Wednesday, May 25, 2016

Federal judge justifies below-guideline sentence of probation for drug importer because of "statutory and regulatory collateral consequences she will face as a convicted felon"

As reported in this new New York Times piece, a "federal judge in Brooklyn, in an extraordinary opinion that calls for courts to pay closer attention to the impact of felony convictions on people’s lives, sentenced a young woman in a drug case to probation rather than prison, saying on Wednesday that the collateral consequences she would face as a felon were punishment enough." Here is more about the opinon:

The judge, Frederic Block of Federal District Court, said that the broad range of such collateral consequences served no “useful function other than to further punish criminal defendants after they have completed their court-imposed sentences.” The judge noted that there were nearly 50,000 federal and state statutes and regulations that impose penalties, disabilities or disadvantages on convicted felons.

Such consequences — the denial of government benefits, ineligibility for public housing, suspension of student loans, revocation or suspension of driver’s licenses — can have devastating effects, he wrote, adding that they may also be “particularly disruptive to an ex-convict’s efforts at rehabilitation and reintegration into society.”

The issue of collateral consequences and sentencing has been considered by other courts, but Judge Block’s 42-page opinion appears to be one of the most detailed examinations yet, combined with his call for reform. He noted that the inability to obtain housing and employment stemming from a conviction often results in “further disastrous consequences, such as losing child custody or going homeless,” and leads to many ex-convicts “becoming recidivists and restarting the criminal cycle.”

The judge’s ruling does not create a binding legal precedent for other courts, but is likely to further contribute to the national debate about the criminal justice system. Gabriel J. Chin, a professor at the University of California Davis School of Law, called the opinion “groundbreaking.”

“This is by some distance the most careful and thorough judicial examination” of collateral consequences in sentencing, said Professor Chin, who has written extensively on the subject and whose work the judge cited in the opinion. “It’s going to generate debate on a critical issue in the criminal justice system — the ability of people convicted of crimes to get on with their lives,” he said.

The sentencing opinion was issued in the case of Chevelle Nesbeth, who was arrested last year at Kennedy International Airport after a search of her luggage turned up 600 grams of cocaine, court records show. A jury, rejecting her claim that she had been given the suitcases by friends and was unaware that they contained drugs, convicted her of importation of cocaine and possession of cocaine with intent to distribute, the judge wrote. She faced a sentence within 33 to 41 months under the federal advisory guidelines.

But in a hearing on Tuesday, Judge Block sentenced Ms. Nesbeth to one year of probation, six months of home confinement and 100 hours of community service.

Judge Block's full 42-page opinion in US v. Nesbeth, No. 15-cr-18 (E.D.N.Y May 24, 2016), can be downloaded below. Here are a few passages from its introduction:

Chevelle Nesbeth was convicted by a jury of importation of cocaine and possession of cocaine with intent to distribute. Her advisory guidelines sentencing range was 33-41 months. Nonetheless, I rendered a non-incarceratory sentence today in part because of a number of statutory and regulatory collateral consequences she will face as a convicted felon. I have incorporated those consequences in the balancing of the 18 U.S.C. § 3553(a) factors in imposing a one-year probationary sentence.

I am writing this opinion because from my research and ex:erience over two decades as a district judge, sufficient attention has not been paid at sentencing by me and lawyers - both prosecutors and defense counsel - as well as by the Probation Department in rendering its pre-sentence reports, to the collateral consequences facing a convicted defendant.' And I believe that judges should consider such consequences in rendering a lawful sentence.

There is a broad range of collateral consequences that serve no useful function other than to further punish criminal defendants after they have completed their court-imposed sentences. Many - under both federal and state law - attach automatically...

Because of the significance which I attach to the need of the criminal justice system to embrace collateral consequences as a sentencing issue, I write extensively, addressing in tum: (I) The History of Collateral Consequences; (II) The Depth and Breadth of Post-Conviction Statutory and Regulatory Collateral Consequences; (III) The Governing Caselaw; (IV) Ms. Nesbeth's Collateral Consequences and the Balancing of all§ 3553(a) Factors; (V) The Shaping of the Sentence; and (VI) The Responsibilities of Counsel and the Probation Department.

Download X1x43 Nesbeth opinion

May 25, 2016 in Booker in district courts, Collateral consequences, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4)

"Many serving sentences for marijuana offenses deserve clemency"

The title of this post is the headline of this recent San Francisco Chronicle commentary authored by Alex Contreras, a former federal inmate serving a 40-year sentence for drug and gun charges who received clemency from President Obama in December 2015.  Here is the text:

More than 10,000 clemency applicants wake up every day in a federal prison, awaiting an answer from President Obama on whether their lengthy prison sentence will come to an end. Most of them will be crushed when they are eventually denied.  There are a few, however, who will realize the unlikely and overwhelming joy of finally being released. I was one of those rare few whose name was on the list of Obama’s recent clemency grants.  And while I was excited to finally be going home — and extremely grateful to the president — I was also perplexed by those who weren’t on the list.

In speaking about criminal justice reform, Obama has highlighted the injustice of incarcerating marijuana offenders for “long stretches,” and has described marijuana as being “less harmful than alcohol” and a “vice,” not unlike cigarette smoking. He also instructed his Justice Department to not prosecute medical or recreational marijuana sellers who are operating under state law.  But his pool of clemency recipients does not reflect these views.

Out of the 306 clemency grants, less than 3 percent were marijuana offenders, and not one of them was a medical marijuana provider, despite being the most deserving given that they were following state law and the Obama administration is no longer prosecuting them. Some of them are even serving decades in prison.

One such inmate is Ricardo Montes, a Latino serving a harsh mandatory 20-year sentence for operating a medical marijuana dispensary in Modesto under California law.  Montes and his co-defendant received the longest sentences ever doled out to any medical marijuana provider, because — during the aggressive George W. Bush administration — they were charged under a fearsome mandatory minimum statue designed for drug kingpins and dangerous cartels.

Individuals like Montes are even more deserving of clemency than I was.  Yet I fear that men such as Montes will be left to serve the remainder of their lengthy prison terms, while others reap the rewards of the change in the legal landscape of our nation’s marijuana policies. I hope that Obama’s remaining clemency grants will reflect his sensible views regarding marijuana, ensuring that our criminal justice system “keeps its basic promise of equal treatment for all.”

