's unique execution difficulties ... which perhaps explains seemingly ho-hum reaction to latest botched Ohio execution

As detailed in this DPIC listing, this past week, there were scheduled executions in Nevada, Ohio and Texas, but two of these planned lethal injections were stayed.  And in Ohio, as first reported here, Ohio tried but failed to complete the lethal injection of a double murderers.  Only thrice in recent US history has the execution process been started and then halted with the condemned inmate living on, and two of those cases have taken place in the last decade in Ohio.  Moreover, as reviewed in this recent ACLU posting, Ohio has an extraordinary recent history with troubled executions (links from the original):  

Ohio’s lethal injection team spent more than 30 minutes poking Alva Campbell’s decrepit body in search of any decent vein into which they could inject their lethal cocktail to no avail. They finally relented — but only temporarily.  Hours later, Gov. John Kasich announced not a commutation — or a plan to investigate what went wrong — but that Campbell’s execution would be rescheduled for 2019....

It was predictable and avoidable not only because of information furnished to the state by the defense, but because Ohio had already committed a similar bungle in 2009 when it failed to find a suitable vein to execute Rommell Broom after sticking him with needles for over two hours.

The ability to find a suitable vein is basic to lethal injection. When it cannot be done — because of lack of training and qualifications of the lethal-injection team or the health of the prisoner — the process becomes impossible and the risk of a failure or botch undeniable.

The botched two-hour execution of Christopher Newton in 2007 also stemmed from the execution team’s inability to access a suitable vein. The state’s botched execution of Dennis McGuire in 2014 has been attributed to the use of midazolam — great if you need a sedative for a medical procedure but unsuitable for executions.

The takeaway should be clear. Ohio cannot be trusted to use the death penalty, as time and time again the state fails and causes needless pain and unconstitutional torture. But Ohio is forging ahead.  The state’s schedule of more than two dozen lethal-injections through 2022 gives Ohio the dubious distinction of maintaining the longest list of upcoming executions in the nation. A second attempt to take Campbell’s life is now set for 2019, while Rommell Broom’s new date is in 2020. Last year, a divided Ohio Supreme Court ruled that Ohio could attempt to execute Broom, yet again....

Because I know and have respect for lots of folks involved in Ohio's criminal justice system, I am somewhat amazed and greatly troubled that Ohio has a uniquely disconcerting recent record in the carrying out of executions. At the same time, I have this week also been somewhat intrigued that Ohio's latest botched execution has not received all that much attention in Ohio or nationwide.

As highlighted via this post and this one, when Oklahoma had an ugly execution in 2014, it engendered lots of national attention and commentary and calls for a national moratorium on executions.  Of course, that ugly execution was arguably more grotesque that what happened this past week in Ohio, and surely death penalty abolitionists figured in 2014 they had more national leaders who were sympathetic to their capital punishment criticisms.  Still, I think it is notable and telling that the reaction to Ohio's latest execution difficulties is relatively "ho-hum."

Recent prior related posts:

November 18, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (17)

"Justice for Veterans: Does Theory Matter?"

The title of this post is the title of this new paper I just saw on SSRN authored by Kristine Huskey. Here is the abstract:

The Veterans Treatment Court (“VTC”) movement is sweeping the nation.  In 2008, there were approximately five courts.  Currently, there are over 350 VTCs and veteran-oriented tracks in the United States.  Most view this rapid proliferation as a positive phenomenon.  VTC growth, however, has occurred haphazardly and most often without deliberate foundational underpinnings.

While most scholars assume that a therapeutic jurisprudence (“TJ”) modality is the paradigm for VTCs, there has been little examination of other theories of justice as appropriate for veterans and the courts that treat them.  This Article addresses whether an alternative theory of justice — specifically, restorative justice (“RJ”) — can inform the theoretical foundation of a VTC to enhance its beneficial impact on veterans with post-traumatic stress disorder (“PTSD”), traumatic brain injury (“TBI”), or substance abuse issues.  A primary feature of the RJ philosophy is that it is community-driven: it involves the victim, offender, and “community of interests” in the solution, process of restoration, and prevention of future misconduct.

