Thursday, April 28, 2016
Lots of discussion of felon disenfrachisement after Virginia Gov boldly restores voting rights
A new set of commentaries about felon disenfranchisement are among the valuable consequences of Virginia's Gov using his executive clemency power to restore voting rights to more than 200,000 former felons. Here is a sampling:
From The Atlanic here, "The Racist Roots of Virginia's Felon Disenfranchisement: A century ago, the commonwealth's leaders weren't circumspect about their motives."
From the Chicago Tribune here, "Why felons should be allowed to vote"
From Fox News here, "Virginia's governor, Hillary Clinton and the felon vote"
From Huffington Post here, "Americans Don’t Think Ex-Offenders Should Lose Their Right To Vote: Millions aren’t allowed to vote, but Americans want that to change."
Prior related posts:
- Virginia Governor, bolding using his executive clemency authority, restores voting rights to over 200,000 former felons!!
- Virginia Gov explains his big decision to use his clemency power to restore franchise
"A Legal Definition of Leadership: Understanding Section 3B1.1 of the Federal Sentencing Guidelines"
The title of this post is the title of this new paper now available via SSRN authored by Marin Roger Scordato. Here is the abstract:
This Article offers a formal legal definition of “leadership” drawn from an unusual quarter: criminal sentencing. Sentencing guidelines that include adjustments based on the extent to which a defendant was a “leader” have spawned hundreds of appellate court cases attempting to develop a thoughtful, workable definition of the term. Reviewing these cases, this Article offers 25 separate characteristics courts have found material to a legal judgment as to whether an individual has been a leader within a criminal enterprise.
Eleven of these characteristics can be organized into three categories, which operate on the boundaries of the leadership concept. The first category contains those circumstances courts have found do not, by themselves, confer leadership status. For example, courts have found that controlling property alone does not make one a leader. The second category of leadership characteristics are those circumstances that are not, in themselves, sufficient to show a defendant is not a leader. For example, there may be more than one leader in a group, so the identification of one or more other leaders in a group does not preclude the possibility of characterizing a defendant as a leader as well. A third category of leadership focuses on the external group functions of leadership, the ways in which a leader monitors and mediates the points of contact between the group as a separate entity and important elements outside the group.
The remaining 14 characteristics comprise a fourth category that resides at the center of what courts find establishes leadership status. To courts, the gravamen of leadership is the control, organization, and responsibility for other group members. Examples of characteristics in this category are that a leader inspires members to make sacrifices for the group, possesses decision-making authority within the group, carries ultimate responsibility for the group’s success, and resolves disputes within the group.
This Article concludes by noting this formal legal definition of leadership, given its basis in criminal sentencing, has generated a set of leadership characteristics all of which appear to enjoy the possibility of general applicability to a broad range of factual contexts including standard business settings, but still notes how very far the formal legal definition of leadership is from conventional definitions grounded explicitly in a moral, value-laden context.
Wednesday, April 27, 2016
Reviewing the final SCOTUS oral argument week that was full of criminal justice issues
As noted in this post last week, three of the final five cases that the Justice were scheduled to hear during this last week of the Term's oral arguments involved criminal justice issue. The highest-profile and perhaps most consequential of these cases was argued today concerning the public corruption verdict against former Virginia Gov Bob McDonnell. Thanks to the always great folks at SCOTUSblog, I can link here to two posts about the McDonnell and to single post on the two other cases heard yesterday:
Intriguing intricate split Seventh Circuit panel discussing Indiana sentencing appeals and ineffective assistance of appellate counsel
A split Seventh Circuit panel handed down an interesting habeas opinion yesterday in Miller v. Zatecky, No. 15-1869 (7th Cir. April 26, 2016) (available here). One needs to be a hard-core habeas AND state sentencing fan to be fully engrossed by all the substantive issues covered in the majority panel opinion or the dissent. Still, there is some interesting extra (law-nerd?) spice in both opinions thanks to good work by their authors --- Circuit Judge Easterbook and District Judge Lynn Adelman (sitting by designation), respectively.
What struck me as blog-worthy from Miller, especially because I spend a lot of time thinking about how to make appellate review of federal sentences efficient and effective in a post-Booker world, was this passage and footnote from the dissent about Indiana state sentencing appeals:
Indiana appellate courts are authorized to independently “review and revise” sentences. Ind. Const. Art. 7, § 4; Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). This authority is implemented through Indiana Appellate Rule 7(B), which provides that the appellate court may revise a sentence if after due consideration of the trial court’s decision the appellate court finds the sentence is inappropriate in light of the nature of the offense and the character of the offender. Pierce, 949 N.E.2d at 352. As Miller shows in his brief, Indiana appellate courts have not hesitated to use this authority; he cites no less than 11 cases in which Indiana appellate courts shortened sentences in similar cases.[FN 2]
[FN 2] Pierce v. State, 949 N.E.2d 349 (Ind. 2011) (revising 124 year sentence on four counts of child molestation to 80 years); Sanchez v. State, 938 N.E.2d 720 (Ind. 2010) (revising total sentence of 80 years on three counts of child molestation to 40 years); Harris v. State, 897 N.E.2d 927 (Ind. 2008) (revising consecutive sentences of 50 years on two counts of child molesting to concurrent); Smith v. State, 889 N.E.2d 261 (Ind. 2008) (revising four consecutive sentences of 30 years each, a total of 120 years, to a total of 60 years); Monroe v. State, 886 N.E.2d 578 (Ind. 2008) (reducing sentence of 100 years to 50 years); Estes v. State, 827 N.E.2d 27 (Ind. 2005) (revising sentence of 267 years on 14 counts of child molesting and sexual misconduct with a minor to 120 years); Serino v. State, 798 N.E.2d 852 (Ind. 2003) (revising sentence of 385 years on 26 counts of child molestation to 90 years); Kien v. State, 782 N.E.2d 398 (Ind. Ct. App. 2003) (revising consecutive sentences of 40 years on three counts, a total of 120 years, to 80 years total); Ortiz v. State, 766 N.E.2d 370 (Ind. 2002) (revising 30 year consecutive sentences on child molesting counts to run concurrently); Haycraft v. State, 760 N.E.2d 203 (Ind. Ct. App. 2001) (revising 190 year sentence for child molesting and related offenses to 150 years); Walker v. State, 747 N.E.2d 536 (Ind. 2001) (revising consecutive sentences of 40 years on two counts of child molesting to be concurrent).
Former House speaker gets black hole of federal prison for 15 months after sentencing supernova
In this post yesterday, I explained why I called today's sentencing of former House Speaker Dennis Hastert a sentencing supernova. Today, this ABC News piece reports on the sentencing events and outcome in federal court this morning:
Former Speaker of the House John Dennis Hastert was sentenced today in federal court to 15 months in prison and two years of supervised release after he faced one of his accusers, who identified himself publicly for the first time as Scott Cross, a former Yorkville High School wrestling student.
Cross, who was until now identified in court documents only as “Individual D,” took the stand and introduced himself as a father, husband and businessman. Cross described his abuse by Hastert as “his darkest secret as he [Hastert] became more powerful.”
Hastert has also been required to comply with a sex offender treatment program. The sentence follows an almost year-long hush money case hinging on payments Hastert made to a student he allegedly sexually abused while acting as a wrestling coach at Yorkville High School in Illinois.
Cross said Hastert had "offered massages" to him in order to help him lose weight. He went on to describe a one-time incident when he was 17, saying Hastert "grabbed my penis and began to rub me. Stunned, I pulled up my shorts and ran out of the locker room.” Cross said he decided to testify after Hastert and his defense team reached out to his brother, Illinois politician Tom Cross, for a letter of support. Tom Cross served in the Illinois House of Representatives for 22 years. Scott Cross was on the varsity wrestling team at Yorkville High School when Hastert was a coach in the 1970s.
Using a walker, Hastert approached the judge. “I am deeply ashamed to be standing here today,” he said. “I know I am here because I mistreated some of my athletes that I coached. ... I want to apologize to the boys I mistreated. I was wrong and I accept that.” Judge Durkin referred to Hastert as a "serial child molester" while delivering the sentence.
The man formerly second in line for the presidency was wheeled into court this morning by attendants. In a January court filing, Hastert’s lawyers revealed that the former speaker’s health had rapidly declined following a stroke and a blood infection, and that he now needed “assistance for most daily activities.” Hastert technically faced a maximum penalty of five years.
Dozens of Hastert’s supporters have written letters to the judge asking for mercy, including former Republican Congressional leader Tom Delay, who called Hastert “a man of integrity. He loves and respects his fellow man.” CIA Director Porter Goss called Hastert “a rock solid guy with center-of-the country values.”
Hastert pleaded guilty in October to violating bank laws in connection with paying out hush money over the years allegedly to one of his victims, and in April his defense team made a filing publicly acknowledging the “harm” he caused to “others” for “misconduct that occurred decades ago.”
Seeking serious, sober, sophisticated substantive analysis: would Clinton or Trump be a "better" sentencing President?
After last night's primary results, I have resolved myself to the less-than-thrilling prospect of being presented in November with a Prez voting choice between Hillary R. Clinton and Donald J. Trump. On some issues unrelated to criminal justice systems, it likely will be easy to figure out which candidate is more likely to pursue (and achieve) policy developments that are more to my liking as a (moderate?) libertarian. But, as the question in the title of this post is meant to suggest, I am genuinely unsure whether Clinton or Trump would end up being a "better" sentencing President. (I have put the term "better" in quotes here because I fully recognize that lots of different people have lots of different views about what makes for a good President on sentencing issues; I hope thoughtful folks with lots of different prespectives will chime in.)
Back in 2008, I believed that then-candidate Barack Obama would prove to be a "better" sentencing President than Hillary Clinton or John McCain. (A big factor in this judgment was not just the Clintons' criminal justice track record, but especially Hillary's worrisome opposition to retroactive implementation of the small reduction in crack guideline sentences that the US Sentencing Commission completed in 2007.) In April 2012, based in part on the fact that Prez Obama did not live up to my hopes during his first term, I wrote this Daily Beast commentary making the point that "given policy and practical developments of recent years, there’s a good argument to be made that a President Romney could prove to be more likely to make real and long-term reforms to American criminal justice." In that commentary, I urged then-candidate Romney to "embrace what Right On Crime calls the 'conservative case' for criminal-justice reform, and in doing so appeal to groups of independent and minority voters (especially young ones) while demonstrating a true commitment to some core conservative values about the evils of big government."
Of course, Romney did not take my advice (and lost), and Prez Obama has proven much more committed to working on sentencing issues during the second half of his second term. Still, perhaps ironically, I think a Prez Romney would have ended up supporting AND getting enacted the kinds of federal statutory sentencing reforms that have been bogged down in Congress in recent years. I say this based in part on legislative reforms in the states, including my own Ohio: states lead by GOP govs have generally been more included to enact significant legislative sentencing reforms.