May 25, 2016 in Clemency and Pardons, Drug Offense Sentencing, Examples of "over-punishment", Pot Prohibition Issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Making a friendly pitch for SCOTUS to consider constitutional limits on extreme judicial sentencing increase based on uncharged homicide

Regular readers know that I have long been troubled by significant sentence increases by judges based on so-called acquitted conduct, and that I have filed a number of federal appellate briefs articulating my concerns. Building on some of that prior work, I recently had a chance to work on an amicus brief in support of certiorari in Hebert v. US, a case out of the Fifth Circuit involving an extreme sentence increase based on uncharged conduct. The full amicus (which the fine folks at the Jones Day in DC made so fine) can be downloaded below, and here are excerpts from its start providing context and key arguments:

It is difficult to imagine a starker violation of the Sixth Amendment and due process than what transpired below. Mr. Hebert pleaded guilty to a $16,000 fraud that carried a guidelines range topping out at 5 years.  After persuading Mr. Hebert to admit responsibility for his fraud and accept punishment for that crime, the Government ambushed him at sentencing by asserting that he had committed an intentional murder along with the fraud to which he had confessed. The Government then asked the district court to find it was more likely than not that Mr. Hebert committed this un-charged, non-admitted, never-convicted, non-federal crime. Then, on the basis of that judicial determination, the district court gave Mr. Hebert a 92-year sentence — a sentence the Government has conceded and the Fifth Circuit recognized “would have been substantively unreasonable under the post-Booker sentencing regime absent a judicial finding of murder,” Pet.App.22a — again, a crime with which Mr. Hebert has never even been charged.

Because Mr. Hebert has never been charged with — much less convicted of — murder, he remains entirely innocent of that crime. If the Government wishes to convict Mr. Hebert of murder, it is welcome to try.  But what it cannot do is use Mr. Hebert’s confession to lesser crimes as the springboard for de facto convicting him of a far more serious crime in a judicial proceeding with no jury, the civil standard of proof, and none of the criminal justice system’s fundamental rules and procedures....

There are at least two constitutional provisions that, under this Court’s well-established jurisprudence, forbid this inverted regime.  First, this Court has made clear that a criminal defendant has a Sixth Amendment “right to have a jury find the facts behind his punishment.” Hurst v. Florida, 136 S. Ct. 616, 621 (2016).  That right reflects the vital role of the jury as the “circuitbreaker in the State’s machinery of justice” — a role that cannot be “relegated to making a determination that the defendant at some point did something wrong [as] a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish.” Blakely v. Washington, 542 U.S. 296, 306–07 (2004).  The Sixth Amendment right to a jury trial is a constitutional protection of “surpassing importance,” Apprendi, 530 U.S. at 476, yet the decision below makes a mockery of it....

Second, this Court has long recognized that due process forbids grossly unfair procedures when a person’s liberty is at stake. Specifically, this Court has indicated that (1) judges are sometimes limited from imposing distinct new punishments based on “a new finding of fact that was not an ingredient of the offense charged,” Specht v. Patterson, 386 U.S. 605, 608 (1967) (citation omitted); (2) the “safeguards of due process” in criminal cases are “concerned with substance rather than [any] kind of formalism,” Mullaney v. Wilbur, 421 U.S. 684, 698–99 (1975); and (3) constitutional concerns are raised whenever sentencing findings become “a tail which wags the dog of the substantive offense,” or when the government restructures criminal prosecutions “to ‘evade’ the commands” of the Constitution. McMillan v. Pennsylvania, 477 U.S. 79, 88–89 (1986).

The simple principle that unifies these decisions is fatal to the legal rule embraced below: Due process forbids prosecutors from manipulating the criminal justice system to evade its core protections.  Applied here, that principle barred prosecutors from waylaying Mr. Hebert at sentencing with allegations of a far more serious crime for which he has never been indicted or convicted — allegations that depend, moreover, on evidence which the prosecutors were apparently unwilling to subject to the crucible of a criminal trial or test against the burden of proof they must carry there.  Due process demands more.

Download Berman Amicus in Support of Cert in Hebert

May 25, 2016 in Blakely in the Supreme Court, Booker and Fanfan Commentary, Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (16)

DOJ Inspector General report details (impressively?) rare cases of untimely release of federal prisoners

This New York Times article about a new DOJ report carries a headline that at first led me to wonder what is heck is going on with the federal Bureau of Prisons: "Thousands Held in Federal Prisons for Too Long, Report Finds."  But then, upon reading quickly the executive summary of the DOJ Inspector General's report reference in the headline, I am actually impressed with how well BOP seems to be doing a key part of its job. This full DOJ Report is titled "Review of the Federal Bureau of Prisons’ Untimely Releases of Inmates," and here is its first two paragraphs:

Following news reports that the Federal Bureau of Prisons (BOP) had confined an inmate for 13 months past his correct release date, the Department of Justice (Department) Office of the Inspector General (OIG) initiated an examination of the BOP’s process for ensuring federal inmates are released on their correct release dates and the incidences of releases before or after the correct release date due to staff error between 2009 and 2014.  We found that of the 461,966 inmate releases between 2009 and 2014, the BOP categorized 157 as untimely due to staff error.  We also learned that the BOP classifies a far greater number — 4,183 — as untimely for other reasons.

According to the BOP, the vast majority of non-staff error “untimely” releases were due to situations that are beyond its control, such as amended sentences that result in shorter sentences than the time an inmate had already served. Also, data and information we reviewed indicates that other entities inside and outside the Department may sometimes contribute to untimely releases.  Although BOP officials told us that it was highly unlikely that staff error on the part of a Department entity contributed to any of the 4,183 cases, they could not rule out the possibility and we found that the BOP does not always have complete information about the circumstances of untimely releases to which other entities contribute.  We therefore concluded that the Department should work with all relevant entities, both within and outside the Department, to review the full range of possible reasons for untimely releases and how to address those that are in any way preventable.

While I know lots of folks have lots of sound reasons to criticize BOP, I have a very hard time knocking the agency too much for staff efforts which impacted only roughly 1 out of every 3000 releases.  Of course, as the DOJ report explains, every reasonable effort should be made to avoid BOP staff errors leading to untimely releases.  But I think we should general celevrate any government agency with a 99.93% accuracy rate in one of its core responsibilities.

May 25, 2016 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

Tuesday, May 24, 2016

Federal prosecutors (FINALLY!) decide to pursue death penalty for Charleston mass murderer Dylann Roof

Almost a year after Dylann Roof committed one of the worst mass murder hate crimes in modern US history, federal prosecutors have offically decided to make his federal prosecution a capital one.  Here are excerpts from this CNN report about this (too-long-in-development) decision:

Federal prosecutors will seek the death penalty for Dylann Roof, who is accused of killing nine people at a historic African-American church in Charleston, South Carolina, in July 2015.

Roof, who is white, is charged with 33 federal offenses, including hate crime charges for allegedly targeting his victims on the basis of their race and religion. A judge entered a not guilty plea on his behalf in July 2015. "The nature of the alleged crime and the resulting harm compelled this decision," Attorney General Loretta Lynch said.

Roof, 22, is accused of shooting participants of a Bible study class at Emanuel African Methodist Episcopal Church, known as Mother Emanuel, in downtown Charleston on June 17, 2015. Among the victims was the church's pastor, the Rev. Clementa Pinckney, who also was a state senator.