These principles are well suited for a VTC, which is also collaborative, community-based, and places extreme importance on the reintegration of the veteran back into society.  These characteristics stem from an evolved theory that the community is ultimately responsible for the misconduct that was caused by the defendant’s military service. A hypothetical criminal case common in a VTC illustrates that RJ principles and framework may enhance the beneficial impact of VTCs.  RJ may be just the theory of justice that brings to bear Sebastian Junger’s notion of a tribe as a means for the successful reintegration of veterans back into the community.

November 18, 2017 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (8)

Friday, November 17, 2017

New ACLU poll suggests significant interest in criminal justice reform

This ACLU posting, headlined "ACLU Poll Finds Americans Reject Trump’s Tough-on-Crime Approach," reports on the result of notable new poll with notable new findings. Here are excerpts from the posting:

In a rejection of President Trump and Attorney General Jeff Sessions' tough-on-crime approach, a new ACLU poll finds that a large majority of Americans believe the criminal justice system is unjust and needs to be significantly reformed.

Nine out of 10 Americans from across the political spectrum told our pollster that our criminal justice system needs fixing. This is an astounding number, but the results are even more impressive when you drill down into them. They show that criminal justice reform is a political issue the American people care about....

Our polling shows that Americans are uncomfortable with the land of the free putting so many of its people behind bars, particularly when two out of three respondents do not believe that the criminal justice system treats Black people fairly. Seventy-one percent of respondents said that the United States should reduce its prison population.

This support remained strong across people with very different political beliefs. Eighty-seven percent of Democrats, 67 percent of independents, and 57 percent of Republicans all agreed that we should reduce our prison population. But one of the most encouraging signs that Americans have had enough of mass incarceration is that 52 percent of Trump voters said it was important to reduce the size of the prison population.

Most people polled also believed that mass incarceration wasn’t just a serious problem but counterproductive. Seventy-one percent of respondents agreed that “sending someone to prison for a long sentence increases the chances that he or she will commit another crime when they get out because prison doesn’t do a good job of rehabilitating problems like drug addiction and mental illness.” This includes 68 percent of Republicans and 65 percent of Trump voters. Bleeding-heart liberals they are not.

Americans also don’t want their prisons full of people with mental health disabilities. Eighty-four percent of respondents said that people with mental health disabilities belong in mental health programs instead of prison.

Two in three Americans would be more likely to vote for candidates who supported reducing the prison population and using the savings to reinvest in drug treatment and mental health programs, including 65 percent of Trump voters. And 72 percent said that they would be more likely to vote for an elected official who supports eliminating mandatory minimum laws. This is in direct contrast to the agenda pushed forward by President Trump and Attorney General Session, who have supported more mandatory minimums.

The majority of Americans recognize racial bias in the criminal justice system. Fifty-five percent of Americans agree that racism in policing, prosecution, and sentencing are responsible for racial disparities in our nation’s prisons and jails....

Sixty-one percent of Americans believe that people who have committed crimes involving violence can turn their lives around. Sixty-one percent of Americans also believe that people who suffer from drug addiction and commit serious crimes don’t belong in prison but should be in rehabilitation programs where they can receive treatment. And nearly nine out of 10 respondents believe that when people with mental health disabilities commit crimes that involve violence they should be sent to mental health programs where they can receive treatment from professionals.

The full ACLU poll producing these results are available at this link.  Because of the structure of some of the questions asked in this poll, I am not entirely convinced that there is quite as much public opposition to current Trump-era "tough-on-crime" approaches as the ACLU is here asserting.  But I do think this poll provides still further evidence that the public in general is eager to hear policy-makers and political candidates discuss the opportunities and need for criminal justice reform.

November 17, 2017 in Criminal justice in the Trump Administration, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

"The Criminal Justice System Stalks Black People Like Meek Mill"

The title of this post is the headline of this New York Times op-ed authored by Jay-Z. Here are excerpts:

This month Meek Mill was sentenced to two to four years in prison for violating his probation. #FreeMeek hashtags have sprung up, and hundreds of his fans rallied near City Hall in Philadelphia to protest the ruling.