I set this all out because I genuinely think, no matter what your vision of "better" sentencing, it is now time to start some serious, sober and sophisticated substantive assessments what kind of sentencing President Hillary Clinton or Donald Trump might prove to be. In many way, both seem to me to be comparable (and annoying) enigmas on sentencing law and policy: in the past, both have generally said only whatever seems politically useful at the time of their statements; in the future, both are sure to face challenges getting Congress to enact whatever criminal justice reform agendas they might pursue. So, I hope anyone who care a lot about these issues will help me try to start a robust, rigorous conversation on this front.
(For the record, I expect that, after nominations and party platforms become official this summer, I will do a series of Clinton vs. Trump posts on specific sentencing issues like the death penalty, clemency, and drug/white-collar sentencing.)
"Unlicensed & Untapped: Removing Barriers to State Occupational Licenses for People with Records"
The title of this post is the title of this lengthy new report from the National Employment Law Project. Here is an excerpt from its executive summary:
This paper examines the significant flaws in state occupational licensing criminal background check requirements. One barrier to employment that regularly appears in state occupational licensing laws is the blanket ban, which automatically disqualifies people with certain records. As a gauge for the frequency of blanket bans in licensing laws across the nation, the ABA Inventory reports over 12,000 restrictions for individuals with any type of felony and over 6,000 restrictions based on misdemeanors. In addition, the ABA Inventory reports over 19,000 “permanent” disqualifications that could last a lifetime and over 11,000 “mandatory” disqualifications, for which licensing agencies have no choice but to deny a license.
Another aspect of the barriers facing workers with records is the prevalence of overly broad criminal record inquiries. The rationale for far-reaching inquiries is ostensibly compelling — licensing agencies seek robust information to advance public safety and health. No research, however, supports the persistent misconception that a workplace is less safe if an employee has a past record. Thus, even seemingly rational inquiries frequently operate as overly broad bans against anyone with a record.
License applicants with records face additional challenges presented by a lack of transparency and predictability in the licensure decision-making process and confusion caused by a labyrinth of different restrictions. Requirements for a single occupation vary widely across states, as do the standards applied to evaluate past offenses. Further complicating matters, the statutory language and procedures governing individual, or classes of, professions often differ from more general state licensing statutes.
Tuesday, April 26, 2016
Fascinating backstory behind big donation behind new "Criminal Justice Reform Center" at SMU Dedman School of Law
This local story out of Dallas, headlined "Deason and Koch give $7 million to SMU Dedman Law for criminal justice reform," tells an old criminal justice story from decades ago that in part explains the origins of a new criminal justice research center. Here are the details:
Dallas businessman Doug Deason was 17-years-old when he held a party at a neighbor’s house while they were gone. Booze flowed. Music was loud. Cops were called. “The couple’s son gave me a key and things got out of hand,” said Deason, who was charged with felony burglary.
Deason’s parents hired a well-connected criminal defense lawyer, who convinced prosecutors to lower the charge to misdemeanor trespassing and to agree to expunge his record if he stayed clean for a year. “A felony could have ruined my life, as I would have been forced to check that box on every school and job application,” said Deason, who is the son of Affiliated Computer Services founder Darwin Deason. “There are a lot of people who make a mistake like I did and end up paying for it for their entire life.”
That was 1979 in northwest Arkansas. Tuesday in Dallas, Deason announced that he and his family’s foundation donated $3.5 million to Southern Methodist University’s Dedman School of Law to create a legal institute that conducts innovative research and educational outreach efforts designed to promote criminal justice reform in Texas and beyond.
The Deason Family Criminal Justice Reform Center will conduct statistical and analytical studies ranging from pre-trial procedures, sentencing disparities and pre-trial diversion, abuses of asset seizure and forfeiture laws and wrongful convictions.
SMU Dedman Law Dean Jennifer Collins said the Deason gift combined with a matching $3.5 million contribution by the Charles Koch Foundation will fully fund the center, which will be located on the law school campus. “We hope this center generates statistical research that is part of the national conversation about criminal justice reforms,” Collins said. “The plan is to bring in visiting faculty members who are experts and to get students involved in research and to generate course ideas that allow students to interact with the experts.”
“This tremendous opportunity is happening only because of Doug Deason’s passion for this issue and his passion for SMU,” she said. Collins said the combined $7 million allows the law school to hire an executive director, an outreach director and additional faculty in the field....
Criminal justice experts say the center should investigate the effectiveness of prison educational and training programs. They point out that the Georgia Department of Corrections once had a program that allowed inmates to study and obtain college degrees or associates degrees in various tradecrafts while incarcerated. The recidivism rate for such inmates when they were released was less than 10 percent while the overall prison population recidivism rate exceeded 60 percent. However, the program was halted after victim’s rights groups and conservative Republican political leaders condemned the efforts as being soft on crime.
Deason, himself a Republican, said many in his own political party are shortsighted when it comes to “doing what’s right and what’s effective” in the area of criminal justice. He said the decision by Virginia Gov. Terry McAuliffe, a Democrat, to restore voting rights to 200,000 former felons who have served their entire sentences and remained clean is “awesome.”
“If they’ve paid their debt to society and taken the necessary steps, then why not give them a better chance to re-emerge into society to live a successful and dignified life,” he said.
Deason, who is the president of Deason Capital Services, has pushed Congress to reduce mandatory minimum sentences of non-violent drug offenders. The proposal passed the U.S. Senate Judiciary Committee 15 to 5. He pointed out that Texas Sen. John Cornyn voted for the bill, while Sen. Ted Cruz voted against it.
“There’s an extreme right wing that doesn’t understand this issue or they are politically afraid to do the right thing,” Deason said, which he said is ironic because he and the Koch brothers support the measure with President Obama. “I was lucky enough to get a second chance,” he said. “Other less fortunate people deserve that same opportunity.”
You be the judge for "sentencing supernova": what punishment for former House speaker Dennis Hastert for structuring (and sex) offenses?
I have decided to call tomorrow's scheduled sentencing for former House speaker J. Dennis Hastert a "sentencing supernova." As science geeks know, and as this Wikipedia entry explains, a supernova is "an astronomical event that occurs during the last stellar evolutionary stages of a massive star's life, whose dramatic and catastrophic destruction is marked by one final titanic explosion." I consider any former speaker of the House to be a "massive star" and I look at his coming sentencing as the culmination of a "dramatic and catastrophic destruction" as it was slowly unearthed by federal authorities that he was committing federal banking offenses in order to pay hush money to one (of now it appears many) of Hastert's long-ago sex abuse victims.
I also am thinking of Hastert's sentencing in "supernova" terms because there are so many dynamic and debatable sentencing issues swirling around his case. This recent Chicago Tribune article, headlined "More than 40 letters in support of Hastert made public before sentencing," reviews just some of the sentencing issues in play (with my emphasis added):
More than 40 letters in support of former U.S. House Speaker Dennis Hastert — including one from his former congressional colleague Tom DeLay — were made public Friday evening in advance of his sentencing next week on hush money charges.
"We all have our flaws, but Dennis Hastert has very few," wrote DeLay, the Texas Republican who served as majority leader under Hastert in the early 2000s. "He doesn't deserve what he is going through. I ask that you consider the man that is before you and give him leniency where you can."...
Also included were letters from Hastert's wife, Jean, and sons Joshua and Ethan, who wrote of his devotion to his family and his good deeds as a coach, teacher and later as a politician. They also wrote of concerns over his failing health — Hastert's lawyers have said he suffered a stroke and near-fatal blood infection last year that left him hospitalized for weeks. "This has taken a terrible toll on our family," his wife wrote. "I am particularly worried that if he is taken from his home and the care he needs, his health will continue to deteriorate."
Hastert, 74, faces probation to up to five years in prison when he is sentenced Wednesday, although his plea agreement with prosecutors calls for a sentence of no more than six months behind bars. He pleaded guilty in October to one count of illegally structuring bank withdrawals to avoid reporting requirements, admitting in a plea agreement that he'd paid $1.7 million in cash to a person identified only as Individual A to cover up unspecified misconduct from decades earlier.
In a bombshell sentencing memorandum filed earlier this month, prosecutors alleged Hastert had sexually abused at least four wrestlers as well as a former team equipment manager when he was coach at Yorkville [more than 35 year ago]. The abuse allegedly occurred in hotel rooms during team trips and in almost-empty locker rooms, often after Hastert coaxed the teens into a compromising position by offering to massage them, prosecutors said. The filing also alleged that Hastert set up a recliner chair outside the locker room showers in order to sit and watch the boys....
When he was confronted by FBI agents about the unusual bank withdrawals in December 2014, Hastert lied and said he was just keeping his money safe because he didn't trust security at the banks, according to prosecutors. Later, he accused Individual A of extorting him by making false accusations of sexual abuse and even agreed to record phone conversations for the FBI — a gambit that fell apart when agents realized it was Hastert who was lying, according to prosecutors.
I have highlighted above the notable fact, thanks to a shrewd plea deal in this case, Hastert's punishment is statutorily limited to a prison sentencing range of zero to five years and that prosecutors are bound to recommend a sentence of no more than six months imprisonment. Prosecutors cut this deal, I suspect, because they realize that Hastert's old age and poor health and recent history of public service would make unlikely that a judge would sentence him to a very lengthy prison term.
That all said, it appears nearly undisputable that Hastert did sexually abuse numerous boys while serving as a wrestling coach decades ago and essentially got away with these crimes. (It is my understanding that the statute of limitations has passed so that he could not now be prosecuted for them.) His more recent bank/money structuring crimes are, of course, connected to these long-ago terrible crimes and Hastert also actively lied to public officials in a manner that could also have readily brought separate serious criminal charge for obstruction of justice.
Based on all these facts, I could make reasonabe arguments for sentences ranging from probation to five years, and I also could imagine lots of arguments for creative alternative sentencing terms instead of (or in addition to) a prison stint. For example, I believe some members of the community have urged the judge to require Hastert to make significant payment to groups that work with sexually abused boys. And perhaps one could strain to read federal law to argue that all of those abused by Hastert long ago are still technically victims of his more recent offenses and thus should be able to obtain some kind of restitution through his sentencing. (This would seem to be stretch, but there are reports that some other "victims" are planning to testify at Hastert's sentencing.)
So I sincerely wonder, dear readers, what supernova sentence you think should be impose in this case?