South Carolina has charged Roof with murder. Charleston County Solicitor Scarlett Wilson said last year that she will seek the death penalty in the state's case, which is scheduled to go to trial in January.

There is no date yet for his federal trial. Attempts to reach Roof's attorneys for comment were not immediately successful.

Roof, a high school dropout not known for violence, was captured in North Carolina the day after the shootings. He confessed in interviews with the Charleston police and FBI, two law enforcement officials told CNN. He also told investigators he wanted to start a race war, one of those officials said.

Three federal inmates have been executed in the United States since the federal death penalty was reinstated in 1988 after a 16-year moratorium. They were Timothy McVeigh, Juan Raul Garza and Louis Jones. Boston Marathon bomber Dzhokhar Tsarnaev is one of the most recent people to be sentenced to death by a federal judge. There are about 60 people on federal death row.

I fully share the Attorney General's view that the "nature of the alleged crime and the resulting harm compelled this decision," and that is why I have been critical in prior posts about it taking so long to make this decision. A well-functioning criminal justice system surely ought to be able to prosecute and sentence a mass murderer in the span of a year in a case like this one in which there is no doubt about guilt. But, remarkably, it seems it now takes a year just to decide whether the death penalty should be even sought. Sigh.

A few prior related posts:

May 24, 2016 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7)

Reviewing the state and future of lethal injection as execution method

Lincoln Caplan has this New Yorker piece headlined "The End Of The Open Market For Lethal-Injection Drugs," which provides a useful primer on where matters stand regarding lethal injection as a means carrying out death sentences on condemned murderers. Here are excerpts from the start, middle and end of the lengty piece:

Last week, the global drug company Pfizer announced sweeping new restrictions on the distribution of seven of its products, preventing them from being used to carry out the death penalty. Pfizer came into possession of those products, which include sedatives, paralytics, a pain medication, and a drug used to prevent or treat low levels of potassium in the blood, when it acquired the pharmaceutical company Hospira, in September.  Its decision is an enormously significant one for the death penalty in the United States, and ends a long and chaotic chapter in which governments, drug companies, and activists worldwide have gradually closed the open market for the federally approved drugs that have been used for lethal injections.

Twenty of the thirty-one states with the death penalty on the books now have a formal or informal moratorium on executions, in almost all cases because they have been unable to obtain approved drugs to use in lethal injections. In 2015, there were twenty-eight executions in the U.S., the lowest number since 1994.  This year, there have been fourteen executions so far — six in Texas, five in Georgia, and one each in Alabama, Florida, and Missouri. Prisons in those states can’t buy drugs for lethal injections from American manufacturers.  They can’t import drugs from foreign manufacturers — which, in any case, will not supply them.  In short, their options are severely restricted, which will almost certainly lead to more botched executions.

Texas, Georgia, and Missouri are among the small number of states that have carried out executions using drugs made by compounding pharmacies, which combine, mix, or alter drugs, typically to meet the need of an individual patient — say, by removing an ingredient to which a patient is allergic.  These pharmacies are not required to register with the F.D.A., and the F.D.A. does not approve their products.  They must be licensed by the pharmacy board in the state where they operate, but state oversight has often been scandalously lax.  In February, Oklahoma Attorney General Scott Pruitt said he wants the state to open its own compounding pharmacy, in order to guarantee a supply of the drugs that the state needs for lethal injections. (This despite the fact that no department of corrections could meet a basic requirement for obtaining a drug made by a compounding pharmacy: a medical prescription for an individual patient.)

Oklahoma’s turn toward compounding pharmacies is part of the fallout from Glossip v. Gross, one of the most important death-penalty cases decided by the Supreme Court in the past generation....

The campaign to halt lethal injections as a mode of capital punishment by restricting access to the lethal drugs has not yet ended the death penalty.  But it may very well have accelerated the end game that Breyer invoked in his Glossip dissent.  In the five years between Hospira’s decision to stop making sodium thiopental and Pfizer’s decision to stop supplying drugs for executions, the unsuccessful effort, by one state after another, to carry out lethal injections in a manner that meets standards of fairness and reliability has made it increasingly clear that states cannot constitutionally perform these types of executions.  If they can’t do that, how can the Supreme Court continue to permit capital punishment under the Constitution?  The Court is unlikely to take on an issue this fundamental when it is at the mercy of a polarized Senate and self-important Republican leaders who refuse to confirm the President’s nominee for the Court’s ninth Justice.  But the churn that the campaign has quickened will inevitably give rise to a legal controversy that will force the Justices to face just such a question.

Interestingly, I have since Glossip was decided that the case would prove to be "one of the most important death-penalty cases decided by the Supreme Court in the past generation" only if states viewed the ruling as presenting a unique and new opportunity to move away from lethal injection as an execution method in light of all the drug shortages. Significantly, the Supreme Court has never formally declared any particular execution method unconstitutional, and I thought the Glossip ruling might prompt a number of jurisdictions to see a chance to seriously move forward with a return to firing squads or experimentations with nitrogen gas. But absent any such developments (and absent Justice Breyer finding thre more Justices to join his effort to judicially abolish capital punishment in the US), I have a hard time seeing Glossip as nearly as big practical deal as other recent SCOTUS cases placing limits on capital sentences and procedures like Kennedy and Hurst.

May 24, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Dynamic commentary on SCOTUS work in Foster and related Monday news

A number of bright folks have already had some dynamic takes the Supreme Court's rulings yesterday in the Georgia capital case, Foster v. Chapman.  Organized alphabetically by location of the commentary, here are a few early takes that caught my eye:

The pieces by Epps and Otis are extra-notable because they link into their discussions the SCOTUS Miller remands and the not guilty verdict in a Freddy Gray prosecution, respectively.

UPDATE Scott Greenfield made via Twitter the excellent point that the list above included only "commentaries on Foster from people who don't pick juries & nothing from anyone who does." So, with Scott's help, I am here rounding out my round-up of Foster takes:

May 24, 2016 in Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Virginia Republicans go directly to state Supreme Court to try to undo Gov's clemency order restoring vote to former felons

As first reported in this post last month, Gov Terry McAuliffe of Virginia used his executive clemency powers to restore voting rights to more than 200,000 former felons who had been permanently disenfranchised under Virginia's state election laws.  Now, as reported in this Washington Post piece, political opponents are going to court to try to undo this effort to allow more people to participate in democracy.  Here are the details:

Leaders of Virginia’s House and Senate went to the state’s highest court Monday in a bid to reverse Gov. Terry McAuliffe’s sweeping order to restore voting rights to 206,000 felons. Skipping lower courts, they filed a complaint with the Supreme Court of Virginia, contending that McAuliffe (D) exceeded his authority in April when he restored voting rights to felons en masse instead of individually.