On the surface, this may look like the story of yet another criminal rapper who didn’t smarten up and is back where he started. But consider this: Meek was around 19 when he was convicted on charges relating to drug and gun possession, and he served an eight-month sentence.  Now he’s 30, so he has been on probation for basically his entire adult life. For about a decade, he’s been stalked by a system that considers the slightest infraction a justification for locking him back inside.

What’s happening to Meek Mill is just one example of how our criminal justice system entraps and harasses hundreds of thousands of black people every day.  I saw this up close when I was growing up in Brooklyn during the 1970s and 1980s. Instead of a second chance, probation ends up being a land mine, with a random misstep bringing consequences greater than the crime. A person on probation can end up in jail over a technical violation like missing a curfew.

Taxpayers in Philadelphia, Meek Mill’s hometown, will have to spend tens of thousands of dollars each year to keep him locked up, and I bet none of them would tell you his imprisonment is helping to keep them safer. He’s there because of arrests for a parole violation, and because a judge overruled recommendations by a prosecutor and his probation officer that he doesn’t deserve more jail time....

Look at what he’s being punished for now: In March, he was arrested after an altercation in a St. Louis airport. After video of what had actually happened was released, all charges were dropped against Meek. In August, he was arrested for popping a wheelie on a motorcycle on his video set in New York.  Those charges were dismissed after he agreed to attend traffic school. Think about that.  The charges were either dropped or dismissed, but the judge sent him to prison anyway....

[I]t’s time we highlight the random ways people trapped in the criminal justice system are punished every day. The system treats them as a danger to society, consistently monitors and follows them for any minor infraction — with the goal of putting them back in prison.

As of 2015, one-third of the 4.65 million Americans who were on some form of parole or probation were black. Black people are sent to prison for probation and parole violations at much higher rates than white people.  In Pennsylvania, hundreds of thousands of people are on probation or parole.  About half of the people in city jails in Philadelphia are there for probation or parole violations.  We could literally shut down jails if we treated people on parole or probation more fairly....  Probation is a trap and we must fight for Meek and everyone else unjustly sent to prison.

Prior related post:

November 17, 2017 in Celebrity sentencings, Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (7)

Thursday, November 16, 2017

Notable crime fighting comments by Deputy AG Rosenstein in Chicago

Deputy Attorney General Rod Rosenstein delivered this lengthy speech at an awards dinner in Chicago on Thursday evening, and it included a number of interesting passages about crime fighting. I recommend the speech in full, and here are a few passages I thought especially worth highlighting:

In the first few decades after its creation in 1919, the Chicago Crime Commission battled bootleggers, gangs, and public corruption. It famously named Al Capone as Public Enemy Number One, which inspired the FBI to create its Ten Most Wanted List.

The challenges Chicago faces today demand a similar approach. In 2016, more than 4,300 Chicagoans were shot, and 760 were killed. On average, one person was shot every two hours, and two people were killed every day.  This year, with more than 600 homicides so far, Chicago is on track to report the second-highest murder total this century....

Gang violence accounts for the majority of the shootings and killings. Most of the violence relates to drug trafficking. Gang members do not just kill each other. T he also murder innocent bystanders -- men, women, and even children.

I mentioned earlier that I have a particular interest in a Chicago case from almost a century ago. It arose following the most notorious Chicago gang murder in history, known as the St. Valentine’s Day Massacre.  In 1929, seven victims were lined up against a wall and shot with machine guns.  The sensational crime shocked the city and provoked a public outcry to crack down on crime....

So Eliot Ness and his allies sent Capone to prison for a more readily provable crime -- tax evasion. Attorney General Robert Kennedy adopted a similar approach in 1961, when he counseled agents to fight organized crime with all available tools, even if it required prosecuting gangsters for minor offenses. In this century, after the attacks of September 11, 2001, Attorney General John Ashcroft ordered prosecutors to disrupt terrorist plots by pursuing any lawful charges to put suspects behind bars before they carry out their murderous plans.