April 26, 2016 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (37)
Detailing the death penalty's desuetude in two notable states
I recent came across these two notable extended articles discussing the notable extended difficulties that two notable states have recently experienced in trying to get any of their condemned death row murderers to an execution chamber. Here are the headlines with links and subheadlines from the pieces:
From Arizona: "Is the death penalty in Arizona on life support?: A judge will rule any day now on whether Arizona can resume executions; meanwhile, the state's limited drug supply is about to expire. Where does that leave capital punishment?"
From North Carolina: "These days, NC’s death row inmates die of natural causes: Nine have died of natural causes since the state’s last execution in 2006; Death row, like the prison population overall, is aging; The oldest death row inmate, Blanche Moore, is now 83"
Virginia Gov explains his big decision to use his clemency power to restore franchise
I noted in this post last Friday that Governor Terry McAuliffe of Virginia used his executive clemency power to restore voting rights to more than 200,000 former felons. Since then, I came across this Medium piece in which the Gov explains his actions. Here are excertps:
We are all familiar with Virginia’s long history of discrimination at the ballot box, culminating in the 1902 constitution establishing a poll tax, literacy and knowledge tests, and broader restrictions on individuals with felony convictions.
The 1965 Voting Rights Act eliminated many of those barriers. However, Virginia continued to enforce one of the most restrictive laws in the country regarding the restoration of voting and civil rights for individuals who have been convicted of felonies but who complete their sentences and probation or parole. Over the last two years, our administration has worked tirelessly to simplify the restoration process. We restored the rights of more than 18,000 Virginians, which is more than the past 7 governors combined over their full four-year terms.
We worked to reform the process by reducing the waiting period for more serious offenders from five years to three, classifying all drug-related convictions as non-violent, shortening the application for more serious offenders from 13 pages to one page, removing a requirement that individuals pay their court costs before they can have their rights restored, and ensuring that a notation will be included in an individual’s criminal record designating that his or her rights have been restored.
While I am proud of the progress we have achieved, I wasn’t satisfied to leave so many men and women in our Commonwealth barred from full citizenship. [On Friday] we restored the voting and civil rights of more than 200,000 Virginians who have served their time and completed supervised release.
This action means that these disenfranchised Virginians will immediately regain the right to register to vote, to run for office and to serve on a jury. It means that these Virginians, who have served their sentences and returned to live in our communities, will no longer be second class citizens who must jump through onerous hoops to have a voice in our society. And it means that Virginia can close a difficult chapter in our history and open a new one where, instead of building barriers to the ballot box, we work together to break them down.
Some have suggested this action was politically motivated, or that it is wrong to restore the rights of felons who have committed more serious crimes, even if they have served their sentences. I would encourage those critics to meet with some of the men and women whose rights we have restored throughout my term. Who have reentered society seeking a second chance and who have waited years, sometimes decades, to become whole members of our society again. And who have broken down in tears as I signed their restorations on “the best day of their lives.”
If we are going to build a stronger Virginia, we must open doors to participation in civic life for people who return to society seeking a second chance. We must welcome them back and offer the opportunity to build a better life by taking an active role in our democracy. I believe it is time to cast off Virginia’s troubling history of injustice and embrace an honest, clean process for restoring the rights of these men and women.
Prior related posts:
- Virginia Governor, bolding using his executive clemency authority, restores voting rights to over 200,000 former felons!!
"Roadmap to Reentry: Reducing Recidivism Through Reentry Reforms at the Federal Bureau of Prisons"
The title of this post is the title of this new programming publication from the US Department of Justice. Here is part of its "Overview":
Each year, more than 600,000 citizens return to neighborhoods across America after serving time in federal and state prisons. Another 11.4 million individuals cycle through local jails. And nearly one in three Americans of working age have had an encounter with the criminal justice system — mostly for relatively minor, non-violent offenses, and sometimes from decades in the past. Federal prisoners are held at the Bureau of Prisons (BOP), a law enforcement agency of the U.S. Department of Justice and the country’s largest and most complex prison system — housing nearly 200,000 prisoners in 122 federally-operated correctional institutions, 13 privately-operated secure correctional facilities, and a network of more than 175 community-based centers around the country....
The long-term impact of a criminal record prevents many people from obtaining employment, housing, higher education, and credit — and these barriers affect returning individuals even if they have turned their lives around and are unlikely to reoffend. These often-crippling barriers can contribute to a cycle of incarceration that makes it difficult for even the most wellintentioned individuals to stay on the right path and stay out of the criminal justice system. This cycle of criminality increases victimization, squanders our precious public safety resources, and wastes the potential of people who could be supporting their families, contributing to the economy, and helping to move our country forward.
Under the Obama Administration, the Department of Justice has already taken major steps to make our criminal justice system more fair, more efficient, and more effective at reducing recidivism and helping formerly incarcerated individuals return to their communities. In 2011, the Department established the Federal Interagency Reentry Council, a unique Cabinet-level effort to remove barriers to successful reentry. The Reentry Council, which now includes more than 20 federal departments and agencies, has developed significant policies and initiatives that aim not only to reduce recidivism, but also to improve public health, child welfare, employment, education, housing, and other key reintegration outcomes.
To ensure that all justice-involved individuals are able to fulfill their potential when they come home, Attorney General Lynch has launched a major effort to support and strengthen reentry programs and resources at BOP. These principles of reform — known as the Roadmap to Reentry — will be implemented throughout BOP, deepening and further institutionalizing the Department’s commitment to reentry. These efforts will help those who have paid their debt to society prepare for substantive opportunities beyond the prison gates; promoting family unity, contributing to the health of our economy, and sustaining the strength of our nation.
The Department has also established full-time positions to promote reentry work at BOP, the Executive Office for United States Attorneys, and the Office of Justice Programs; this includes hiring the first-ever Second Chance Fellow — a formerly incarcerated individual with deep expertise in the reentry field — to assist in development of reentry policy initiatives. BOP established a new Reentry Services Division to better equip inmates with the tools needed for success outside the prison walls, including expanded mental health and substance abuse treatment programs and improved work and educational opportunities. Through the community of U.S. Attorneys, the Department participates in reentry and diversion courts in more than 50 judicial districts nationwide. And the Department supports state, local, and tribal reentry efforts by providing resources under the Second Chance Act of 2007: the Department’s Office of Justice Programs has made nearly 750 Second Chance Act grants totaling more than $400 million, and established a National Reentry Resource Center that serves as a one-stop resource for returning citizens, advocates, and stakeholders.
April 26, 2016 in Collateral consequences, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)
Monday, April 25, 2016
Deep thoughts about sentencing, sentencing rules, and sentencing rule-making
I just came across these two interesting new papers on SSRN that raise lots of interesting and deep thoughts about both sentencing outcomes and sentencing rules and sentencing decision-making:
Confronting Political Disagreement About Sentencing: A Deliberative Democratic Framework by Seth Mayer & Italia Patti
Abstract: There is broad agreement that the American criminal sentencing system is deeply flawed, yet current theoretical frameworks for sentencing have failed to offer a way forward for reform. These frameworks have not faced up to political disagreement. Instead, they either try to impose disputed moral theories or they downplay normative considerations and seek to impose numerically consistent, rather than normatively justified, sentences. The failures of both approaches are in evidence in the process that led to the development of the United States Sentencing Guidelines.
This Article is the first to offer a framework to directly and effectively confront political disagreement. It draws on deliberative democratic conceptions of legitimacy to develop a framework for sentencing that addresses disagreement. Deliberative democracy offers a normatively grounded approach to managing disagreement through collective reasoning, which aims to place the legal system under public control. This Article articulates criteria for evaluating legal systems from the perspective of a particular conception of deliberative democratic legitimacy and offers reforms to enable the current system to better embody those criteria.
Rules, Standards, Sentencing, and the Nature of Law by Russell Covey
Abstract: Sentencing law and practice in the United States can be characterized as an argument about rules and standards. Whereas in the decades prior to the 1980s when sentencing was largely a discretionary activity governed only by broad sentencing standards, a sentencing reform movement in the 1980s transformed sentencing practice through the advent of sentencing guidelines and mandatory minimum provisions. As a result, sentencing became far less standard-like and far more rule-like. Although reform proponents believed that this "rulification" of sentencing would reduce unwarranted sentencing disparities and enhance justice, it is far from clear that these goals were achieved. Indeed, the debate between sentencing reformers and their critics is a paradigmatic illustration of the limits of relying upon modifications of legal form to enhance substantive justice.
Building upon the work of legal theorists who have considered the rules versus standards conundrum, this article uses sentencing law as a lens to view some of the fundamental perplexities that bedevil law's grander aspirations -- for determinacy, fairness, even coherence itself. Because, it is argued, refinements in legal form will never achieve the substantive goals to which law strives, the Essay urges a turn away from formal equality and toward a conception of sentencing justice that is centered on process values such as respect for those affected by sentencing decisions, concern that all voices be adequately heard, and decision making that reflects the considered moral judgment of the decision maker.
New speech by Justice John Paul Stevens reflects on Justice Antonin Scalia and the Court's constitutional work before and after Apprendi
A helpful reader alerted me to this notable new speech given today by Justice John Paul Stevens at the Washington University School of Law. The speech is titled "Some Thoughts about a Former Colleague," and much of the discussion is a review of the McMillan, Watts, Apprendi, Harris, Blakely, Alleyne and Hurst decisions from the Supreme Court over the last three decades. The speech also notes disagreements between Justices Stevens and Scalia in the Second and Eighth Amendment contexts, and concludes with some comments about original intent as a mode of constitutional interpretations.
My quick review of the speech did not lead me to find any surprising revelations, but it did lead me to conclude that Justice Stevens is pleased that, in his words, a "consensus  has developed around Apprendi's rule since it was first announced in a 5-4 decision 16 years ago." I also found quite notable that the Booker decision did not get any mention in the discussion.
Notable dissent from Eighth Circuit panel ruling affirming re-imposed stat-max 10-year sentence for possessing unregistered sawed-off shotgun
A helpful reader alerted me to an intriguing ruling by a split Eighth Circuit panel today in US v. Webster, No. 15-3020 (8th Cir. April 25, 2016) (available here). Here is the key substantive paragraph from the majority per curiam ruling in Webster:
Webster’s challenge to the substantive reasonableness of his sentence is reviewed under a deferential abuse-of-discretion standard. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). As Webster notes, the district court imposed the same sentence on remand as Webster received in the first sentencing, and this court identified in the first appeal several mitigating sentencing factors that indicated a reasonable probability Webster would have received a shorter sentence but for the sentencing error. See Webster, 788 F.3d at 893. However, the fact that this court “‘might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.’” Feemster, 572 F.3d at 462 (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). While “substantive review exists, in substantial part, to correct sentences that are based on unreasonable weighing decisions,” United States v. Kane, 639 F.3d 1121, 1136 (8th Cir. 2011) (quotation omitted), this court “must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Feemster, 572 F.3d at 461-62 (quoting Gall, 552 U.S. at 51). In reimposing the 120-month sentence, the district court commented in part that the Guidelines did not adequately take into account the seriousness of the offense: Webster had discharged the subject firearm into a fleeing vehicle, narrowly missing the driver. See U.S.S.G. § 5K2.6 (stating that court may depart if weapon was used in commission of offense; extent of increase depends on dangerousness of weapon, manner it was used, and extent its use endangered others; discharge of firearm may warrant “substantial sentence increase”). In short, after careful review, this court cannot say that this is the “unusual case” where the district court’s sentence will be reversed as substantively unreasonable. See Feemster, 572 F.3d at 464.
