Sunday, November 23, 2014

Reviewing the potential and pitfalls in a notable problem-solving court in NYC

Today's New York Times has this terrific lengthy account of the work of a unique "problem-solving court" in New York.  The piece is headlined "In a Queens Court, Women in Prostitution Cases Are Seen as Victims," and here are small excerpts from an article that merits a read in full:

The Human Trafficking Intervention Court in Queens, which is marking its 10th anniversary next month, ... serves as a model for a statewide 11-court program that began last year. The intention is to change the legal conversation around the multibillion-dollar sex trade by redefining the women in it as victims instead of criminals. Most are offered a deal: Take part in a set number of counseling sessions, usually five or six, and the charges will be dismissed and the record sealed.

After 13 months, the five New York City courts are still a work in progress, their success tracked more in individual stories than statistics. “This court is not devised to solve the problems of trafficking,” Judge Serita said of the program, “but to address one of the unfortunate byproducts, which is the arrest of these defendants on prostitution charges.”

All defendants in the specialized courts are presumed to be victims at risk, the first of many assumptions made, in part, because of the silence surrounding sex trafficking. That silence also makes it tougher to shift social mores. Not only do the police and the justice system still treat prostitution as a crime, but the women themselves, most undocumented, often don’t define themselves as having been trafficked — whether out of fear, shame or choice....

At no point in the proceedings does the judge, the prosecutor or the defense lawyer ask if the defendants have been trafficked; nor is there a quid pro quo to give up a trafficker. It is rare, but the hope is that the women, perhaps after working with counselors, will feel comfortable describing the conditions that led them to prostitution....

On Fridays, Judge Serita usually hears more than 40 cases in three hours. “How are you today?” she asks each of the women, inquiring whether they take English classes and praising their progress. Several defendants said they noticed less that she was an Asian woman and more that she had a warm demeanor. On other days, she presides over the drug treatment and mental health courts in Queens.

The trafficking court, she acknowledged, is a Catch-22: For people to feel less like criminals, they must first go through the criminal justice system. Leigh Latimer, the Legal Aid Society lawyer assigned to Judge Serita’s court, agreed. “There is a somewhat more recent view that clients are potentially victims, but we’re still arresting them at a very rapid pace,” she said. “We’re trying to solve their problems through being arrested, which is not an affirming process.”...

On several Fridays, nearly a dozen women said during interviews in Mandarin that they did not feel like trafficking victims, but victims of the police. The women all spoke on the condition of anonymity because their cases were still pending. “My name has been tarnished,” said one woman, who was upset that her case was “lumped with all those others.” She denied performing a sex act, but the police report contradicted that, Ms. Affronti said.

Another woman explained that she was arrested at 4 a.m. on her sixth day of work. She and her sister, who quit after the second day because she sensed “something was not right,” owed more than $80,000 to friends and family members who raised the money for them to come to the United States from Fuzhou. That type of pressure to pay back smuggling agents — often with interest as high as 12 percent — is considered “debt bondage.” It is a more subtle condition of human trafficking, but is pervasive in New York’s Asian communities, lawyers say.

November 23, 2014 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack (0)

"On Life Support: Public Health in the Age of Mass Incarceration"

Download (3)The title of this post is the title of this notable new report from the Vera Institute of Justice as part of a new initiative called Justice Reform for Healthy Communities. A helpful report overview starts this way:

Each year, millions of incarcerated people — who experience chronic health conditions, infectious diseases, substance use, and mental illness at much higher rates than the general population — return home from correctional institutions to communities that are already rife with health disparities, violence, and poverty, among other structural inequities.

For several generations, high rates of incarceration among residents in these communities has further contributed to diminished educational opportunities, fractured family structures, stagnated economic mobility, limited housing options, and restricted access to essential social entitlements.

Several factors in today’s policy climate indicate that the political discourse on crime and punishment is swinging away from the punitive, tough-on-crime values that dominated for decades, and that the time is ripe to fundamentally rethink the function of the criminal justice system in ways that can start to address the human toll that mass incarceration has had on communities.

At the same time, the nation’s healthcare system is undergoing a historic overhaul due to the passage of the Affordable Care Act (ACA).  Many provisions of the ACA provide tools needed to address long-standing health disparities. Among these are:

> Bolstering community capacity by expanding Medicaid eligiblity, expanding coverage and parity for behavioral health treatment, and reducing health disparities.

> Strengthening front-end alternatives to arrest, prosecution, and incarceration.

> Bridging health and justice systems by coordinating outreach and care, enrolling people in Medicaid and subsidized health plans across the criminal justice continuum, using Medicaid waivers and innovation funding to extend coverage to new groups, and advancing health information technology.