The lawsuit — bankrolled by private donors — presents a complex constitutional question with the urgency of presidential election-year politics. Republicans are seeking an expedited review so that reinstated ex-cons who have registered to vote can be stripped from the rolls before November.

Virginia governors have restored felons’ voting rights, but none with anything close to McAuliffe’s scale and speed. “From Patrick Henry and Thomas Jefferson to Tim Kaine and Bob McDonnell, every Governor of Virginia has understood the clemency power to authorize the Governor to grant clemency on an individualized basis only,” said the lawsuit, filed on behalf of House Speaker William J. Howell (R-Stafford), Senate Majority Leader Thomas K. Norment Jr. (R-James City) and four other Virginia voters....

The governor says that his move helps former convicts to fully reenter society. Republicans call it a favor to Democratic presidential front-runner Hillary Clinton, McAuliffe’s close friend and political ally, who could benefit from higher numbers of minority voters in the crucial swing state.

McAuliffe blasted the lawsuit, suggesting that Republicans were trying to hold onto a remnant of the Jim Crow era, since African Americans have been disproportionately affected by felon disenfranchisement. One in four African Americans in Virginia had been banned from voting because of laws restricting the rights of those with convictions.

“Today Republicans filed a lawsuit to preserve a policy of disenfranchisement that has been used intentionally to suppress the voices of qualified voters, particularly African Americans, for more than a century,” McAuliffe said in a written statement. “These individuals have served their time and are now living, raising families and paying taxes in our communities — this suit is an effort to continue to treat them as second-class citizens.”...

The lawsuit, filed by Charles J. Cooper, who ran the Office of Legal Counsel under President Ronald Reagan, pushed back against the claim that felon disenfranchisement was rooted in racism. “Governor McAuliffe has falsely suggested that Virginia’s felon disenfranchisement provision was first introduced into the Constitution after the Civil War for the purpose of disenfranchising African-Americans,” the lawsuit says. “But Virginia has prohibited felons from voting since at least 1830 — decades before African-Americans could vote.”...

McAuliffe’s predecessor, Republican Robert F. McDonnell, simplified and sped up the application process for nonviolent offenders. When he was governor, Democrat Timothy M. Kaine, now a U.S. senator, considered a broader action but opted against it on the advice of his senior counsel, Mark Rubin. “A blanket order restoring the voting rights of everyone would be a rewrite of the law rather than a contemplated use of the executive clemency powers,” Rubin wrote in 2010. “And, the notion that the Constitution of the Commonwealth could be rewritten via executive order is troubling.”

McAuliffe’s order also allows ex-felons to serve on juries, run for public office and apply for restoration of their gun rights. It applies to all ex-felons, including those guilty of violent offenses such as murder and rape — a point emphasized by Republicans. The lawsuit notes that attorneys for a man accused of killing a state police trooper in Dinwiddie County are seeking to have felons whose civil rights were restored added to the pool of eligible jurors for his trial.

The McAuliffe administration notes that felons would still need a judge’s approval before winning back their gun rights and would still be vetted by the jury selection process before being added to such a panel. McAuliffe said that nearly 80 percent of those affected by his order were convicted of nonviolent offenses. Still, Republicans say, that means McAuliffe restored rights to 40,000 violent felons.

Prior related posts:

May 24, 2016 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Monday, May 23, 2016

"An Experimental Study of the Effectiveness of Certificates of Recovery as Collateral Consequence Relief Mechanisms"

The title of this post is the title of this notable new paper now available via SSRN authored by Peter Leasure and Tia Stevens Andersen. Here is the abstract:

Securing stable, quality employment is one of the most robust predictors of desistance from offending. Yet, obtaining gainful employment is difficult for ex-offenders due to the stigma of a criminal record. In recognition of employment-related barriers to re-entry, some state legislatures have created certificates of recovery/relief, which lift occupational licensing restrictions, limit employer liability for negligent hiring claims, and aim to ensure employment decisions about certificate-holders are made on a case-by-case basis.

The present study presents the results of the first empirical test of the effectiveness of such certificates. Using an experimental correspondence design, fictitious applicants applied to entry-level jobs advertised in the Columbus metropolitan area using fabricated resumes with identical names, educational backgrounds, employment experience, and skills. Because the only differences between the resumes were the type of criminal record and the presence of a Certificate of Qualification for Employment (CQE), the results isolate the specific impacts of criminal records and certificates on employment opportunities. Results indicate that, for job seekers with a one-year-old felony drug conviction, having a certificate of recovery increases the likelihood of receiving an interview invitation or job offer more than threefold. Importantly, certificate-holders and their counterparts with clean criminal backgrounds were equally likely to receive an interview invitation or job offer. These promising preliminary results suggest certificates of recovery/relief may be an effective avenue for lessening the stigma of a criminal record for ex-offenders seeking employment.

May 23, 2016 in Collateral consequences, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (2)

SCOTUS has "firm conviction" strikes in Georgia capital case were "motivated in substantial part by discriminatory intent"

The Supreme Court's one criminal justice ruling today comes in Foster v. Chatman, 14-8349 (S. Ct. May 23, 2016) (available here), a capital case out of Georgia involving a Batson claim. Chief Justice Roberts wrote the opinion for the Court, which garnered six votes, and its ruling is reasonably summarized via these passages: 

As we explained in Miller-El v. Dretke, “[i]f a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack [panelist] who is permitted to serve, that is evidence tending to prove purposeful discrimination.” 545 U. S. 231, 241 (2005). With respect to both Garrett and Hood, such evidence is compelling. But that is not all. There are also the shifting explanations, the misrepresentations of the record, and the persistent focus on race in the prosecution’s file. Considering all of the circumstantial evidence that “bear[s] upon the issue of racial animosity,” we are left with the firm conviction that the strikes of Garrett and Hood were “motivated in substantial part by discriminatory intent.” Snyder, 552 U. S., at 478, 485....

The contents of the prosecution’s file, however, plainly belie the State’s claim that it exercised its strikes in a “color-blind” manner. App. 41, 60 (pretrial hearing). The sheer number of references to race in that file is arresting....

The State’s new argument today does not dissuade us from the conclusion that its prosecutors were motivated in substantial part by race when they struck Garrett and Hood from the jury 30 years ago. Two peremptory strikes on the basis of race are two more than the Constitution allows.

Justice Alito has an interesting corcurrence about procedures that I will likely discuss in another post. Justice Thomas, in notable contrast, dissents on the merits, and his dissent starts this way:

Thirty years ago, Timothy Foster confessed to murdering Queen Madge White after sexually assaulting her with a bottle of salad dressing. In the decades since, Foster has sought to vacate his conviction and death sentence on the ground that prosecutors violated Batson v. Kentucky, 476 U. S. 79 (1986), when they struck all black prospective jurors before his trial.  Time and again, the state courts have rejected that claim.  The trial court twice rejected it, and the Supreme Court of Georgia unequivocally rejected it when Foster directly appealed his conviction and sentence. Foster v. State, 258 Ga. 736, 736, n. 1, 738–739, 374 S. E. 2d 188, 190, n. 1, 192 (1988), cert. denied, 490 U. S. 1085 (1989).  A state habeas court rejected it in 2013. App. 175–176, 192–196.  And most recently, the Supreme Court of Georgia again rejected it as lacking “arguable merit,” Ga. Sup. Ct. Rule 36 (2001). See App. 246.