Judge Bright's dissent from this decision by the majority is what really makes Webster worth a full read by sentencing fans. Here are excerpts that provide a taste for why (with emphasis in the original and some cites omitted):
[O]ur reversal on the basis of substantive unreasonableness is often left to a district court’s decision to vary below the Guideline range. Rarely, if ever, do we hold sentences above the Guideline range substantively unreasonable. The pattern of failing to reverse above-Guideline sentences on the basis of substantive unreasonableness perpetuates our broken sentencing system.
As discussed by Former Attorney General Eric Holder, the problem with the federal sentencing system is the “outsized, unnecessarily large prison population.” See Eric Holder, Attorney Gen. of the U.S., U.S. Dep’t of Justice, Remarks at the Annual Meeting of the American Bar Association’s House of Delegates (Aug. 12, 2013), available at http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech- 130812 .html. As the Attorney General stated, “too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.” Id. Our sentencing policy has also resulted in “harsher punishments” for “people of color” throughout the United States. Id. The White House recently highlighted the “decades of overly punitive sentencing policies” through the commutation of numerous prison terms....
Webster is an African-American man with a high school education. At the time of the offense, Webster had no employment record and came from a broken home. In spite of his adverse life circumstances, Webster has a limited criminal record with the lowest category criminal history score. At the resentencing hearing, Webster also informed the district court of his completion of a 14-hour drug treatment program, and attendance at both anger management and victim impact classes. (Resent’g Tr. 11- 12). Thus, in the year between Webster’s original sentence and the resentencing hearing, Webster showed the ability for successful rehabilitation....
Further, Webster was 20-years-old at the time of the offense. Since 2005, the Supreme Court, has consistently held young people are most likely to change during a period of incarceration. In fact, psychological research indicates the human brain does not reach its ultimate stage of development until adolescents reach their mid-twenties....
Based on the current move in this country to shorten federal sentences, coupled with Webster’s age , criminal history, education level, remorse, and efforts to rehabilitate himself, the district court’s punishment may well be excessive “under the totality of the circumstances in this case, judged in light of all of the § 3553(a) factors.” Kane, 639 F.3d at 1136. Therefore, I would vacate Webster’s sentence and remand for reconsideration consistent with this opinion.
"A Shared Sentence: The Devastating Toll of Parental Incarceration on Kids, Families and Communities"
The title of this post is the title of this recently-released policy report from The Annie E. Casey Foundation. Here is how the report's introduction get started:
The saying is all too familiar: Do the crime, do the time. But in America’s age of mass incarceration, millions of children are suffering the consequences of their parents’ sentences and our nation’s tough-on-crime practices.
These children feel the absence of that adult — whether it is several nights in jail or years in prison — in myriad ways, even if they weren’t sharing a home. They feel it when their refrigerator is bare because their family has lost a source of income or child support. They feel it when they have to move, sometimes repeatedly, because their families can no longer afford the rent or mortgage. And they feel it when they hear the whispers in school, at church or in their neighborhood about where their mother or father has gone.
Incarceration breaks up families, the building blocks of our communities and nation. It creates an unstable environment for kids that can have lasting effects on their development and well-being. These challenges can reverberate and multiply in their often low-income neighborhoods, especially if they live in a community where a significant number of residents, particularly men, are in or returning from jail or prison. And different obstacles emerge once parents are released and try to assume their roles as caregivers, employees and neighbors.
This report recommends policies and practices that put the needs of children of incarcerated parents first. We call on correctional systems, communities and state and local public agencies to help stabilize families and preserve their connections during incarceration — and successfully move forward once parents come home.
Republican National Committee adopts resolution urging criminal justice reform in Congress
This Daily Signal article, headlined "Republican Leaders Throw Weight Behind Prison Reform," reports on a notable development during the RNC's Spring Meeting in Florida last week. Here are the details:
The Republican National Committee [on Friday] adopted a resolution in support of reforming the nation’s criminal justice laws, in a significant sign of bipartisan consensus to undo mass incarceration in America. In the one-page resolution, obtained by The Daily Signal, the RNC commends conservative-led states that have adopted policies to reduce their prison populations — such as Texas, Alabama, and Georgia — and urged Congress to act as well.
“This is the Republican Party coming together and saying criminal justice reform is an issue that needs to be addressed, and I think it’s sending a message that the RNC wants to make certain Congress has this as one of its top priorities,” said Telly Lovelace, the Republican National Committee’s director for urban media.
Lovelace added: "It’s the first time the RNC has taken a significant step like this on criminal justice reform, as the issue is sweeping the country, with conservative states leading the way in adopting policies to deal with it. Criminal justice reform is an issue that impacts all Americans, no matter which part of the country they live in."
The RNC’s official position supporting prison reform was one of 10 resolutions announced to committee members today during the national GOP organization’s spring meeting in Hollywood, Fla.... Each resolution is voted on by nine committee members, including RNC Chairman Reince Priebus.
Criminal justice reform is thought to be one of the few areas where Congress and President Barack Obama can work together to enact a substantive law during a contentious election year. Both the Republican-led House and Senate judiciary committees have advanced legislation that would shorten prison sentences for low-level nonviolent drug offenders and allow well-behaved inmates to earn time off their prison terms.
But on the Senate side, some conservatives have argued that the Judiciary Committee’s proposal would allow violent felons the chance to be released from prison early. The bill’s authors, including Judiciary Chairman Chuck Grassley, R-Iowa, Majority Whip John Cornyn, R-Texas, and Mike Lee, R-Utah, have fought that characterization. They recently made revisions to the legislation to satisfy critics.
Mark Holden, a top lawyer at Koch Industries, one of the biggest proponents of criminal justice reform on the conservative side, says he hopes the Republican National Committee’s resolution pushes skeptical conservatives in Congress to support the effort. “The RNC position makes it clear that Republicans can and should continue to lead on this critically important issue as they have for the past several years,” Holden told The Daily Signal in an emailed statement...
In its resolution, the RNC notes that the federal prison population, over which Congress has jurisdiction, increased 734 percent from 1980 to 2015, while taxpayer dollar spending on the prison system spiked 595 percent in that same period. The resolution states that taxpayers “are not receiving the public safety return they deserve because lengthy prison terms increase recidivism rates for low-level offenders.”
In addition to supporting treatment options for drug addicts, and other policies to reduce the number of re-offenders, the RNC calls for “mens rea” reform. That would require prosecutors to prove that certain criminal suspects knowingly intended to break the law.
The text of this resolution does not yet appear to be posted on the RNC's website, but I will post it once it becomes available.
SCOTUS grants cert on two new criminal cases
The Supreme Court, as previewed here, is wrapping up the oral arguments of its current Term with a considerable amount of criminal law work. And today, via this new order list, the Justices took up two new criminal law cases for its docket next Term. Here are the cases and the issues via SCOTUSblog for the two cases taked up by the Justices today:
Issue: Whether a notice of appeal from a sentencing judgment deferring restitution is effective to challenge the validity of a later-issued restitution award.
Issue: Whether, in the bank-fraud statute, 18 U.S.C. § 1344, subsection (1)’s “scheme to defraud a financial institution” requires proof of a specific intent not only to deceive, but also to cheat, a bank, as nine circuits have held, and as petitioner argued here.
Sunday, April 24, 2016
American Enterprise Institute leader explains why we need to reform "the status quo in criminal justice"
Arthur C. Brooks, president of the American Enterprise Institute (AEI), has this notable new commentary explaining the role his organization is playing in National Reentry Week and in broader criminal justice reform efforts. (For those who do not know, AEI is a public-policy group "committed to expanding liberty, increasing individual opportunity and strengthening free enterprisehe status quo in criminal justice," with GOP politicians like Dick Cheney and Peter Coors and many corporate titans on its Board of Trustees.) The piece is titled "Reforming the status quo in criminal justice," and here are excertps (with links and emphasis from the original):
On Monday morning, AEI is co-hosting a discussion on America’s criminal justice system with the White House and the Brennan Center for Justice. The event will kick off at 10:00 am EDT on Monday April 25 in the Eisenhower Executive Office Building, next door to the White House. You can livestream my introductory remarks and the entire event on the White House’s website, and our team will be sharing parts of it in real time on Twitter.
At first blush, this kind of event might seem a little unusual. A Democratic administration, a major university’s criminal justice center, and a free-enterprise-focused think-tank coming together to discuss mass incarceration? That kind of diverse collaboration is not exactly commonplace in Washington, D.C.
But we believe that collaboration and open discussion are possible across the political spectrum. We jump at opportunities to bring our principles into good-faith dialogue and debate with colleagues of all views on critical subjects. (For more on this subject, check out a recent interview I gave to the “TED Radio Hour” podcast.)
Data show that only about one-third of incarcerated Americans get to participate in any education, vocational, or pre-release programs while behind bars. One professor who studies our prison population estimates that roughly half of all people in prison are functionally illiterate. And partially as a result of these factors, roughly two-thirds of all parolees wind up back in prison within three years of their release.
To be sure, excessive spending and economic inefficiency are serious consequences of this inefficient system. But the heaviest costs that America bears for this human capital tragedy are not material. They are moral. When we talk about a person who comes out of prison barely able to read and utterly unprepared for citizenship, we are talking about a person stripped of his basic dignity. When we see a person who is asked to re-enter productive society but has no plausible job prospects, we are looking at someone whose human potential has been badly stunted....
Through action and inaction alike, our society has effectively decided that there are millions of our brothers and sisters, the incarcerated and the formerly incarcerated, whom we simply do not need. At worst, we view them as human liabilities we must coexist with and manage at minimal cost; at best, as people we can tolerate and try to help. But as dormant assets to be enlivened and empowered? Hardly ever.
If we committed ourselves and our society to the moral principle that we need to need everyone, how would criminal justice policy change? That’s a question we at AEI are dedicated to exploring. My colleagues’ fascinating work on this topic already speaks for itself, and the year ahead will see us continue expanding our work on inmate education and re-entry.