November 23, 2014 in Collateral consequences, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0) | TrackBack (0)

Saturday, November 22, 2014

Interesting look at California's Proposition 47 and undoing collateral consequences

I just noticed, over at the Collateral Consequences Resource Center, that California Federal Public Defender Jeffrey Aaron has this new posting exploring the impact of his state's approval of Proposition 47 which downgraded various felonies to misdemeanors.  Here are excerpts:

Significantly, Proposition 47 applies not only to persons who are currently “serving a sentence,” but also to those who have already fully served their sentences.  This means that thousands of people with California felony convictions can under certain circumstances petition to have their case recalled, the crime re-designated a misdemeanor, and be resentenced.  Once reduced to misdemeanors, qualifying crimes can be set aside under California Penal Code § 1203.4 (felony or misdemeanor cases sentenced to probation) or 1203.4a (misdemeanor cases sentenced to prison).  These provisions allow a defendant to withdraw his plea of guilty, enter a not guilty plea, and have the judge dismiss the case.  The record can then be expunged.

The importance of this retroactive effect of the new law cannot be over-estimated.  While Proposition 47 gained popular support as a way of reducing California’s prison population, its broadest and most significant long-term effect may be to reduce the impact of collateral consequences on people in the community.  For criminal defense lawyers, Proposition 47 offers a significant way to reduce a client’s exposure in subsequent prosecutions.

It is amazing that just a few months ago, a defendant with two prior felony drug possessions in state court, and currently charged with drug distribution in federal court, faced a mandatory sentence of life imprisonment.  Now he can have those California priors reduced to misdemeanors, and then dismissed, so that, under certain circumstances, they can no longer be used to enhance the federal sentence.  Generally, convictions that are set-aside for reasons not involving innocence or errors of law will still result in criminal history points.  Counsel might argue in resentencing that the reduction from felony to misdemeanor supports a finding that the conviction over-represents the defendant’s criminal history....

The Proposition provides relief to anyone convicted in the past of a wide range of property and drug crimes, as long as the person does not have a “disqualifying prior.”   Disqualifying priors include offenses requiring sex offender registration, and specified violent offenses....

Simply by going to court to have their felony charges converted to misdemeanors, people can end up with a criminal record that looks very different, and has a very different effect.

 

November 22, 2014 in Collateral consequences, Sentences Reconsidered | Permalink | Comments (0) | TrackBack (0)

Notable comments from AAG about Justice Reinvestment

Earlier this week, Assistant Attorney General Karol Mason delivered these interesting remarks for DOJ's Office of Justice Programs at a big Justice Reinvestment Summit. The full speech is worth review, and here are a few excerpts I found noteworthy:

I think it can legitimately be said that justice reinvestment has transformed the way we approach public safety in this country.  It is no exaggeration to say that it has helped to redefine the missions of our criminal and juvenile justice agencies.  Thanks in great part to the focus that your work has given to justice policies, corrections leaders, law enforcement officials and prosecutors have begun to measure their performance, not just by the narrow metrics of arrests, convictions and confinement, but by actual improvements to public safety.

And this shift in attitude and approach is paying off.  Many states that have engaged in Justice Reinvestment have seen drops in crime rates and imprisonment — and substantial taxpayer savings.

Having just emerged from the recent mid-term elections, it’s worth remarking on another important aspect of justice reinvestment: it’s an approach to justice policy that resonates on both sides of the aisle.  We’ve seen lawmakers who disagree on just about every other policy matter rally around data-driven analysis focused on investing increasingly scarce public resources in programs and policies that work.

State and local governments, representing all political persuasions, have taken on major reforms designed to reduce prison-building costs and redirect precious public funds to programs aimed at reducing crime.  It can honestly be said that, in a climate of intense partisanship, we are witnessing the growth of a broad, bipartisan consensus in city halls, state capitals and Congress around crime and justice policy, thanks in great measure to justice reinvestment....

This progress is reflected in a general downward trend in both crime and incarceration rates throughout the country.  Before the FBI released its most recent data last week, crime had declined nationally by more than 11 percent since President Obama took office. The new FBI data show additional drops in 2013.  On top of that, the rate of incarceration has gone down by more than eight percent since 2009.  It’s the first time these two measures have fallen together in more than 40 years.  This is truly historic! We’re experiencing a moment of public safety unprecedented in most of our lifetimes.

But this is no time to relax.  Those of you who’ve been in this business for a while know that the winds of justice and sentencing policies have always blown hot and cold.  If we don’t take advantage of the momentum we’ve built through Justice Reinvestment and embed this data-driven mindset into mainstream practice, we risk a return to the counterproductive practices of the past.

In fact, truth be told, we are still two nations when it comes to prison trends. The extraordinary success in reducing incarceration that we’ve been able to realize in many states has been offset by continued increases in others.  Now, to be sure, these figures don’t reflect that some of the states with increases are now working through justice reinvestment to change course.  And I’m confident that now we have the wind at our back. But we will have to remain vigilant.