The lesson of Ness, Kennedy and Ashcroft informs my approach to violent crime.  The lesson is that if we really want to save lives, we must have the courage to order our law enforcement agencies to employ proactive policing. To prevent crime, you need to identify killers and remove them from the community before they strike again.

I support education, job-training, rehabilitation, and other efforts to teach people not to commit crimes. But for police and prosecutors, our unique power is the ability to send people to prison.  The challenge is to focus on the right people and to make it count.  Local police agencies spend much of their time reacting to emergency calls and investigating past crimes, but they convict only a fraction of the perpetrators.

During my briefings with the leaders of the Chicago Police Department this morning, I learned that Chicago is now working to drive down violent crime through proactive policing.  We know that proactive policing works.  Proactive police and prosecutors identify violent repeat offenders, then they commit the resources needed to gather evidence of any readily prosecutable crimes.

Targeting dangerous repeat offenders for proactive enforcement is not a "zero tolerance" strategy of arresting random people for minor offenses.  It is a thoughtful strategy of identifying the career criminals and gangs that are fomenting violence in our communities, and using constitutional policing to arrest, prosecute and incarcerate them....

The lesson is that deterrence requires enforcement and rules that matter to criminals are the ones that carry expected penalties the criminals are unwilling to pay.  Deterrence is about fear of consequences. We want criminals to fear the police and the consequences of committing crimes.  If dangerous criminals are not afraid, then law-abiding citizens are in jeopardy.

When we see a surge in violent crime that follows a dramatic disruption in policing, as happened in Baltimore and Chicago, it is obvious that there is a lapse in the deterrent effect of law enforcement.  The debate about what caused the recent lapse in deterrence will endure, as will efforts to remedy root causes and improve relationships between police officers and residents of crime-ridden neighborhoods.

In the meantime, the crime surge can be suppressed if law enforcement agencies work together to secure lengthy sentences for armed felons, build proactive drug and conspiracy cases against members of gangs that foment violence, and prosecute dangerous offenders who violate probation or parole conditions.  I saw that approach work in Baltimore from 2007 to 2014. Both shootings and arrests fell dramatically.  It can work again....

Unfortunately, some people will not act good.  The national violent crime rate rose nearly seven percent over the past two years. The homicide rate increased more than 20 percent. Proactive policing can help reverse that trend....

The Attorney General also announced the creation of the National Public Safety Partnership to combat violent crime, and we hosted a National Summit on Crime Reduction and Public Safety.  The Attorney General established a new charging policy that authorizes prosecutors to charge defendants with the most serious offense.  It is not really a new policy; it is a return to the policy that worked when crime was falling....

We also are hiring additional federal prosecutors to focus on violent crime.  More police officers will patrol the streets with COPS hiring grants.  The Organized Crime and Drug Enforcement Task Forces helps implement a National Gang Strategy Initiative.  We offer training and technical assistance to state and local partners, and we collaborate with local law enforcement and exchange best practices.

There are many other things that we do to help reduce crime, but I want to conclude by talking about one of the most important.  We fight crime by promoting respect for the police. We need police to serve as role models.  Contacts with the police create indelible memories in the minds of citizens.  Police have a special responsibility to follow ethical and professional standards.  And citizens should show respect for law enforcement.  There is no excuse for people to harass law enforcement officers....

Chicago Police are still burdened by the requirement that they spend up to 45 minutes filling out a form every time they make a routine investigative stop. People who impose those requirements may be well-intentioned, but they usually fail to weigh the benefit of more bureaucracy against the cost of human lives lost to criminals who now are not stopped.

Fortunately, Superintendent Johnson’s police commanders are working to overcome their hurdles and give officers the tools and support they need to fight crime. Those tools include crime cameras, crime-mapping and predicting patrolling. I saw those tools demonstrated this morning at the Chicago Police Department’s Seventh District, where Commander Kenny Johnson and his crime analysts hold daily strategy meetings to decide where to assign patrol officers. They also run weekly shooting reviews attended by both state and federal prosecutors.