A few recent related posts:
- Economists explain "Why Mass Incarceration Doesn’t Pay"
- "Department of Justice to Launch Inaugural National Reentry Week"
- White House Counsel on Economic Advisors releases big report providing "Economic Perspectives on Incarceration and the Criminal Justice System"
Hey Prez Candidate Kasich: why can't you figure out the formula to make capital punishment work (as it does in Georgia and Texas)?
The question in the title of this post is prompted by this AP article headlined "Georgia to carry out its 5th execution of the year this week." The piece reveals that the Peach State seems to have no problem securing lethal injection drugs for schedueld executions; meanwhile Ohio now has 25(!) condemned murderers scheduled for execution, but has been unable for three years to secure drugs to carry out these executions.
I am, generally speaking, a fan of Ohio Gov John Kasich, but in this arena he has not lived up to his campaign claims that he has "the formula" to make government work again. Before I continue with bashing of my governor, here are the basic 2016 executions details via the AP story from Georgia:
Georgia plans to carry out its fifth execution of the year on Wednesday when a man convicted in the 1998 killings of a trucking company owner and his two children is set to die. Daniel Anthony Lucas is scheduled to be executed at 7 p.m. Wednesday at the state prison in Jackson. Georgia executes inmates by injecting the barbiturate pentobarbital.
Lucas, 37, was sentenced to die in 1999 for the killings of Steven Moss, 37, his 11-year-old son Bryan and 15-year-old daughter Kristin, who interrupted a burglary at their home near Macon in central Georgia....
If Lucas is executed Wednesday, he will be the fifth person put to death in Georgia. That will match the record — set in 1987 and tied last year — for the most executions carried out in a calendar year in the state since the death penalty was reinstated nationwide in 1976. With eight months left in the year, it seems likely the state will set a new record this year.
His execution would also mean that Georgia has executed more inmates in a 12-month period than at any other time since reinstatement of the death penalty. Georgia has executed seven people in the last 12 months, starting with Kelly Gissendaner on Sept. 30. The only other time the state executed that many people in a 12-month period was when seven inmates were put to death between October 2001 and August 2002.
Only four states have carried out executions this year for a total of 12. Aside from the four executed in Georgia so far, six inmates have been put to death in Texas and one each in Alabama and Florida.
This DPIC list of completed 2016 executions details that Georgia and Texas are completing executions with pentobarbital, which I believe is Ohio's execution drug of choice. I know there must be all sorts of legal and practical complications that prevents Ohio officials from simply getting execution drugs from these states, but that reality does not reduce the frustrations that everyone involved in capital justice in Ohio must have as this problems continues to fester and Gov Kasich continues to spend his time traveling to country talking about having the formula to make government work better.
I am busy finishing up a little article suggesting that, for practical and political reasons, most states would generally be wise to seek to end rather than mend its broken death penalty systems. And, in part for reasons hinted in this post, I am using Ohio's modern experience with death penalty administration as exhibit one in my discussion.
Saturday, April 23, 2016
White House Counsel on Economic Advisors releases big report providing "Economic Perspectives on Incarceration and the Criminal Justice System"
As highlighted in this prior post, Jason Furman, chairman of the White House Council of Economic Advisers, co-authored a New York Times commentary this past week headlined "Why Mass Incarceration Doesn’t Pay." Today, the full Council of Economic Advisers released this big new report titled "Economic Perspectives on Incarceration and the Criminal Justice System." Here is part of the lengthy report's lengthy executive summary:
Calls for criminal justice reform have been mounting in recent years, in large part due to the extraordinarily high levels of incarceration in the United States. Today, the incarcerated population is 4.5 times larger than in 1980, with approximately 2.2 million people in the United States behind bars, including individuals in Federal and State prisons as well as local jails. The push for reform comes from many angles, from the high financial cost of maintaining current levels of incarceration to the humanitarian consequences of detaining more individuals than any other country.
Economic analysis is a useful lens for understanding the costs, benefits, and consequences of incarceration and other criminal justice policies. In this report, we first examine historical growth in criminal justice enforcement and incarceration along with its causes. We then develop a general framework for evaluating criminal justice policy, weighing its crime-reducing benefits against its direct government costs and indirect costs for individuals, families, and communities. Finally, we describe the Administration’s holistic approach to criminal justice reform through policies that impact the community, the cell block, and the courtroom....
Criminal justice policies have the capacity to reduce crime, but the aggregate crime-reducing benefits of incarceration are small and decline as the incarcerated population grows.
- Given that the U.S. has the largest prison population in the world, research shows that further increasing the incarcerated population is not likely to materially reduce crime.
- Economic research suggests that longer sentence lengths have little deterrent impact on offenders. A recent paper estimates that a 10 percent increase in average sentence length corresponds to a zero to 0.5 percent decrease in arrest rates.
- Emerging research finds that longer spells of incarceration increase recidivism. A recent study finds that each additional sanction year causes an average increase in future offending of 4 to 7 percentage points.
Investments in police and policies that improve labor market opportunity and educational attainment are likely to have greater crime-reducing benefits than additional incarceration.
- Expanding resources for police has consistently been shown to reduce crime; estimates from economic research suggest that a 10 percent increase in police force size decreases crime by 3 to 10 percent. At the same time, more research is needed to identify and replicate model policing tactics that are marked by trust, transparency, and collaborations between law enforcement and community stakeholders.
- Labor market conditions and increased educational attainment can have large impacts on crime reduction by providing meaningful alternatives to criminal activity. Estimates from research suggest that a 10 percent increase in the high school graduation rate leads to a 9 percent drop in arrest rates, and a 10 percent increase in wages for non-college educated men leads to a 10 to 20 percent reduction in crime rates....
Given the total costs, some criminal justice policies, including increased incarceration, fail a cost-benefit test.
- Economic researchers have evaluated the costs and benefits of policies in different criminal justice areas and find that relative to investments in police and education, investments in incarceration are unlikely to be cost-effective.
- Moreover, cost-benefit evaluations of incarceration and sentencing often fail to consider collateral consequences, which would render these policies even more costly.
- CEA conducted “back-of-the-envelope” cost-benefit tests of three policies: increasing incarceration, investing in police, and raising the minimum wage.
- We find that a $10 billion dollar increase in incarceration spending would reduce crime by 1 to 4 percent (or 55,000 to 340,000 crimes) and have a net societal benefit of -$8 billion to $1 billion dollars.
- At the same time, a $10 billion dollar investment in police hiring would decrease crime by 5 to 16 percent (440,000 to 1.5 million crimes) have a net societal benefit of $4 to $38 billion dollars.
- Drawing on literature that finds that higher wages for low-income individuals reduce crime by providing viable and sustainable employment, CEA finds that raising the minimum wage to $12 by 2020 would result in a 3 to 5 percent crime decrease (250,000 to 510,000 crimes) and a societal benefit of $8 to $17 billion dollars.
Reviewing the week that was at Marijuana Law, Policy and Reform
Regular readers are familiar with my periodic collecting of posts from my Marijuana Law, Policy and Reform blog, and lots of recent content on that site are collections of materials put together by terrific students in my Ohio State College of Law seminar. Sadly, this seminar wrapped up this week, so this will be the last collection of MLP&R links that include student-generated postings:
"The Prison Reformer Who Champions Ted Cruz"
The title of this post is the headline of this notable new Ozy article about a notable supporter of Senator Ted Cruz, who also has played a bit role in sentencing reform in Maryland. Here is how it starts:
Michael Hough’s statehouse digs are filled with awards — from the American Conservative Union here, the Leadership Institute there. You can’t miss the gold-framed Declaration of Independence, the old George W. Bush campaign sign or the NRA logo carpet outside the state senator’s office. The photo of him and Ted Cruz glad-handing isn’t shocking, either, since Hough’s leading the presidential candidate’s primary efforts here in Maryland. What’s more surprising: the picture next to it — of Hough and his wife, posing with another White House hopeful. “My wife likes Donald,” the father of three says, painfully.
What’s a state campaign chairman to do? Hough’s received high praise as “a respected conservative leader” from Cruz himself, though the 36-year-old lawmaker faces not just a divided home, but a divided state — one that could go the way of his wife if polls hold true during Maryland’s primary on Tuesday. It’s just one of many apparent contradictions. Bespectacled with a slick, Cruz-ian comb-over, Hough today looks nothing like the long-haired rock star of his garage-band days. He’s an Air Force vet who never served outside Wyoming. And while he plays the part of a bona fide guns-and-faith conservative well, Hough’s most significant work is in … compassionate prison reform?
The Justice Reinvestment Act — which eases sentencing laws for nonviolent drug offenders and pushes offenders to treatment rather than prison — passed into law this month, in no small part thanks to Hough, who led the Republican efforts to craft it. He’s also helped push through bills limiting civil asset forfeiture (“You had the ACLU and the prosecutors support it, which never happens,” he brags) and reforming police conduct and accountability — without being “antipolice,” Hough claims. Popping open a Diet Coke, at just past 8 a.m., Hough calls the justice act the largest reform “in a generation” — and some experts agree it’s a doozy.
Yet, not everyone’s happy: “The Senate amended the life out of it,” the Maryland Alliance for Justice Reform’s Pat Schenck tells OZY. It’s something to build off of and “a once-in-a-lifetime bill,” says Keith Wallington of the Justice Policy Institute, if only because “Maryland has (historically) set the bar pretty low for justice reform.” And while an early proposal included a reduction in prisons and budget savings nearing $250 million over 10 years, the Senate version went down to “a paltry” $34 million, Wallington says. “That’s a little overblown,” Hough counters, though he agrees the budget savings in the final bill will be less than originally projected.
At first blush, this stalwart Republican seems like an unlikely advocate for addicts and rampant recidivists. But while GOPers such as Richard Nixon and Ronald Reagan birthed and expanded the war on drugs decades ago, red state leaders from Texas to Utah and Georgia have recently championed justice reform due to both compassionate conservatism and a response to “draconian laws” that proved costly yet rarely improved public safety, says Lauren Krisai with the Reason Foundation, a libertarian think tank. As a teen growing up with an alcoholic father, Hough knew the tug and pull of crime and addiction — the Nirvana fan got through those years fixing cars, dying his hair blond and red, and ignoring school to the tune of a 2.0 GPA — but as an adult he became an expert in addressing those problems. “We over-criminalize everything,” says Hough, whose non-legislature job is as a senior policy adviser on criminal justice for the Faith & Freedom Coalition. “This is where my Christianity and libertarianism come together.”