Yet, today — nearly three decades removed from voir dire — the Court rules in Foster’s favor.  It does so without adequately grappling with the possibility that we lack jurisdiction. Moreover, the Court’s ruling on the merits, based, in part, on new evidence that Foster procured decades after his conviction, distorts the deferential Batson inquiry.  I respectfully dissent.

May 23, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

SCOTUS concurrences explore what Montgomery GVRs might mean for juve murderers originally sentenced to death

Continuing its recent trend, the short-staffed Supreem Court opted in this new order list not to grant certiorari review in any new cases.  But the list still has some intrigue for sentencing fans thanks to dueling concurrences in a set of cases vacated and remanded for further consideration in light of Montgomery v. Louisiana.  The start of Justice Alito's corcurrence in Adams v. Alabama sets up what makes these cases potentially different from other post-Montgomery GVRs:

The present case differs from most of those in which the Court grants, vacates, and remands for reconsideration in light of Montgomery.  The petitioner in this case — as with a few others now before the Court — was sentenced to death prior to our decision in Roper v. Simmons, 543 U. S. 551 (2005), which held that the Eighth Amendment prohibits a death sentence for a minor. During that pre-Roper period, juries in capital cases were required at the penalty phase to consider “all relevant mitigating evidence,” including “the chronological age of a minor” and a youthful defendant’s “mental and emotional development.” Eddings v. Oklahoma, 455 U. S. 104, 116–117 (1982); see also Roper v. Simmons, supra, at 603 (O’Connor, J., dissenting) (“A defendant’s youth or immaturity is, of course, a paradigmatic example” of the type of mitigating evidence to which a “sentencer in a capital case must be permitted to give full effect”). After Roper, death sentences imposed on prisoners convicted of murders committed as minors were reduced to lesser sentences.

Justice Alito goes on to explain his view that this case history might be of constitutional consequence now:

In cases like this, it can be argued that the original sentencing jury fulfilled the individualized sentencing requirement that Miller subsequently imposed.  In these cases, the sentencer necessarily rejected the argument that the defendant’s youth and immaturity called for the lesser sentence of life imprisonment without parole.  It can therefore be argued that such a sentencer would surely have felt that the defendant’s youth and immaturity did not warrant an even lighter sentence that would have allowed the petitioner to be loosed on society at some time in the future.  In short, it can be argued that the jury that sentenced petitioner to death already engaged in the very process mandated by Miller and concluded that petitioner was not a mere “‘child’” whose crimes reflected “‘unfortunate yet transient immaturity,’” post, at 2 (SOTOMAYOR, J., concurring in decision to grant, vacate, and remand), but was instead one of the rare minors who deserves life without parole.

Justice Stotmayor is not so sure that Justice Alito's view on this matter should carry the day on remand, and she explains why in her concurrence:

Miller v. Alabama, 567 U. S. ___ (2012), did not merely impose an “individualized sentencing requirement”; it imposed a substantive rule that life without parole is only an appropriate punishment for “the rare juvenile offender whose crime reflects irreparable corruption.” Montgomery, 577 U.S., at ___ (slip op., at 17) (internal quotation marks omitted). “Even if a court considers a child’s age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects unfortunate yet transient immaturity.” Id., at ___–___ (slip op., at 16–17) (same).  There is no indication that, when the factfinders in these cases considered petitioners’ youth, they even asked the question Miller required them not only to answer, but to answer correctly: whether petitioners’ crimes reflected “transient immaturity” or “irreparable corruption.” 577 U.S., at ___–___ (slip op., at 16–17).

The last factfinders to consider petitioners’ youth did so more than 10 — and in most cases more than 20 — years ago. (Petitioners’ post-Roper resentencings were generally automatic.)  Those factfinders did not have the benefit of this Court’s guidance regarding the “diminished culpability of juveniles” and the ways that “penological justifications” apply to juveniles with “lesser force than to adults.”  Roper, 543 U.S., at 571.  As importantly, they did not have the benefit of this Court’s repeated exhortation that the gruesomeness of a crime is not sufficient to demonstrate that a juvenile offender is beyond redemption: “The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character.” Id., at 570; see also id., at 573; Miller, 567 U. S., at __ (slip op., at 17).

May 23, 2016 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

ProPublica takes deep dive to idenitfy statistical biases in risk assessment software

Propublica-logoThe fine folks at ProPublica have this new important piece of investigative journalism about risk assessment tools.  The piece is headlined "Machine Bias: There’s software used across the country to predict future criminals. And it’s biased against blacks." Here is an extended excerpt, with links from the original:

[R]isk assessments are increasingly common in courtrooms across the nation. They are used to inform decisions about who can be set free at every stage of the criminal justice system, from assigning bond amounts ... to even more fundamental decisions about defendants’ freedom.  In Arizona, Colorado, Delaware, Kentucky, Louisiana, Oklahoma, Virginia, Washington and Wisconsin, the results of such assessments are given to judges during criminal sentencing.

Rating a defendant’s risk of future crime is often done in conjunction with an evaluation of a defendant’s rehabilitation needs. The Justice Department’s National Institute of Corrections now encourages the use of such combined assessments at every stage of the criminal justice process. And a landmark sentencing reform bill currently pending in Congress would mandate the use of such assessments in federal prisons.

In 2014, then U.S. Attorney General Eric Holder warned that the risk scores might be injecting bias into the courts. He called for the U.S. Sentencing Commission to study their use. “Although these measures were crafted with the best of intentions, I am concerned that they inadvertently undermine our efforts to ensure individualized and equal justice,” he said, adding, “they may exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in our society.” 

The sentencing commission did not, however, launch a study of risk scores.  So ProPublica did, as part of a larger examination of the powerful, largely hidden effect of algorithms in American life.

We obtained the risk scores assigned to more than 7,000 people arrested in Broward County, Florida, in 2013 and 2014 and checked to see how many were charged with new crimes over the next two years, the same benchmark used by the creators of the algorithm.   The score proved remarkably unreliable in forecasting violent crime: Only 20 percent of the people predicted to commit violent crimes actually went on to do so.

When a full range of crimes were taken into account — including misdemeanors such as driving with an expired license — the algorithm was somewhat more accurate than a coin flip. Of those deemed likely to re-offend, 61 percent were arrested for any subsequent crimes within two years.