November 22, 2014 in Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack (0)

Friday, November 21, 2014

"'Power and Greed and the Corruptible Seed': Mental Disability, Prosecutorial Misconduct, and the Death Penalty"

The title of this post is the title of this notable new paper by Michael Perlin available via SSRN. Here is the abstract:

The Supreme Court’s death penalty jurisprudence is based in large part on the assumption that jurors can be counted on to apply the law in this area conscientiously and fairly. All our criminal procedure jurisprudence is based in large part on the assumption that prosecutors and judges will act fairly.  I believe that these assumptions are based on nothing more than wishful thinking, and that the record of death penalty litigation in the thirty-eight years since the “modern” penalty was approved in Gregg v. Georgia gives the lie to them.

This article focuses solely on the role of prosecutors in this process, and the extent to which prosecutorial misconduct has contaminated the entire death penalty process, especially in cases involving defendants with mental disabilities. This is an issue known well to all those who represent such defendants in death penalty cases but, again, there is startlingly little literature on the topic. It is misconduct that is largely hidden and ignored. The article begins with some brief background on issues that relate to the treatment of persons with mental disabilities in the criminal justice system in general. It then discusses prosecutorial misconduct and the outcomes of that misconduct, with special attention to a cohort of appellate decisions in unheralded and rarely (if ever) discussed published cases that, in almost every instance, sanction such misconduct. Next, it demonstrates how some prosecutors purposely flaunt the canons of ethics in the prosecution of defendants with mental disabilities in death penalty cases, and then will discuss some solutions raised by scholars to (at least, partially) cure this problems, and concludes with some modest suggestions of my own.

November 21, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack (0)

Ohio and Utah moving forward with distinct fixes for lethal injection drug problems

As reported in this two article, legislatures in Ohio and Utah are taking quite different approaches to the problems poised by the unavailability of some drugs historically used for lethal injection executions.  The headlined of these stories highlight the basics:

From the Wall Street Journal here, "Ohio House Passes Bill Shielding Execution Drugmakers: Measure Would Add Layers of Secrecy to Death-Penalty Procedures." 

From the Salt Lake Tribune here, "Firing squad executions back on the table in Utah Legislature"

November 21, 2014 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (3) | TrackBack (0)

Unpacking why DOJ is so concerned about federal prison populations and its costs

As highlighted in this effective piece by Andrew Cohen published by The Marshall Project, earlier this month Michael Horowitz, the Justice Department’s Inspector General (and a former member of the US Sentencing Commission), authored this memorandum describing DOJ's concerns with federal prison overcrowding and costs. These excerpts from Cohen's piece highlight some of the Horowitz memo's most notable messages:

The Bureau of Prison’s budget now ($6.9 billion) is nearly twice what it was ($3.8 billion) in 2000, Horowitz tells us, an increase at “almost twice the rate of growth of the rest of the Department.” Worse, he writes, even though federal prison officials have been warned that their part of the budget is draining funding away from other Justice Department programs (like those that support victims groups) they asked for more money this past budget cycle....

Horowitz didn’t mince words, either, about what is costing so much. The federal prison population is aging at a fast pace. “From FY 2009 to FY 2013, the population of sentenced inmates age 50 and over in BOP-managed facilities increased 25 percent, while the population of sentenced inmates under the age of 30 decreased by 16 percent,” he notes. As a result, “the cost for providing healthcare services to inmates increased 55 percent from FY 2006 to FY 2013.”...

If you think the facts and figures above are disconcerting, the numbers Horowitz offers about conditions within our federal prisons are even more dire. Prison overcrowding, he asserts, is “the most significant threat to the safety and security of Bureau of Prisons staff and inmates”.... When it comes to easing overcrowding it’s clear that Horowitz believes we are headed in the wrong direction, which is another reason why he keeps calling current conditions at the Bureau of Prisons “a crisis.”

To bring the ratio of inmate to space available to appropriate levels, to eliminate the overcrowding “without expending additional funds to build more federal prison space or to contract for additional non-federal bed space,” Horowitz says that the Justice Department “would have to achieve a net reduction of about 23,400 federal prisoners from the June 2014 prison population...” That’s more than ten percent of the current population. Can you imagine? I can’t.

November 21, 2014 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

Thursday, November 20, 2014

Significant sentencing reform afoot in Michigan

As reported in this Detroit News article, headlined "Michigan prison sentence reforms gain momentum," the Great Lakes state is moving toward some significant sentencing changes. Here is how the article starts:

State lawmakers are poised to act on a legislative package that would reduce some prison sentences, making it potentially the biggest issue — besides a road tax increase — they may consider when they return from a two-week recess.

The package of bills calls for a state commission to adjust tough sentencing policies adopted in 1998 that crowded prisons and sharply increased corrections spending. The legislation is aimed at reducing crime while reining in the state's $2 billion prison budget through sentencing, parole and probation reforms. It has moved quickly toward a House vote in the lame-duck session.