Friday, April 22, 2016
Split Kansas Supreme Court, reversing itself in real time, ultimately decides that state's lifetime sex offender registration law is constitutional
In a significant ruling today in the Supreme Court of Kansas, the Court splitting 4-3 upheld the state's sex offender registration laws via an opinion in Kansas v. Petersen-Beard, No. 108,061 (Kansas April 22, 2016) (available here). This opinion has one of the strangest first paragraphs you will ever read:
Henry Petersen-Beard challenges his sentence to lifetime post-release registration as a sex offender pursuant to the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq., as cruel and unusual punishment in violation of § 9 of the Kansas Bill of Rights and the Eighth Amendment to the United States Constitution. Because we find that lifetime registration as a sex offender pursuant to KORA is not punishment for either Eighth Amendment or § 9 purposes, we reject Petersen-Beard's argument that it is unconstitutionally cruel and/or unusual and affirm his sentence. In so doing, we overrule the contrary holdings of State v. Redmond, 304 Kan. ___, ___ P.3d ___ (No. 110,280, this day decided), State v. Buser, 304 Kan. ___, ___ P.3d ___ (No. 105,982, this day decided), and Doe v. Thompson, 304 Kan. ___, ___ P.3d ___ (No. 110,318, this day decided).
This local article, headlined "Sex offenders win and lose in unusual rulings by the Kansas Supreme Court," explains how the court issued three rulings on these matters today and then overruled those via its final ruling in Petersen-Beard:
In an apparently unprecedented series of rulings, the Kansas Supreme Court on Friday overruled three of its own Friday opinions regarding state sex offender registration laws. In three separate opinions issued Friday, the court found 2011 changes to the sex offender registry law cannot be applied retroactively to offenders convicted before the law took effect. But then in a fourth opinion also released Friday, the court found that those rulings were incorrect. The highly unusual circumstance appear to be the result of a one-justice change in the makeup of the court.
The panel that decided the three cases concerning the 2011 changes included a senior district court judge, who sided with the majority in the 4-3 decisions.
But for the fourth case, that district judge was replaced by the newest Supreme Court justice, Caleb Stegall. That case was also decided 4-3, with Stegall casting the deciding vote. The three justices who were part of the majority in the first three opinions became the minority in the fourth opinion.
The upshot was a finding that the Kansas law requiring lifetime registration for convicted sex offenders does not violate federal and Kansas constitutional protections against cruel and unusual punishment.
In the three other cases, the court ruled that offenders convicted of crimes before 2011 could not have their 10-year registration periods extended to 25 years because the 25-year law took affect after they committed their crimes. But those rulings apparently apply only to those three offenders. Others will be governed by the fourth ruling Friday.
April 22, 2016 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (8)
"Department of Justice to Launch Inaugural National Reentry Week"
The title of this post is the title of this official US Department of Justice press release. Here are excerpts from the release and details on a few of the planned events of the week that I am especially interested in:
As part of the Obama Administration’s commitment to strengthening the criminal justice system, the Department of Justice designated the week of April 24-30, 2016, as National Reentry Week. Attorney General Loretta E. Lynch and U.S. Department of Housing and Urban Development Secretary Julián Castro will travel to Philadelphia on MONDAY, APRIL 25, 2016, to hold events as part of National Reentry Week with public housing advocates, legal services providers and community leaders where they will announce new efforts to improve outcomes for justice-involved individuals including youth.
Later in the week, the Attorney General will visit a Federal Bureau of Prisons (BOP) facility in Talladega, Alabama, to highlight reentry programs in prison. Similarly, Deputy Attorney General Sally Q. Yates will visit a federal women’s prison in Texas and will later hold a media availability at Santa Maria Hostel, a specialized residential substance abuse, mental health and trauma facility. Acting Director Thomas Kane of the Bureau of Prisons will accompany both Attorney General Lynch and Deputy Attorney General Yates on their visits....
The Obama Administration has taken major steps to make our criminal justice system fairer, more efficient and more effective at reducing recidivism and helping formerly incarcerated individuals contribute to their communities. Removing barriers to successful reentry helps formerly incarcerated individuals compete for jobs, attain stable housing, and support their families. An important part of that commitment is preparing those who have paid their debt to society for substantive opportunities beyond the prison gates, and addressing collateral consequences to successful reentry that too many returning citizens encounter.
Leadership from across the Administration are traveling during National Reentry Week in support of these many events and are encouraging federal partners and grantees to work closely with stakeholders like federal defenders, legal aid providers and other partners across the country to increase the impact of this effort. National Reentry Week events are being planned in all 50 states, the District of Columbia, Puerto Rico and the Virgin Islands. U.S. Attorney’s Offices alone are hosting over 200 events and BOP facilities are holding over 370 events....
• On Monday, April 25, 2016, the White House will hold an event with the Brennan Center on the costs of incarceration.
• On Monday, April 25, 2016, Deputy Attorney General Sally Q. Yates will deliver remarks before a screening of “Pull of Gravity” a documentary that follows returning inmates as they encounter reentry obstacles, hosted by the Justice Department as part of National Reentry Week. Assistant Attorney General Leslie R. Caldwell of the Criminal Division will also participate....
• On Wednesday, April 27, 2016, the White House will host the Fair Chance Opportunities Champions of Change event in South Court Auditorium. Attorney General Loretta E. Lynch will deliver remarks and Deputy Attorney General Sally Q. Yates will moderate a panel at the event....
• On Thursday, April 28, 2016, the head of the Civil Rights Division, Principal Deputy Assistant Attorney General Vanita Gupta of the Civil Rights Division will deliver remarks at a reentry event at Mickey Leland Transitional Housing Facility, sponsored by the U.S. Attorney’s Office for the District of Columbia....
Iowa Supreme Court requires giving reasons for even a presumptive consecutive sentence, and concurrence laments when "sentencing is given short shrift"
I helpful reader alerted me to an interesting little decision from the Supreme Court of Iowa today that makes me fell extra good going into the weekend. For starters, the majority opinion in Iowa v. Hill, No. 15–0030 (Iowa April 22, 2016) (available here), reaches the important and valuable conclusion that a sentencing court must give reasons to justify a consecutive sentence even if the law creates a presumption for such a sentence. Second, a special concurring opinion by Justice Appel cites some of my scholarship to stress the point that sentencing proceedings should generally get a lot more attention.
Here is the start of the majority opinion in Hill:
In this appeal, we must decide whether the presumption for consecutive sentences in Iowa Code section 908.10A (2013) excuses the district court from the general requirement to state why it imposed a consecutive sentence and, if not, whether the district court’s stated reason for this consecutive sentence was adequate. The defendant pled guilty to failure to comply with sex-offender registry requirements, an offense he committed while on parole for the underlying sex crime. The district court imposed a two-year prison sentence consecutive to his parole revocation and stated, “The reason for the sentence is protection of the community, seriousness of the crime, and the nature and circumstances of the offense.” The defendant appealed on grounds that the sentencing court failed to give reasons for imposing a consecutive sentence. The court of appeals affirmed, concluding the statutory presumption for consecutive sentences obviated any need to give reasons for imposing the consecutive sentence. The dissenting judge disagreed, noting section 908.10A allows discretion to impose concurrent or consecutive sentences, requiring the sentencing court to give reasons for its choice. On further review, we hold the district court must give reasons for imposing a consecutive sentence under section 908.10A and that the reasons given in this case were insufficient. Accordingly, we vacate the decision of the court of appeals, vacate the sentencing order, and remand the case for resentencing.
And here are snippets from Justice Appel's special concurring opinion in Hill:
In this era of plea bargains, sentencing is often the most critical phase of a criminal proceeding.... But too often in our courtrooms, sentencing is given short shrift by the participants. There often seems to be an assumption that the process that led to the determination of guilt is generally sufficient to inform the court of the necessary information for sentencing....
Once a lawyer has fulfilled the distinct professional responsibilities related to sentencing, the district court must exercise its discretion in setting the sentence. Even in a case that seems less consequential than other matters on a court’s crowded docket, the impact on the parties with a stake in the sentencing decision is substantial and requires a careful, thoughtful discretionary decision by the district court. Sentencing is not a time to cut corners....
The decision regarding whether sentences are served concurrently or consecutively ... is often of great moment and, as the court recognizes, must be made separately from the underlying sentence on each count. A decision to impose a lengthy prison term for the underlying crimes is not the same as the geometric increase in incarceration that may result from a decision to run sentences consecutively. In considering the distinct question of whether to run sentences consecutively or concurrently, the district court must be careful to avoid mere boilerplate recitation and demonstrate an exercise of reasoned judgment.
Virginia Governor, bolding using his executive clemency authority, restores voting rights to over 200,000 former felons!!
Virginia today is surely a state for lovers of voting rights in light of this remarkable news via the New York Times: "Gov. Terry McAuliffe of Virginia used his executive power on Friday to restore voting rights to more than 200,000 convicted felons, circumventing his Republican-run Legislature." Here is more:
The action overturns a Civil War-era provision in the state’s Constitution aimed, he said, at disenfranchising African-Americans. The sweeping order, in a swing state that could play a role in deciding the November presidential election, will enable all felons who have served their prison time and finished parole to register to vote. Most are African-Americans, a core constituency of Democrats, Mr. McAuliffe’s political party.
Amid intensifying national attention over harsh sentencing policies that have disproportionately affected African-Americans, governors and legislatures around the nation have been debating — and often fighting over — moves to restore voting rights for convicted felons.
In Kentucky, Gov. Matt Bevin, a newly elected Republican, recently overturned an order enacted by his Democratic predecessor that was similar to the one Mr. McAuliffe signed Friday. In Maryland, Gov. Larry Hogan, a Republican, vetoed a measure to restore voting rights to convicted felons, but Democrats in the state legislature overrode him in February; an estimated 44,000 former prisoners who are on probation are now eligible to register to vote as a result.
“There’s no question that we’ve had a horrible history in voting rights as relates to African-Americans — we should remedy it,” Mr. McAuliffe said Thursday, previewing the announcement he made on the steps of Virginia’s Capitol, just yards from where President Abraham Lincoln once addressed freed slaves. “We should do it as soon as we possibly can.”
The action, which Mr. McAuliffe said was justified under an expansive legal interpretation of his executive clemency authority, goes far beyond what other governors have done, experts say, and will almost certainly provoke a backlash from Virginia Republicans, who have resisted measures to expand felons’ voting rights. It was planned in secrecy, and came amid an intensifying national debate over race, voting and the criminal justice system. There is no way to know how many of the newly eligible voters in Virginia will register, but Mr. McAuliffe said he would encourage all to do so. “My message is going to be that I have now done my part,” he said.
The Republican Party of Virginia quickly issued a statement accusing Mr. McAuliffe of “political opportunism” and “a transparent effort to win votes.”
“Those who have paid their debts to society should be allowed full participation in society,” said the statement, issued by the party chairman, John Whitbeck. “But there are limits.” He said the governor was wrong to issue a blanket restoration of rights, even to those who “committed heinous acts of violence.”