We also turned up significant racial disparities, just as Holder feared. In forecasting who would re-offend, the algorithm made mistakes with black and white defendants at roughly the same rate but in very different ways.

  • The formula was particularly likely to falsely flag black defendants as future criminals, wrongly labeling them this way at almost twice the rate as white defendants.
  • White defendants were mislabeled as low risk more often than black defendants.

Could this disparity be explained by defendants’ prior crimes or the type of crimes they were arrested for? No. We ran a statistical test that isolated the effect of race from criminal history and recidivism, as well as from defendants’ age and gender. Black defendants were still 77 percent more likely to be pegged as at higher risk of committing a future violent crime and 45 percent more likely to be predicted to commit a future crime of any kind. (Read our analysis.)

The algorithm used to create the Florida risk scores is a product of a for-profit company, Northpointe. The company disputes our analysis.  In a letter, it criticized ProPublica’s methodology and defended the accuracy of its test: “Northpointe does not agree that the results of your analysis, or the claims being made based upon that analysis, are correct or that they accurately reflect the outcomes from the application of the model.”

Northpointe’s software is among the most widely used assessment tools in the country. The company does not publicly disclose the calculations used to arrive at defendants’ risk scores, so it is not possible for either defendants or the public to see what might be driving the disparity. (On Sunday, Northpointe gave ProPublica the basics of its future-crime formula — which includes factors such as education levels, and whether a defendant has a job. It did not share the specific calculations, which it said are proprietary.)

May 23, 2016 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)

Sunday, May 22, 2016

A bunch of timely and notable new Quick Facts from the US Sentencing Commission

The US Sentencing Commission has its pretty new website up and running, and my only knock on the site is that it is not easy anymore to see exacly what is new on the site.  Fortunately, I somehow discovered that the Commission released two notable new Quick Facts covering federal drug sentencing and mandatory minimum sentences.  (As the USSC explains, "Quick Facts" are publications that "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.")

In addition to these two new items, the Commission also released two other timely "Quick Facts" last month, and here are links to all four of these reader-friendly USSC products:

May 22, 2016 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics, Who Sentences? | Permalink | Comments (1)

"Clearly, there seems to be a lack of knowledge about or adherence to the duties of professional responsibility in the halls of the Justice Department."

Andrew-HanenThe sentence that serves as the title of this post comes from this remarkable 28-page "Memorandum Opinion and Order" entered late last week by US District Judge Andrew Hanen as part of the litigation brought by Texas and others states to challenge President Obama's DAPA and DACA immigration directives.  Though I have not followed this "civil" litigation closely, this order certainly heightens my concerns that in federal criminal cases some DOJ lawyers embrace an "ends-justify-the-means" approach to litigation on behalf of the federal government.  Then again, the (sure-to-be-appealed) requirements that Judge Hanen has for DOJ appearing at the end of this remarkable opinion perhaps should make me more hopeful concerning the future work of DOJ lawyers in all settings:

Therefore, this Court, in an effort to ensure that all Justice Department attorneys who appear in the courts of the Plaintiff States that have been harmed by this misconduct are aware of and comply with their ethical duties, hereby orders that any attorney employed at the Justice Department in Washington, D.C. who appears, or seeks to appear, in a court (state or federal) in any of the 26 Plaintiff States annually attend a legal ethics course. It shall be taught by at least one recognized ethics expert who is unaffiliated with the Justice Department. At a minimum, this course (or courses) shall total at least three hours of ethics training per year. The subject matter shall include a discussion of the ethical codes of conduct (which will include candor to the court and truthfulness to third parties) applicable in that jurisdiction. The format of this continuing education shall be left to the independent expert lecturer. Self-study or online study will not comply with this Order, but attendance at a recognized, independently sponsored program shall suffice....

The Attorney General of the United States shall appoint a person within the Department to ensure compliance with this Order. That person shall annually file one report with this Court including a list of the Justice Department attorneys stationed in Washington, D.C. who have appeared in any court in the Plaintiff States with a certification (including the name of the lawyer, the court in which the individual appeared, the date of the appearance and the time and location of the ethics program attended) that each has attended the above-ordered ethical training course. That certification shall be filed in this cause during the last two weeks of each calendar year it covers. The initial report shall be filed no later than December 31, 2016. This Order shall remain in force for a period of five years (the last report being due December 31, 2021). The decision of the lawyers who apparently determined that these three-year renewals under the 2014 DHS Directive were not covered by the Plaintiff States’ pleadings was clearly unreasonable. The conduct of the lawyers who then covered up this decision was even worse. Therefore, the Attorney General is hereby ordered to report to this Court in sixty (60) days with a comprehensive plan to prevent this unethical conduct from ever occurring again. Specifically, this report should include what steps the Attorney General is taking to ensure that the lawyers of the Justice Department will not, despite what court documents may portend or what a court may order, unilaterally decide what is “material” and “relevant” in a lawsuit and then misrepresent that decision to a Court. Stated differently, the Attorney General is also hereby ordered to report what steps she is taking to ensure that, if Justice Department lawyers make such an internal decision without approval from the applicable court, the Justice Department trial lawyers tell the truth—the entire truth—about those decisions to the court and opposing counsel.

Finally, whatever it is that the Department of Justice Office of Professional Responsibility has been doing, it has not been effective. The Office of Professional Responsibility purports to have as its mission, according to the Department of Justice’s website, the duty to ensure that Department of Justice attorneys “perform their duties in accordance with the high professional standards expected of the Nation’s principal law enforcement agency.” Office of Professional Responsibility, DEP’T OF JUSTICE, https://www.justice.gov/opr (last visited May 17, 2016). Its lawyers in this case did not meet the most basic expectations. [FN 18] The Attorney General is hereby ordered to inform this Court within sixty (60) days of what steps she is taking to ensure that the Office of Professional Responsibility effectively polices the conduct of the Justice Department lawyers and appropriately disciplines those whose actions fall below the standards that the American people rightfully expect from their Department of Justice.

[FN 18] Other courts have noticed these problems as well. Just in the last six months, both the Fifth Circuit and the Sixth Circuit have questioned the conduct of those employed by the Department of Justice. United States v. Bowen, 799 F.3d 336 (5th Cir. 2015); In re United States, No. 15-3793, 2016 WL 1105077 (6th Cir. Mar. 22, 2016). The Fifth Circuit went further and suggested that not only was there misleading conduct, but the conduct was followed by an inadequate investigation and a cover-up. These are just two of an ever-growing number of opinions that demonstrate the lack of ethical awareness and/or compliance by some at the Department of Justice.