The vision is for the number of prisoners to decline over time, and for all released prisoners to receive supervision. The number of inmates incarcerated by the state has dropped below 44,000 from a high of 51,554 in March 2007, and cost increases have moderated because of policy changes and the contracting out of some prison services to private companies.

But Republican Rep. Joe Haveman of Holland, point man for the proposed reforms, said he sees potential for even more downsizing of the sprawling prison system. Corrections Department Director Dan Heyns "has done a fantastic job of getting at the low-hanging fruit through policies and cost savings ... but you can't save your way to a low-cost prison system," Haveman. "The only way you can get more long-term savings is to close a prison."

Attorney General Bill Schuette said he has "grave concerns" with some key proposals in the bills that he feels could "open the door to parole for some violent offenders at the earliest possible date."

The legislation is getting a boost from House Speaker Jase Bolger, a Marshall Republican who over the weekend shared on his Facebook page a column by GOP former U.S. House Speaker Newt Gingrich that lauded Michigan's sentencing reform package and suggested it was "getting it right on crime."

November 20, 2014 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0) | TrackBack (0)

Hoping to help Kickstart a notable new death penalty documentary

I am eager to promote widely an important film project from some folks in London focused on modern US death penalty stories. (I am partial to the project in part because one of my former students, Allen Bohnert, OSU Moritz College of Law grad ('06), is one key subject being documented in his role as current lead counsel in the long-running Section 1983 litigation over Ohio's lethal injection protocols.)

This notable project is still in production, and the filmmakers are currently fundraising for financial support to help allow them to finish filming.  The Kickstarter campaign is available here; lots of interesting items are available (such as signed copies of Bryan Stevenson's book, Just Mercy, one-off pieces of art and the film itself) for any donation over $25.  I have been told that they will not be able to effectively finish this film without additional help for further funding.

The film itself is titled The Penalty, and it is to be a 90-minute feature documentary examining the current state of America's capital punishment system.  While some other documentaries have focused on death row stories through the lens of condemned prisoners, this film is focused more on people involved not on the row: lawyers, family members, politicians, campaigners, law enforcement, and others. A snippet from some filming so far is available at www.thepenaltyfilm.com.

I understand that the filmmakers have been particularly focused on following (1) my former student, Assistant Federal Public Defender for the Southern District of Ohio Allen Bohnert, through Ohio's problematic execution of Dennis McGuire and its fallout, and (2) Louisiana death row exoneree Damon Thibodeaux as he tries to put his life back together after his wrongful conviction and later exoneration. I believe the filmakers are also incorporating lots of other characters from the capital punishment universe, including many experts in the field such as Debby Denno, Jeanne Woodford, David Dow, Kathryn Kase, Peter Neufeld, Richard Dieter and Clive Stafford-Smith.

Finally, I have been told that anyone has any ideas on stories that the filmmakers should look at, or have ideas for people they should be sure to talk to (e.g., grant-giving foundations, media outlets, campaign groups), they filmakers are eager to spread their network far and wide, and you can pass on ideas by emailing laura@reelnice.co.uk or will@reelnice.co.uk.

Cross-posted at PrawfsBlawg.

November 20, 2014 in Baze lethal injection case, Death Penalty Reforms, Film, Who Sentences? | Permalink | Comments (1) | TrackBack (0)

"The Racist Origins of Felon Disenfranchisement"

The title of this post is the headline of this recent New York Times commentary by Brent Staples. Here are excerpts:

The state laws that barred nearly six million people with felony convictions from voting in the midterm elections this month date from the late 19th and early 20th centuries, when Southern lawmakers were working feverishly to neutralize the black electorate.  Poll taxes, literacy tests, grandfather clauses and cross burnings were effective weapons in this campaign.  But statutes that allowed correctional systems to arbitrarily and permanently strip large numbers of people of the right to vote were a particularly potent tool in the campaign to undercut African-American political power.

This racially freighted system has normalized disenfranchisement in the United States — at a time when our peers in the democratic world rightly see it as an aberration. It has also stripped one in every 13 black persons of the right to vote — a rate four times that of nonblacks nationally.  At the same time, it has allowed disenfranchisement to move beyond that black population — which makes up 38 percent of those denied the vote — into the body politic as a whole.  One lesson here is that punishments designed for one pariah group can be easily expanded to include others as well....

Maine residents vigorously debated the issue last year, when the Legislature took up — and declined to pass — a bill that would have stripped the vote from some inmates, whose crimes included murder and other major felonies.  Families of murder victims argued that the killers had denied their loved ones the right to vote and therefore should suffer the same fate.

Those who opposed the bill made several arguments:  That the franchise is enshrined in the state Constitution and too important to withdraw on a whim;  that voting rights keep inmates connected to civic life and make it easier for them to rejoin society;  that the notion of restricting rights for people in prison was inconsistent with the values of the state.