Only two states — Maine and Vermont — have no voting restrictions on felons. Of the remaining 48, 12 states disenfranchise felons after they have completed probation or parole, said Marc Mauer, executive director of the Sentencing Project, a Washington policy organization that advocates restoring felons’ voting rights. Virginia is one of four states — the others are Kentucky, Florida and Iowa — that impose the harshest restrictions. The Sentencing Project says one in five African-Americans in Virginia is disenfranchised....
Mr. Mauer called Mr. McAuliffe’s decision a stunning development, and one that will have lasting consequences because it will remain in effect at least until January 2018, when Mr. McAuliffe leaves office. It covers those convicted of violent crimes, including murder and rape. “This will be the single most significant action on disenfranchisement that we’ve ever seen from a governor,” Mr. Mauer said, “and it’s noteworthy that it’s coming in the middle of this term, not the day before he leaves office. So there may be some political heat but clearly he’s willing to take that on, which is quite admirable.”
Advocates who have been working with the governor say they are planning to fan out into Richmond communities Friday afternoon to start registering people. Until now in Virginia, felons were allowed to apply to have their voting rights restored, but the process could be cumbersome and those who have committed violent crimes faced a waiting period. That will be eliminated by Mr. McAuliffe’s action. “That is a huge deal,” said Tram Nguyen, an executive director of the New Virginia Majority, an advocacy group. “We talk about needing to raise up your voice so that we can impact policy makers, and these people are saying to us, ‘We don’t have a voice, no one is going to listen to us, we don’t even have our right to vote.’ ”
Experts say that with the stroke of his pen, Mr. McAuliffe has allowed convicted felons to begin registering to vote, and that their voting rights cannot be revoked — even if a new governor rescinds the order. But the move could expose the governor to accusations that he is playing politics; he is a longtime friend of — and top fund-raiser for — Hillary Clinton, the likely Democratic nominee for president, and former President Bill Clinton....
The order builds on steps the governor has previously taken to restore voting rights to 18,000 Virginians since the beginning of his term, and he said he believed his authority to issue the decision was “ironclad.” Professor A. E. Dick Howard of the University of Virginia School of Law, who was the principal draftsman of a revised Constitution adopted by Virginia in 1971, agreed, and said the governor had “ample authority.” But Professor Howard, who advised Mr. McAuliffe on the issue, said the move might well be challenged in court. The most likely argument, he said, is that the governor cannot restore voting rights to an entire class of people all at once. “I’m assuming that the complaint will be that he has to act one pardon at a time, one person at a time, that he’s not permitted to act wholesale,” Professor Howard said. “I think the language of the Constitution and the theory of the pardoning power all point to the same conclusion — that he can.”
Virginia’s Constitution has prohibited felons from voting since the Civil War; the restrictions were expanded in 1902, as part of a package that included poll taxes and literacy tests. In researching the provisions, advisers to the governor turned up a 1906 report quoting Carter Glass, a Virginia state senator (and later, a member of Congress who was an author of the 1933 Glass-Steagall Act that regulated banks) as saying they would “eliminate the darkey as a political factor in this State in less than five years, so that in no single county of the Commonwealth will there be the least concern felt for the complete supremacy of the white race in the affairs of government.”
Mr. McAuliffe, who took office in 2014 and campaigned to restore voting rights to felons, said that he viewed disenfranchisement as “a remnant of the poll tax” and that he had been “trying to figure out what more I can possibly do.” He has been working with his legal team for months to live up to his campaign promise. His action Friday will not apply to felons released in the future; the governor’s aides say Mr. McAuliffe intends to issue similar orders on a monthly basis to cover more people as they are released. “People have served their time and done their probation,” Mr. McAuliffe said. “I want you back in society. I want you feeling good about yourself. I want you voting, getting a job, paying taxes. I’m not giving people their gun rights back and other things like that. I’m merely allowing you to feel good about yourself again, to feel like you are a member of society.”
The official statement and executive order can be found at this link.
As long-time readers may recall, I have long been an advocate for letting even prisoners vote (as noted here), and thus I have long opposed any and all form of felon disenfranchisement. Throw in the fact that there is evidence to suggest that former offenders who vote are less likely to recidivate, and I am quite pleased about what Gov. McAuliffe had the courage (and political savvy) to do here. Perhaps this action by a sitting Gov not far from the US capital will inspire the President to see what bold useful work can be done through bold use of clemency authority.
Just how should sentencing law deal with a truly habitual petty criminal?
This morning I came across this recent Huffington Post piece lamenting in its headline a seemingly a very severe application of Louisiana's habitual offender law: "Louisiana Man May Face Life For Shoplifting Snickers Bars: Critics say the case shows how habitual-offender laws can bully small-time crooks into pleading guilty rather than risking the consequences of a trial." To its credit, the HuffPo piece use this latest shoplifting case story to talk more generally about how severe mandatory sentencing laws can functionally place tremendous pressure on a defendant to plead guilty to try to avoid an extreme prison term.
But, rather use this story to reiterate my long-standing disaffinity for severe mandatory sentencing provisions (especially because of the often unchecked power it can place in the hands of prosecutors), I did a bit of digging into the story behind the habitual offender now in big trouble for his candy caper, and what I found prompted the question in the title of this post. Consider specifically the factual backstory reported in this local piece headlined "Accused New Orleans candy thief, facing 20 years to life, turns down deal for 4 years":
New Orleans shoplifter Jacobia Grimes, facing a possible sentence of 20 years to life for stuffing $31 worth of candy bars into his pockets at a Dollar General store, has rejected a plea offer from District Attorney Leon Cannizzaro’s office that would have seen him serve a four-year sentence as a double offender, his attorney said Friday.
The offer was the same sentence that Grimes agreed to serve when he pleaded guilty in 2010 to swiping socks and trousers in a similar shoplifting attempt. Grimes, 34, did not appear in court for a hearing Friday. He remains jailed on a violation of his $5,000 bond, having tested positive last week for opiates, cocaine, oxycodone and marijuana.
But Criminal District Court Judge Franz Zibilich again suggested to prosecutors and Grimes’ attorneys that they work out a deal for less jail time, followed by probation and drug treatment. Zibilich noted Grimes’ lengthy criminal record, which includes more than a dozen arrests since 2000. Most of the nearly nine years he has spent in prison since 2001 were the result of shoplifting convictions, records show. “I agree he has to pay the consequences, even though it’s candy. I would like to see some sort of split sentence,” Zibilich said.
However, Assistant District Attorney Iain Dover said state law may not allow it, given Grimes’ status as a potential “quad” offender under the state’s habitual offender law. “I can’t see how we get there under the law,” Dover said.
Cannizzaro’s office charged Grimes in a bill of information Feb. 3 under a state statute for theft of goods by someone with multiple convictions for the same thing. His earlier convictions elevated his alleged candy heist, on Dec. 9 at a Dollar General store on South Claiborne Avenue, to a felony. Whether Grimes would face 20 years to life if he’s convicted of the candy theft would be up to Cannizzaro’s office. State laws give prosecutors discretion following a conviction to raise the ante by filing a “multiple bill.”
His case, given the nature of the crime and the possible penalty, has gained wide attention, prompting Cannizzaro to publicly dismiss the notion that he would seek such a heavy sentence for a shoplifter. Dover argued that Grimes’ criminal record shows that slaps on the wrist don’t seem to work. “It’s not the state’s fault. It’s this guy’s fault. He’s had a chance. He’s had the opportunities,” Dover said.
Zibilich suggested that both sides could agree to go below the mandatory minimum prison sentence in a plea deal that includes treatment, so long as nobody challenged it. “Do we have to be married to every single syllable of this book?” he asked of the state’s penal code.
Grimes’ trial is scheduled for May 26. His attorneys, Miles Swanson and Michael Kennedy, have opted to forgo a jury and let Zibilich decide the case.
This only things that seems really obvious to me in this case is that even some extended stints in state prison are not working to help Jacobia Grimes stop being a petty criminal. Even recognizing that incapacitating this petty criminal via incarceration is likely not especially cost effective for the taxpayers of Louisiana, at this point what other punishment options would you suggest the prosecutor and judge seriously consider under these circumstances?
April 22, 2016 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)
"Why I refuse to send people to jail for failure to pay fines"
The title of this post is the headline of this lengthy recent Washington Post commentary authored by Ed Spillane, the presiding judge of the College Station Municipal Court and president of the Texas Municipal Courts Association. Here are excerpts:
As a municipal judge in College Station, Tex., I see 10 to 12 defendants each day who were arrested on fine-only charges: things like public intoxication, shoplifting, disorderly conduct and traffic offenses. Many of these people, like Melissa, have no money to pay their fines, let alone hire a lawyer.
What to do with these cases? In Tate v. Short, a 1971 Supreme Court decision, the justices held that jail time is not a proper punishment for fine-only criminal cases, citing the equal protection clause of the 14th Amendment. But in many jurisdictions, municipal judges — whether they’re overworked, under pressure to generate revenue through fees, skeptical of defendants’ claims to poverty or simply ignorant of the law — are not following the rules. As a result, far too many indigent defendants are cited for contempt of court and land behind bars for inability to pay.
There’s another way, and I’ve been experimenting with it in my own courtroom.
There are no firm numbers nationally on how many fine-only cases end with the defendants in jail, but figures from particular jurisdictions around the country are grim, if partial. A 2014 survey by NPR, New York University’s Brennan Center for Justice and the National Center for State Courts showed that in Benton County, Wash., a quarter of people in jail for misdemeanors on a typical day were there for nonpayment of fines and court fees. (The study also found that civil and criminal fees and fines had increased in 48 states since 2010.) The percentage of jail bookings in Tulsa involving inmates who had failed to pay court fines and fees more than tripled, from 8 to 29 percent of 1,200 inmates, between 2004 and 2013, according to reporting by the Tulsa World. Eighteen percent of all defendants sent to jail in Rhode Island between 2005 and 2007 were incarcerated because of court debt; in 2005 and 2006, that amounted to 24 people per day....
Fortunately, courts and judges are not powerless to fix the system.
First, defendants must be allowed to argue economic hardship in an indigency hearing, which is Constitutionally required if a defendant says he or she can’t pay. It’s unclear how many judges skip these hearings, and practices vary from one jurisdiction to another, but Lauren-Brooke Eisen, senior counsel at the Brennan Center, says there’s no question that some judges aren’t holding them. “Sometimes it’s not always nefarious,” Eisen says. “They have very full dockets. . . . It can require overtime just to finish their docket for the day. It’s not always a deliberate decision to not hold those hearings.”...