May 22, 2016 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9)

Saturday, May 21, 2016

DAG Yates spotlights in commencement speech role of Georgia School of Law in clemency achievement

Today, Deputy Attorney General Sally Yates returned to her alma mater, the University of Georgia School of Law, to deliver this Commencement address. Like all good Commencement addresses, the whole piece is a lovely read. But sentencing fans should be especially interested in these closing comments:

I’d like to close by telling you about a recent intersection between the work of some students graduating here today and my work in Washington.  As some of you may know, the Obama Administration has embarked on a clemency initiative designed to address the disproportionately long sentences given to lower-level, non-violent drug offenders who were sentenced under outdated drug laws.  As Deputy Attorney General, I am charged with making a recommendation to President Obama on each petition. One such recent clemency petition was prepared by two of today’s graduates. These students participated in the representation of a man named Steven Boyd.  In 1998, Mr. Boyd was convicted of selling crack and sentenced to life in prison. He had absolutely no history of violence and other than a few small time drug deals, no other criminal history. Yet the harsh mandatory minimum statutes in effect at the time mandated a life sentence.  That’s life with no possibility of parole. The students prepared Mr. Boyd’s petition for clemency and submitted it to the Justice Department.  That petition made its way to my desk and then on to the White House. And just three weeks ago, the president granted Mr. Boyd’s clemency petition. Mr. Boyd served 18 years and paid his debt to society. As a result of your classmates’ hard work and their commitment to their duty as lawyers, Mr. Boyd will be a free man. Your classmates unlocked justice for Steven Boyd.

Each and every one of you has both the capacity and the obligation, in the words of Attorney General Kennedy, to breathe meaning and force into the pursuit of justice.  I hope that you will seize opportunities to right wrongs large and small, that you will stand up for the voiceless and that you will uphold the promise of our country. I hope that you will use the key that you are about to receive to unlock justice.

May 21, 2016 in Clemency and Pardons, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

"Trespass, Not Fraud: The Need for New Sentencing Guidelines in CFAA Cases"

The title of this post is the title of this new paper authored by Orin Kerr now available via SSRN. Here is the abstract:

This article argues that the existing regime for sentencing violations of the Computer Fraud and Abuse Act (CFAA) is based on a conceptual error that often leads to improper sentencing recommendations. The Federal Sentencing Guidelines treat CFAA violations as economic crimes.  Most CFAA crimes are rooted in trespass, however, not economic loss such as fraud crimes.  The difference is significant.  The economic crimes framework now in place leads guidelines calculations to focus too much on economic loss and not enough on the circumstances of the crime.  The article concludes by sketching out a new and better way to calculate sentencing recommendations in CFAA cases.

May 21, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (0)

Despite a quarter-century being "tough," Hillary Clinton still attacked by Donald Trump as soft-on-violent-crime

As regular readers surely know, the "Clinton record" on crime and punishment issues has many elements and nuances.  See, e.g., this post from last month titled "The many challenges of a fully nuanced understanding of the Clintons, crime, punishment and the 1994 Crime Bill."  That said, one can still generally summarize the Clintons in general, and Hillary Clinton in particular, as having been significantly "tougher" than nearly all other Democrats and even tougher than a great many GOP elected officials over the last quarter century on a long list of sentencing issues ranging from the death penalty to mass incarceration to juvenile punishments to federal crack sentencing.

But Donald Trump has used the 2016 election season to demostrate time and time again that a lengthy past record can matter a heck of a lot less than a catchphrase and fiery rhetoric, and thus I was not surprised to see this New York Times headline emerge after Trump's speech yesterday to the NRA: "Donald Trump Tells N.R.A. Hillary Clinton Wants to Let Violent Criminals Go Free." Here is the context and basis for this headline:

“Crooked Hillary Clinton is the most anti-gun, anti-Second Amendment candidate ever to run for office,” he said. Mrs. Clinton has called for tightened restrictions on guns, but not for abolishing the right to own them.

Mr. Trump, whose record of sexist remarks, among other things, has left him at a potentially crippling disadvantage among female voters, polls show, appealed directly to women in his speech, imbuing his defense of gun rights with an undercurrent of fear.

“In trying to overturn the Second Amendment, Hillary Clinton is telling everyone — and every woman living in a dangerous community — that she doesn’t have the right to defend herself,” Mr. Trump said. “So you have a woman living in a community, a rough community, a bad community — sorry, you can’t defend yourself.”

If Mr. Trump’s comments seemed reminiscent of an era when crime rates were far higher — the Willie Horton ads attacking Michael S. Dukakis, the Democratic nominee, in the 1988 presidential race came to mind — they also appeared somewhat at odds with the broad bipartisan consensus on the need to reduce incarceration rates and prison populations: Mr. Trump sought to frighten voters about the idea of criminals being released from prison.

He said Mrs. Clinton’s agenda was “to release the violent criminals from jail,” freeing them to roam the streets and put “innocent Americans at risk.” He even tried out a new epithet for Mrs. Clinton: “heartless Hillary.”

I consider to be Donald Trump to be an especially shrewd political figure because he seems to have stronger instincts than a number of other GOP figures as to how best to refine the rhetorical packaging of social issues in ways that can energize the GOP base without unduly locking himself into positions from which he can effectively pivot when seeking to appeal to more moderate and independent voters. Talking about women needing the Second Amendment as a means to have access to guns for self-defense in urban areas shows off his political deftness, as does his eagerness to assert (without any firm basis) that Hillary Clinton wants to release "violent criminals."  By including the term "violent" here, Trump will still be able to eventually express support for some "non-violent" sentencing reforms.

(For the record, I expect that in an effort to make nice with various members of the GOP estabishment in Congress, Trump will at some point in the next few months express some support for some modest federal drug sentencing, civil forfeiture, and mens rea reforms.  In the wake of this NRA speech, I would expect Trump, aided by crime-and-punishment-focused folks on his team like Senator Jeff Session and Chris Christie, to eventually say the federal government can and should follow the lead of reform-oriented southern states like Texas and Georgia, but do so only after we take steps to address illegal immigration and eliminate federal gun restrictions (and perhaps ramp up the federal death penalty).  In this context, I find notable this recent Washington Examiner commentary authored by Grover Norquist and Adam Brandon which carries the headline "Congress' new bills show how conservatives are still tough on crime."  This headline suggests that conservatives are coming to see that they can and likely need to preserve their "tough-on-crime" brand as part of efforts to promote sentencing reforms.)

A few prior related posts:

May 21, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (4)

Friday, May 20, 2016

Reviewing another notable week at Marijuana Law, Policy & Reform

Regular readers know that I will sometime close out my work-week blogging here by reviewing recent blogging at Marijuana Law, Policy & Reform.  This week will be another one of those times:

May 20, 2016 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0)

Suggesting we suffer from "under-incarceration," Senator Cotton calls federal sentencing reform "dead in this year’s Congress"

As reported in this Politico article, headlined "Sen. Tom Cotton: U.S. has 'under-incarceration problem'," at least one significant opponent of federal sentencing reform is already claiming victory in his efforts to preclude any legislative changes this year to any severe federal statutory mandatory minimums.  Here are the basics via Politico:

Sen. Tom Cotton on Thursday slammed his colleagues' efforts to pass sweeping criminal justice reforms, saying the United States is actually suffering from an "under-incarceration problem."