A former United States marshal and police chief argued that revoking inmate voting rights would strip imprisoned people of dignity and make rehabilitation that much more difficult. The editorial page of The Bangor Daily News argued against revocation on the grounds that, “Removing the right of some inmates to exercise their legal responsibility as voters in a civilized society would undermine that civilized society.”

The fact that most states view people who have served time in prison as beyond the protection of the bedrock, democratic principle of the right to vote shows how terribly short this country has fallen from achieving its ideals.

November 20, 2014 in Collateral consequences, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (4) | TrackBack (0)

"Overcriminalization: Administrative Regulation, Prosecutorial Discretion, and the Rule of Law"

The title of this post is the title of this notable new paper by Ronald Cass now available on SSRN.  Here is the abstract:

Recently, both practical and doctrinal changes have significantly reduced the degree to which criminal punishment fits rule-of-law ideals.  Although far from the only cause, the expansion of criminal sanctions as a by-product of an extraordinary explosion in administrative rulemaking that is backed by criminal liability has helped propel this change.  While there are reasons to support criminal enforcement of administrative decision-making, the ways in which administrative rules are adopted, applied, and enforced and the scale of governmental law-making (including administrative rule-making) that has provided the grounds for potential criminal penalties have produced a massive increase in government power that risks serious erosion of individual liberty.

This change cries out for immediate attention ― and for changes to the law.  This article explores differences between criminal law and administrative law, and between statutory and administrative rule generation and application, explaining how differences between administrative law and criminal law play out (problematically) with respect to much criminal enforcement of administrative rules.

November 20, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack (0)

Wednesday, November 19, 2014

Some recent highlights from Marijuana Law, Policy and Reform

It has been a few weeks since I have done a round up of notable new posts from Marijuana Law, Policy and Reform, so here goes: 

November 19, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Preparing for pot professing | Permalink | Comments (1) | TrackBack (0)

"Death, Desuetude, and Original Meaning"

The title of this post is the title of this notable new paper by John Stinneford now available via SSRN. Here is the abstract:

One of the most common objections to originalism is that it cannot cope with cultural change. One of the most commonly invoked examples of this claimed weakness is the Cruel and Unusual Punishments Clause, whose original meaning would (it is argued) authorize barbaric punishment practices like flogging and branding, and disproportionate punishments like the death penalty for relatively minor offenses. This Article shows that this objection to originalism is inapt, at least with respect to the Cruel and Unusual Punishments Clause. As I have shown in prior articles, the original meaning of “cruel and unusual” is “cruel and contrary to long usage,” or “cruel and new.” The primary purpose of the Cruel and Unusual Punishments Clause is to prevent legislatures and courts from imposing new punishments that are unduly harsh in light of the long usage of the common law.

This Article demonstrates that the Clause also incorporates the common law doctrine of desuetude, which holds that a once traditional punishment can become “unusual” if it falls out of usage long enough to show a stable multigenerational consensus against it. State courts and the Supreme Court of the United States employed this doctrine in decisions prior to 1958 to determine whether punishments such as ducking of a common scold, execution accompanied by torture, and imprisonment at hard labor for a minor offense were cruel and unusual. Under the original meaning of the Cruel and Unusual Punishments Clause, the death penalty could become unconstitutional if it fell out of usage long enough to show a stable, multigenerational consensus against it. This process already occurred with respect to flogging, branding, and execution for relatively minor crimes like theft, and under the constitutions of states that abolished the death penalty several generations ago.

November 19, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (4) | TrackBack (0)

Massachusetts special commission urges repeal of all drug mandatory minimums

DownloadAs reported in this local article, "a special commission studying the state's criminal justice system recommended eliminating mandatory minimum sentences for all drug offenses in Massachusetts."  Here is more about the commission's work and recommendations to date:

The commission also voted to recommend parole eligibility for all state prison sentences after an inmate has served at least two-thirds of the lower end of their sentence, except in cases of murder or manslaughter, and to maintain the current parole eligibility standards in houses of correction of half-time served on sentences of 60 days or more.

The commission, formed over two years ago, is trying to produce an in-progress report before the end of the year to inform Governor-elect Charlie Baker's administration. Baker, during his campaign for governor, voiced support for striking mandatory minimums for non-violent drug offenses as part of a broader approach to combat substance abuse.

The Special Commission to Study the Commonwealth's Criminal Justice System on Tuesday began debating legislative recommendations members plan to make to strengthen post-release supervision, improve prisoner reentry outcomes and reduce recidivism, and address overcrowding in the state's jails and prisons.