I also learned this morning that Chicago police data reports show that drug arrests lead to violent crime reductions. The most important single variable that reduces shootings in Chicago is to make a drug arrests. That is just a fact. As John Adams famously said, “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of the facts and evidence.”

It is good to see police leaders who are stubborn about facts.  Superintendent Johnson’s police officers do not mindlessly make mass drug arrests.  They arrest drug dealers who disrupt neighborhoods and foment violence.  They do exactly what Ness, Kennedy and Ashcroft did.

There are many notable aspects to this full speech, but I find especially interesting that the Deputy AG (1) references the St. Valentine’s Day Massacre without noting its link to alcohol Prohibition, (2) states that most of Chicago's violence relates to drug trafficking, and (3) asserts drug arrests lead to violent crime reductions.

November 16, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

"Justice reform is real and conservative governors are leading the way"

The title of this post is the headline of this recent Fox News commentary authored by Kentucky Governor Matt Bevin.  Here are excerpts:

During the 2016 Republican National Convention in Cleveland, I participated in a national panel on criminal justice reform with like-minded, conservative governors Nathan Deal of Georgia and Mary Fallin of Oklahoma.  It was an honor for me to discuss how best to create second chance opportunities with these two veterans of criminal justice reform.

When I was elected as governor in 2015, it was my intention that Kentucky would also be making significant changes to our criminal justice system. That is exactly what we have been doing.  With a rising prison population, severely depleted workforce participation rates, and the highest percentage in the nation of children with at least one incarcerated parent, we unfortunately had plenty of room for improvement. For years Kentucky had maintained an outdated, “lock-em-up and throw away the key” approach. That was unsustainable from both a societal and financial cost and we were determined to shake up the status quo.

Transforming our justice systems, supporting policies that safely reduce our jail and prison populations, putting ex-offenders back to work, creating safer communities—doing what is right for the people we represent is not a political statement. We began by making it easier for formerly incarcerated people to get back to work, passing a comprehensive felony expungement bill that allows certain former offenders, who have been crime-free for five years, to wipe their slates clean.  We also passed a bold reentry initiative that provides for more job training and eliminates regulatory barriers to employment for people with criminal records.

Our administration implemented “ban the box” for state government agencies to give ex-offenders a fair shot at employment, and launched the “Justice to Journeyman” initiative, which paves a pathway for inmates and detained youth to earn nationally recognized credentials in a skilled trade.  Kentucky’s success as the center for engineering and manufacturing excellence in America is only being enhanced as we pioneer changes in criminal justice policy....

I ... encourage ... all governors to tackle criminal justice reform policy with a sense of urgency and purpose. Some political advisors still speak passionately about being “tough on crime”, and caution that supporting criminal justice reform policy could be politically dangerous at election time.

This is a ridiculous notion. After all, more than 90 percent of those now incarcerated will eventually re-enter society.  We either pave a path towards second opportunities or we settle for recidivism. Which is better for our communities?

If we want voters to continue electing conservatives, we must offer serious solutions. We can no longer afford to cling to the outdated idea that prison alone is the only way to hold people accountable for their crimes.  Instead, we need to take a smarter, more measured approach to criminal justice.  More than simply removing lawbreakers from society, we must also rehabilitate and re-assimilate them back into society.

In the midst of national division in many fronts, a community of conservative governors are uniting to build trust and offer real solutions to some of our country’s greatest problems.  Transforming our justice systems, supporting policies that safely reduce our jail and prison populations, putting ex-offenders back to work, creating safer communities — doing what is right for the people we represent is not a political statement.

America has always been a land of opportunity and second chances.  When we hold individuals fully accountable for their actions while treating them with respect in the process, all of society benefits.

November 16, 2017 in Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)

Could post-Harvey Houston justice be a national model rather than a natural disaster?