Cotton, who has been an outspoken critic of the bill in Congress that would reduce mandatory minimum sentences, smacked down what he called "baseless" arguments that there are too many offenders locked up for relatively small crimes, that incarceration is too costly, or that "we should show more empathy toward those caught up in the criminal-justice system."

"Take a look at the facts. First, the claim that too many criminals are being jailed, that there is over-incarceration, ignores an unfortunate fact: for the vast majority of crimes, a perpetrator is never identified or arrested, let alone prosecuted, convicted, and jailed," Cotton said during a speech at The Hudson Institute, according to his prepared remarks. "Law enforcement is able to arrest or identify a likely perpetrator for only 19 percent of property crimes and 47 percent of violent crimes. If anything, we have an under-incarceration problem."

Expanding upon his remarks during a question-and-answer session, Cotton said releasing felons under reduced sentences serves only to destabilize the communities in which they are released.  “I saw this in Baghdad. We’ve seen it again in Afghanistan," recalled Cotton, who served in the Army during both wars.  "Security has to come first, whether you’re in a war zone or whether you’re in the United States of America.”  Those advocating for criminal justice reform through such measures appear to have forgotten the high-crime days of the 1980s, Cotton remarked, noting that the federal prison population is declining....

"I believe the criminal-leniency bill in the Senate is dead in this year’s Congress. And it should remain so if future versions allow for the release of violent felons from prison," he went on to say. "I will, though, happily work with my colleagues on true criminal-justice reform — to ensure prisons aren’t anarchic jungles that endanger both inmates and corrections officers, to promote rehabilitation and reintegration for those who seek it, and to stop the over-criminalization of private conduct under federal law.  But I will continue to oppose any effort to give leniency to dangerous felons who prey on our communities."

Based on these comments from Senator Cotton (which can be read/seen via this link), I am now growing ever more inclined to agree with Senator Cotton's suggestion that a significant sentencing reform bill will not get through Congress before the 2016 election. Despite efforts to tweak the SRCA to appease some conservative critics, the most vocal opponents of the bill, Senators Cotton and Session, remain vocal in their opposition. In addition, as reported here, Senator Marco Rubio has recently expressed opposition to the SRCA. Perhaps most critically, I have yet to see anyone make a truly forceful political argument that any of the most critical current GOP leaders (namely Donald Trump, Mitch McConnell or Paul Ryan) ought to see great political benefits from now starting to aggressively champion federal statutory sentencing reform efforts.

That all said, I think some of the political calculations here remain fluid. It seems to me possible (though not likely) that the White House and/or leading Democrats might relent on opposition to mens rea reform, which could perhaps jump-start the stalled reform bills in the House of Representatives. Or maybe the even unpredictable Donald Trump will see some poll numbers suggesting he could improve his image with younger and minority voters by claiming he is better than the Clintons on criminal justice reform. And, not to be completely overlooked, it seems to me quite possible that lots of folks uncertain about the current national political mood on crime and punishment would feel comfortable moving forward on reforms during the lame duck period after the Nov 2016 elections.

All those speculations aside, I view Senator Cotton's latest comments as still further confirmation of my own long-standing fear that it continues to be much easier for all sorts of federal political actors to talk a lot about sentencing reform than to actually convert all the sentencing buzzing into actual federal statutory reforms. 

A few 2016 related posts:

May 20, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8)

Does anyone think former Subway pitchman Jared Fogle has any real chance to have his long federal sentence reversed as unreasonable?

The question in the title of this post is prompted by this local story discussing the high-profile sentencing appeal being heard today by the Seventh Circuit.  Here are the basic details:

Former Subway pitchman Jared Fogle is asking a federal appeals court judge to shorten his nearly 16-year prison sentence. A hearing on Fogle's appeal, which is scheduled this morning in the U.S. 7th Circuit Court of Appeals in Chicago, comes about six months after U.S. District Judge Tanya Walton Pratt sentenced Fogle to 15 years and eight months in federal prison.

Fogle argued that his sentence was unreasonable and that Pratt abused her discretion when she went beyond the sentence that federal prosecutors had recommended as part of a plea agreement.

The one-time face of Subway sandwiches pleaded guilty to possession or distribution of child pornography and traveling across state lines to have commercial sex with a minor. Prosecutors recommended a maximum sentence of 12.5 years, while Fogle's defense attorneys asked for five years....

On appeal, Fogle argued that the sentence he received is "procedurally flawed" for three reasons. First, Fogle did not plead guilty to production of child pornography, and he played no role in producing the images and videos he received from Taylor, according to court records filed by Fogle's attorney.

Second, the punishment is "erroneously grounded in acts that Fogle didn't do and in Fogle's fantasies," neither of which should have been used to justify an enhanced sentence, court records say. "Notwithstanding any fantasies Fogle may have had, or his discussions with third parties concerning possible sexual contact with children younger than the prostituted minors, these events never ultimately culminated in any chargeable criminal activity," court records say.

Third, the sentence was erroneously based on Fogle collecting and viewing pornography of children as young as 6. Fogle argued that although he viewed pornographic images of children, he neither collected them nor asked Taylor for the images.

The district court also seemed to punish Fogle for seeking treatment after his arrest, court records say, and erroneously rejected a probation officer's recommendation for a less harsh sentence based on the additional stress and collateral damage he will endure because of his notoriety.

Fogle also argued that he never had sex with the minors whom Taylor recorded, and never shared any of the pornographic images and videos with anyone other than on one occasion, when he showed them to a woman with whom Fogle was romantically involved. Although he expressed interest in having sex with minors as young as 14, court records say, he never actually did.

In response to Fogle's arguments, federal prosecutors said Pratt "thoroughly and appropriately explored the unusual nature and circumstances of Fogle's offenses and his history and characteristics." Although Fogle was not involved in the production of child pornography, "he knew where the production took place, knew that it was going to happen, and did nothing, instead waiting for his chance to receive the material," according to court records filed by the U.S. attorney's office.

While prosecutors acknowledged the differences between Fogle and Taylor, they said Fogle rationalized and encouraged Taylor's conduct — and, for several years, benefited from it. "Fogle's fantasies were grounded in reality, in that he fantasized about and sought actively to repeat what he had already done, i.e., pay minors for sex," court records say.

Prosecutors also echoed Pratt's statements during Fogle's sentencing hearing last November. Fogle, unlike many offenders, had a relatively easy childhood, free of abuse and neglect. Although he did seek medical treatment, he did so only after he was caught.

Prior related posts:

May 20, 2016 in Booker in district courts, Booker in the Circuits, Celebrity sentencings, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3)