"Drug offenses are a huge reason we have so much overcrowding in the prison system," said Patty Garin, a criminal defense attorney and co-director of the Northeastern University Law School Prisoners Assistance Program. Garin and other commission members argued judges should be able to practice evidence-based sentencing, and suggested mandatory minimums disproportionately impact poorer communities and communities of color.

The 9-2 vote, with Attorney General Martha Coakley's representative abstaining, came over the objections of Cape and Islands District Attorney Michael O'Keefe, who sits on the commission. O'Keefe did not attend Tuesday's meeting, but submitted a letter expressing his opposition and later told the News Service that mandatory minimums are a tool prosecutors "use and use very effectively to stem the flow of drugs into communities."

"We utterly reject this notion that the criminal justice system is warehousing these non-violent drug offenders. That simply is not the case. People have to work extremely hard to get themselves into jail here in the Commonwealth of Massachusetts," O'Keefe said.

The commission was formed by Gov. Deval Patrick and the Legislature in 2012, and Undersecretary of Criminal Justice Sandra McCroom said she hopes to publish a report by the end of the year, though she acknowledged that all of the commission's work likely won't be completed by then. Patrick has also reconstituted the Sentencing Commission, which has met twice over the past two months and whose work could coincide with the criminal justice commission's recommendations....

Public Safety Secretary Andrea Cabral, who does not have a vote on the commission, said she would have carved out an exception from the mandatory minimum recommendation for trafficking crimes. While supporting enhanced drug treatment options, she said not all people convicted of drug offenses are struggling with addiction, and some are driven by money. "I think there should be a line drawn on trafficking," Cabral said.

Others on the commission, including Garin and Anthony Benedetti, chief counsel at the Committee for Public Counsel Services, argued that judges should be given discretion even in trafficking cases, expressing confidence that harsh sentences will be issues for those who deserve them. Worcester County Sheriff Lewis Evangelidis, a Republican, and a staff member representing Judiciary Committee Vice Chairman Rep. Chris Markey (D-Dartmouth) voted against the recommendation to do away with mandatory minimum sentences. "To me it's overreaching and too broad," said Evangelidis, a former state representative....

O'Keefe, the recent past president of the Massachusetts District Attorneys Association, expressed concern that if the Legislature were to eliminate mandatory minimum drug sentences, the courts would see defendants shopping for more lenient judges to avoid prison time. "Mandatory minimum sentences came into being in the first place to ensure relative uniformity in the sentencing of individuals distributing drugs," O'Keefe said....

Attorney General-elect Maura Healey has also backed ending mandatory minimums for non-violent drug offenses, and during her campaign called for expanding the use of drug courts.

November 19, 2014 in Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack (0)

Missouri completes ninth execution of 2014

As reported in this AP piece, headlined "Missouri Executes Leon Taylor for 1994 Killing," the Show Me state showed another murderer that death sentences still get carried out in Mizzou. Here are the basic details:

A man who killed a suburban Kansas City gas station attendant in front of the worker's young stepdaughter in 1994 was put to death early Wednesday -- the ninth execution in Missouri this year.

Leon Vincent Taylor, 56, was pronounced dead at 12:22 a.m. at the state prison in Bonne Terre, minutes after receiving a lethal injection. With Taylor's death, 2014 ties 1999 for having the most executions in a year in Missouri.

Taylor shot worker Robert Newton to death in front of Newton's 8-year-old stepdaughter during a gas station robbery in Independence, Missouri. Taylor tried to kill the girl, too, but the gun jammed.

Taylor's fate was sealed Tuesday when Gov. Jay Nixon declined to grant clemency and the U.S. Supreme Court turned down his appeal. His body covered by a white sheet, Taylor could be seen in the execution chamber talking to family members through the glass in an adjacent room. Once the state started injecting 5 grams of pentobarbital, Taylor's chest heaved for several seconds then stopped. His jaw went slack and he displayed no other movement for the rest of the process.

Four of Taylor's family members sat in a room to his left and looked on without reaction as the drug killed Taylor in about eight minutes. At a time when lethal injections have gone awry in Oklahoma, Ohio and Arizona and taken an extended period to kill an inmate, Taylor's execution went off without any visible hitches or complications with the drug or equipment.

In a final statement, Taylor apologized to Newton's family because "our lives had to entwine so tragically" and thanked his family for their support and love. "I am also sorry to have brought all of you to this point in my life to witness this and/or participate," Taylor said. "Stay strong and keep your heads to the sky."

Speaking to reporters after the execution, Newton's brother, Dennis Smith, noted that it had been about 7,500 days since the killing and said the family has missed Newton every one of them. Smith described Newton as a hard worker, generous and with a memorable laugh. At times, Smith paused to compose himself as tears rolled down his cheeks. "It would just take a coward to want to hurt someone like him," Smith said.