The question in the title of this post is prompted by this recent Houston Chronicle article headlined "Prosecutors, attorneys cut 'Harvey deals' in jail basement as flood-damaged courthouse is repaired."  The article reviews various ways the local Houston justice system has had to adjust to the disruptions caused by Hurricane Harvey, and this passage really caught my eye:

[Defense] lawyers said the crush of criminal cases has caused judges and prosecutors to evaluate their dockets with an eye toward getting rid of as many cases as possible. "If the case is something not so serious, you've got a chance at getting a 'Harvey deal,' " said one lawyer, who spoke on condition of anonymity. "But if it's serious, you get delays."

[District Attorney Kim] Ogg confirmed that in the wake of the storm, her top lieutenants reviewed about 600 low-level drug cases in a feverish bid to make plea deals. "We dismissed about 110 of those cases, and we pled about 200 others," Ogg said. "There were about 300 that we couldn't plead."

Ogg said her office sought to expedite state jail felony drug cases, which typically involve possession of small amounts of cocaine or other drugs. "I intend to continue to try to clear our table of cases that produce the least public safety benefit but suck the most resources," she said. "And those are low-level drug cases and those that involve the mentally ill."

Because of the varied disruptions caused by Hurricane Harvey, it likely would be very hard to confidently identify the precise impact of the dismissal and expedited processing of hundreds of low-level drug cases reported here by the DA.  But I genuinely believe it would be beneficial for every chief prosecutor in every jurisdiction, without awaiting a natural disaster, to "try to clear [the] table of cases that produce the least public safety benefit but suck the most resources."  If Houston's post-Harvey experiences prove positive, maybe DA Ogg can and will report on the potential case processing benefits that emerged from the necessities created by an unfortunate disaster.

November 16, 2017 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

New report asserts California could and should cut its prison population by another 30,000

SquarelogoThis notable report by Californians for Safety and Justice, titled "Safe and Sound: Strategies to Save a Billion in Prison Costs and Build New Safety Solutions," makes the case that California could and should reduce its prison population by another 30,000 in order to close prisons and free up resources to spend on drug rehabilitation, mental health, job training and other programs. Here is an excerpt from the long report's executive summary:

Between 2006 and 2016, California has seen: A 25% drop in state prison incarceration.  A 10% statewide average drop in county jail populations.  A 64% drop in the number of people on state parole and a 22% drop in the number of felony filings in criminal courts annually.  Today more than 1.5 million Californians are eligible to remove nonviolent felony convictions from their old conviction records — opening the door to new opportunities for stability and empowerment. Rehabilitation programs are becoming more available to people in the justice system to help stop the cycle of crime. Trauma recovery centers are expanding across the state — from just one five years ago to eleven centers today—providing crisis care and help for underserved survivors of violent crime.  And, with the incarceration declines, hundreds of millions of dollars are finally being reallocated from bloated, costly prisons to community-based treatment and prevention....

Despite this progress, the Golden State’s incarceration rate is still so high that it remains a historic anomaly. California still spends more than $11 billion a year on state prisons.  That’s a 500% increase in prison spending since 1981.  In fact, California spends as much today on prisons as every state in the United States combined spent on prisons in 1981 and it has increased annual prison spending at a rate that has significantly outpaced other states.  When local crime response costs in California are factored in, such as the cost of county jails, that figure is nearly doubled from $11 billion to $20 billion annually....

In the next five years, California leaders must commit to further reducing state incarceration and prison spending to finally achieve a balanced approach to public safety.  If California leaders can continue to rightsize the state’s incarceration rate — and substantially reduce prison spending — the state would have increased capacity to invest in new safety solutions that more effectively support people vulnerable to crime, prevent crime from happening in the first place and stop the cycle from continuing.

This report outlines the strategies available to local jurisdictions to reduce the flow of people into the justice system and the burdens local criminal justice systems face. It also describes the sentencing and prison length of stay reforms that can continue to safely reduce the number of people in state prison, strategies that are supported by data on what works to reduce recidivism.

If state leaders implement the sentencing and prison length of stay reforms outlined in this report, the state could safely reduce the length of prison terms for the majority of people in prison by 20%, and reduce the number of people in state prison by about 30,000.

November 16, 2017 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)