November 19, 2014 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (3) | TrackBack (0)

Tuesday, November 18, 2014

Ninth Circuit upholds injunction, on First Amendment grounds, blocking California law requiring sex offenders to report report online activities

As reported in this Bloomberg story, "California can’t enforce a law to combat sex trafficking because it tramples on free speech rights of sex offenders by requiring them to report online activities, such as their Twitter, e-mail and chatroom accounts, a U.S. appeals court ruled." Here are more of the ruling's basics via the press:

The San Francisco-based court today upheld a judge’s decision to block enforcement of a voter-approved law that was backed by former Facebook Inc. (FB) executive Chris Kelly and garnered support from more than 80 percent of California voters in 2012.

The measure, known as Proposition 35, isn’t clear about what accounts or Internet service providers offenders are required to report and targets online speech that could include blogging about politics and posting comments on news articles, the appeals court’s three-judge panel said today.

The law also harms sex offenders’ ability to engage in anonymous speech because it allegedly allows police to disclose their online identities to the public, the court said. Failure to report on Internet activity can lead to criminal sanctions.

A requirement that registered sex-offenders notify police within 24 hours of using a new Internet identity chills activity protected by the U.S. Constitution’s First Amendment, U.S. Circuit Judge Jay S. Bybee wrote in the unanimous ruling.

The ruling in Doe v. Harris, No. 13-15263 (9th Cir. Nov. 18, 2014) (available here), officially gets started this way:

California law has long required registered sex offenders to report identifying information, such as their address and current photograph, to law enforcement.  Cal. Penal Code §§ 290.012, 290.015.  The Californians Against Sexual Exploitation (“CASE”) Act sought to supplement and modernize these reporting obligations by requiring sex offenders to provide “[a] list of any and all Internet identifiers established or used by the person” and “[a] list of any and all Internet service providers used by the person.” Id. § 290.015(a)(4)–(5).  The Act also requires registered sex offenders to send written notice to law enforcement within 24 hours of adding or changing an Internet identifier or an account with an Internet service provider (“ISP”). Id. § 290.014(b). 
Appellees Doe, Roe, and the nonprofit organization California Reform Sex Offender Laws filed a complaint alleging that the CASE Act infringes their freedom of speech in violation of the First Amendment.  Appellees filed a motion for a preliminary injunction, which the district court granted.  Kamala Harris, the Attorney General of California, and Intervenors, the proponents of the CASE Act, appeal.  We hold that the district court did not abuse its discretion by enjoining the CASE Act. Accordingly, we affirm.

November 18, 2014 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing, Technocorrections | Permalink | Comments (8) | TrackBack (0)

"Does Prison Privatization Distort Justice? Evidence on Time Served and Recidivism"

The title of this post is the title of this very interesting article with empirical research on private prisons and time served. The piece, authored by Anita Mukherjee and now available via SSRN, has this abstract:

I contribute new evidence on the impact of private prisons on prisoner time served and recidivism by exploiting the staggered entry and exit of private prisons in Mississippi between 1996 and 2004. Little is known about this topic, even though burgeoning prison populations and an effort to cut costs have caused a substantial level of private contracting since the 1980s. The empirical challenge is that prison assignment may be based on traits unobservable to the researcher, such as body tattoos indicating a proclivity for violent behavior.

My first result is that private prisons increase a prisoner's fraction of sentence served by an average of 4 to 7 percent, which equals 60 to 90 days; this distortion directly erodes the cost savings offered by privatization. My second result is that prisoners in private facilities are 15 percent more likely to receive an infraction (conduct violation) over the course of their sentences, revealing a key mechanism by which private prisons delay release. Conditional on receiving an infraction, prisoners in private prison receive twice as many. My final result is that there is no reduction in recidivism for prisoners in private prison despite the additional time they serve, suggesting that either the marginal returns to incarceration are low, or private prisons increase recidivism risk.

These results are consistent with a model in which the private prison operator chooses whether to distort release policies, i.e., extend prisoner time served beyond the public norm, based on the typical government contract that pays a diem for each occupied bed and is imperfectly enforced.

November 18, 2014 in Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

"Criminal Sentencing Reform: A Conversation among Conservatives"

Thanks to this post by Bill Otis at Crime & Consequences, I see that the Federalist Society recent National Convention included a panel discussion on sentencing reform, which can now be watched in full via YouTube at this link.  Here is how the discussion is described along with its participants:

Although prison populations at the federal level have very recently declined for the first time in decades, prisoner population at the state level rose.  The cost of crime, some that can be measured and some that are impossible to measure, is undoubtedly high, but so too is the cost of incarceration.  Are we striking the right balance in length of sentences?  And what is the proper balance between latitude and sentencing guidelines for judges?  Do the answers to these questions differ for the state versus the federal criminal justice system?

The Federalist Society's Criminal Law & Procedure Practice Group presented this panel on "Criminal Sentencing Reform: A Conversation among Conservatives" on Friday, November 14, during the 2014 National Lawyers Convention.

  • Mr. Marc A. Levin, Director, Center for Effective Justice, Texas Public Policy Foundation
  • Mr. John G. Malcolm, Director and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation
  • Hon. Michael B. Mukasey, Partner, Debevoise & Plimpton LLP and former U.S. Attorney General
  • Prof. William G. Otis, Adjunct Professor of Law, Georgetown University Law Center
  • Moderator: Hon. William H. Pryor, Jr., U.S. Court of Appeals, Eleventh Circuit

For a host of reasons, I am very pleased and impressed that the Federalist Society brought together a bunch of leading conservatives with various viewpoints to discuss these issues at their National Lawyers Convention. (It would have been nice to have had more than a single panelist who was not a former senior official with the Bush Administration's Justice Department, but I suspect it might be hard to find many conservatives who know a lot about sentencing who were not part of the Bush Administration's Justice Department.)

November 18, 2014 in Elections and sentencing issues in political debates, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack (0)

Wonderful new on-line resource, Collateral Consequences Resource Center, now available

Header-mainI am very pleased to be able to report on a very important addition to the criminal justice on-line universe, the Collateral Consequences Resource Center.  This posting by Margy Love provides this background and something of a mission statement:

The Collateral Consequences Resource Center website launches on Tuesday, November 18, 2014.  We hope it will fill a growing need for information and advice about the modern phenomenon of mass conviction and the second-class citizenship it perpetuates.

The legal system is only beginning to confront the fact that an increasing number of Americans have a criminal record, and the status of being a convicted person has broad legal effects.  The importance of collateral consequences to the criminal justice system is illustrated by cases like Padilla v. Kentucky (2010), holding that defense counsel have a Sixth Amendment obligation to advise clients about the possibility of deportation.  Civil lawyers too are mounting successful constitutional challenges to harsh consequences like lifetime sex offender registration, categorical employment disqualification, and permanent firearms dispossession, which linger long after the court-imposed sentence has been served.  Government officials have tended to regard collateral consequences primarily as a law enforcement problem involving the thousands leaving prison each year, but they are now considering how to deal with the lifetime of discrimination facing the millions who have long since left the justice system behind.  Advocates are pointing out how counterproductive and unfair most mandatory collateral consequences are, and legislatures are paying attention.  People with a record are organizing to promote change.

The time is right to launch the Collateral Consequences Resource Center, which will bring together in a single forum all of these diverse interests and issues.  The Center’s goal is to foster public discussion and disseminate information about what has been called the “secret sentence.”  Through its website the Center will provide news and commentary about developments in courts and legislatures, curate practice and advocacy resources, and provide information about how to obtain relief from collateral consequences in various jurisdictions.  The Center aims to reach a broad audience of lawyers and other criminal justice practitioners, judges, scholars, researchers, policymakers, legislators, as well as those most directly affected by the consequences of conviction.  It invites tips about relevant current developments, as well as proposals for blog posts on topics related to collateral consequences and criminal records: staff@CCResourceCenter.org.

Impressively, this new web resource (which I guess I will call CCRC) has a ton of terrific content already assembled at webpages dedicated to State-Specific Resources, Books and Articles, and Reports and Studies.  And here are links to a few recent notable blog postings:

November 18, 2014 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (3) | TrackBack (0)

Marshall Project investigation, "Death by Deadline," looks at capital appeals impact of AEDPA

As noted here yesterday, The Marshall Project, an important new reporting outlet focused on criminal justice issues, is now running full steam and has now lots of notable new content on its slick website. And the big first feature from The Marshall Project is a lengthy two-part investigative report titled "Death by Deadline" focused on the legal and practical impact of the capital appeal restriction in the Anti-Terrorism and Effective Death Penalty ACt (AEDPA).  Below are links and key passages from each part of the report.

Part One: How bad lawyering and an unforgiving law cost condemned men their last appeal:

An investigation by The Marshall Project shows that since President Bill Clinton signed the one-year statute of limitations into law — enacting a tough-on-crime provision that emerged in the Republicans' Contract with America — the deadline has been missed at least 80 times in capital cases. Sixteen of those inmates have since been executed — the most recent on Thursday, when Chadwick Banks was put to death in Florida.

Part Two: When lawyers stumble, only their clients fall:

[A]n investigation by The Marshall Project has found that in at least 80 capital cases in which lawyers have missed the deadline — sometimes through remarkable incompetence or neglect — it is almost always the prisoner alone who suffers the consequences.

Among the dozens of attorneys who have borne some responsibility for those mistakes, only one has been sanctioned for missing the deadline by a professional disciplinary body, the investigation found.  And that attorney was given a simple censure, one of the profession's lowest forms of punishment. The lack of oversight or accountability has left many of the lawyers who missed the habeas deadlines free to seek appointment by the federal courts to new death-penalty appeals.

November 18, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack (0)