Once a defendant proves indigency, we can also be much more creative in our sentencing than “fine or jail” (or a suspended driver’s license, a popular measure that disproportionately hurts low-income workers who can’t get to their jobs without driving). Community service at a nonprofit or government entity is one of the strongest tools judges have at their disposal; in my experience, it boosts defendants’ self-esteem and provides valuable assistance to organizations that need the help....
Judges can also sentence defendants to anger-management training, classes for first-time offenders or drunk-driving-impact panels. National research shows that alternative sentencing like teen court can reduce recidivism, and my time on the bench confirms this. One defendant in an alcohol-related case, Jeff Schiefelbein, was sent to a Mothers Against Drunk Driving victim-impact panel in 1997. He was so moved by the experience that he decided to create a designated-driver program for anyone who is intoxicated and needs a ride home. Since 1999, his organization, Carpool, has provided on average 650 rides each weekend in College Station.
And occasionally, as a judge, you can choose mercy. Roger S. was facing an $800 fine for speeding, driving without insurance or registration and driving with defective equipment. He also had terminal cancer. He wrote to me, explaining that he could not afford his treatments, much less what he owed the court. I picked up the phone and called him from court. He was a little surprised but pleased to be talking to the judge. After discussing his medical treatment and all of those costs in detail, I waived his fines because of indigency and inability to perform community service, much to his and his family’s relief....
Of course, no matter how many great alternatives judges can provide instead of jail time, if a defendant fails to come to court, he or she won’t be able to hear about them. Courts must be as accessible as possible, and that starts with allowing children to accompany their parents. One of the revelations in the Justice Department’s report on Ferguson was that children weren’t allowed in municipal court, which explains why many defendants were unable to appear. Several courts in Texas limit or don’t allow parents bringing their children, even though kids don’t present a problem in my court — maybe because we provide coloring books and toys for them to play with while their parents take care of their cases....
I used to prosecute felonies as an assistant district attorney in Brazos County. During that time, I worked for a year in the intake division. This drove home a lesson that my boss, the district attorney, had been trying to instill in me: Every case file is an individual whose rights are as important and sacred as mine or those of my family. The decision to charge or dismiss demands empathy and vigilance. Misdemeanor criminal cases provide an opportunity for a much happier outcome than most felonies because there is a genuine chance for a defendant to learn from a mistake and never set foot in a courtroom again — and keeping someone out of jail is a good way to ensure that happens. In these cases, it should be possible for defendants to resolve their cases without losing their liberty.
All judges want to uphold the rule of law in the communities we serve, but too often we can get lost in the day-to-day business of running a court; we ignore the consequences of what we do. An arrest can cost a citizen his or her job, dignity and security. Alternative sentencing is a way to achieve what we should all want: an end to criminal behavior.
April 22, 2016 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)
Thursday, April 21, 2016
The latest news about the faltering state of federal statutory sentencing reform
This extended Politico article reports on the state and possible fate of federal statutory sentencing reform in Congress. The piece is headlined "Time running out for major criminal justice bill; A last-ditch effort is underway to salvage a rare alliance between GOP senators and the White House." Here is how it starts:
Time is running out to reboot efforts to reform the nation’s criminal justice laws, and supporters of reform are making a last-ditch attempt to enlist vulnerable Senate Republicans in an effort that’s probably one of the few chances to enact major bipartisan legislation during the election year.
The chief Republican backers, led by Judiciary Committee Chairman Chuck Grassley of Iowa and Majority Whip John Cornyn of Texas, have quietly courted key GOP senators for weeks to show Majority Leader Mitch McConnell (R-Ky.) they could produce sweeping support for the bill, which would relax some mandatory minimum sentences for nonviolent offenders. They also want to show they can move the bill relatively quickly on the Senate floor.
Though the bill has languished since it passed the Judiciary Committee in October, its authors have made revisions to satisfy criticisms from some tough-on-crime conservatives that the legislation would prematurely release violent criminals. Those changes may be winning over some new Republicans. “We’re taking a real close look at it this week,” said Sen. Ron Johnson (R-Wis.), who is locked in one of the most competitive races this cycle. “I’m very sympathetic with the bill.”
Yet, the bill’s sponsors have hinted at a formal rollout for weeks, with no official announcement. Aides said the delay is to buy more time to build support, and they’re targeting Republicans up for reelection this year or senators who haven’t already leveled pointed criticism at the bill, such as Sen. Tom Cotton (R-Ark.).
But time is running short, and other issues are competing for what’s left of it. The Senate is preparing to restart the moribund appropriations process. And after the Republican National Convention in July, the chamber will be largely out of commission until the lame-duck session in November and December.
Supporters acknowledge they need to prove to McConnell that there are 60 votes for the measure before the majority leader hauls a bill onto the floor that will cleave the Republican Conference. “We have a lot of progress made and people saying that we’ve gone in the right direction. But we’re not getting answers from some people,” Grassley said in a brief interview Wednesday. “Like for instance, one senator says, ‘I’ll let you know Monday.’ He hasn’t let us know.”
Reviewing the SCOTUS week that was and the SCOTUS week to come via SCOTUSblog
In this post last Friday, I (not-so) boldly predicted this current week might be a big one at the Supreme Court for criminal justice developments. As regularly readers now know, the Justices did not disappoint. And next week may be more of the same. Helpfully, the fine SCOTUSblog folks have had all these posts to help us keep track of all the SCOTUS criminal justice action:
- Argument analysis: A quiet bench on uncounseled tribal-court convictions
- Argument preview: Growing pains in the mass incarceration and deportation movements
I do not feel too guilty cribbing all this content from SCOTUSblog because I wrote the second of these listed posts (the one with the awful pun in the title).
"Restoring Human Capabilities After Punishment: Our Political Responsibilities Toward Incarcerated Americans"
The title of this post is the title of this lengthy paper by Kony Kim now available via SSRN. Here is the abstract:
Why should non-incarcerated Americans invest in the wellbeing of incarcerated Americans? To date, our public discourse about penal reform has avoided this question, focusing on pragmatic reasons for facilitating “prisoner reentry” and “reintegration” while shelving unresolved, and deeply contested, philosophical questions about criminal justice and punishment. As a result, we as a society have engaged in much data-driven policy talk about the economic costs and benefits of reducing recidivism, but little normative reflection about the rights and responsibilities held by incarcerated adults who are at once human beings, members of society, persons convicted of crimes, victims of inhumane punishment — and, often, survivors of poverty.
Thus, my first task is to clarify the individual and collective obligations that apply within our context of mass incarceration: the moral responsibilities that are held by and toward incarcerated Americans, non-incarcerated Americans, and our shared public institutions. My second task is to draw out implications for policy and discourse: to explain not only what reform measures we should prioritize, but how we should frame and assess them. In particular, I call for systemic changes that would provide all incarcerated Americans with opportunities to pursue higher education and to develop redemptive self-narratives; and I argue that we should frame and assess such measures not primarily as cost-saving devices, but as ethically significant efforts to secure capabilities that are essential to human flourishing and required by justice.
In setting forth these arguments, my purpose is to spark deeper ethical reflection about correctional reform, and specifically to invite meaningful engagement with one key normative question: What do we, as a civilized society with a history of social and penal injustice, owe incarcerated Americans? Ultimately, I wish to underscore that the people confined in our prisons have legitimate moral claims upon us – insofar as they remain human beings and members of society and, as such, bearers of rights as well as responsibilities. Equally, I wish to establish that, in our collective efforts to repair the harms of mass incarceration, we can and should empower those Americans most directly harmed by our penal system to lead the way in transforming it.
Federal district court declines to consider acquitted conduct at sentencing "based on the implication of Sixth Amendment guarantees"
A helpful reader alerted me to a notable new federal district court opinion handed down yesterday by Judge Mark Mastroianni in US v. Buffis, No. 13-30028-MGM (D. Mass. April 20, 2016) (available for download below). The full opinion runs only eight pages and federal sentencing fans will want to read it in full. These snippets should highlight why:
The government has filed a motion requesting the court sentence the defendant based on the totality of his misconduct. Specifically, the government is requesting the court sentence the defendant based on charged conduct for which he was acquitted by the jury, several incidents of uncharged behavior, and conduct initially charged but dismissed before trial. The superseding indictment against the defendant charged twelve counts; defendant was convicted of the first count, the twelfth was dismissed, and defendant was acquitted of counts two through eleven. The general nature of the Government’s case against the defendant involves his extortion and theft of funds, while in his role as Chief of Police for the Town of Lee....
The government advocates for legally appropriate sentencing considerations to affect the defendant’s sentence on the one convicted charge. The government’s motive, however, is to sentence the defendant based generally on its belief, after a largely unsuccessful prosecution, that the defendant is a “longtime thief and a brazen liar.”...
[B]road recognition of a sentencing court’s authority to consider acquitted conduct comes from the holding in United States v. Watts, 519 U.S. 148, 157 (1997) (per curiam).... The wisdom of interpreting Watts, under Sixth Amendment scrutiny, as even creating an available option for considering acquitted conduct at sentencing has been often questioned....
In Watts, the Court explained that consideration of acquitted conduct is not punishment for that conduct, noting the acquittal did not technically prove innocence, but, rather, is the causal increase of sentence based on the manner of commission of the crime convicted. Watts, 519 U.S. at 154-55. Established law under Watts allows a judge to decline to consider acquitted conduct at sentencing. This court has difficulty reconciling Watts with the burden of proof and presumption of innocence standards, which align an acquittal more naturally with factual innocence than with a guileful avoidance of justice deserving of a penalty. This court, therefore, declines to consider acquitted conduct in this case based on the implication of Sixth Amendment guarantees.
Additionally, under the facts here, I am not satisfied the acquitted conduct has useful relevance to the consideration of the manner in which the defendant committed the crime for which he was convicted. This relevance of the crimes to the manner of commission is the connection emphasized by the court in Watts. 519 U.S. at 154-55. In this case the jury, by special verdict form, indicated the manner it found the defendant to have committed a single act of extortion.
Based on the jury's verdict form, the court knows the manner of commission found by the jury for the only convicted charge. None of the acquitted charges speak to the manner of commission of the extortion. Rather, the acquitted conduct would describe a motive and pattern of scheming and dishonesty to accomplish theft generally. This is unlike relying on acquitted conduct at sentencing to find that a firearm was possessed at the time of a drug crime and connected to its commission. See Watts, 519 U.S. at 154-55; Gobi, 471 F.3d at 313-14. Nor is this a situation like that of a drug case where acquitted conduct could be relevant to the manner of commission by showing the total weight of drugs involved. United States v. Putra, 78 F.3d 1386, 1388-89 (9th Cir. 1996), reversed by 117 S. Ct. 633 (1997).
Economists explain "Why Mass Incarceration Doesn’t Pay"
Jason Furman, chairman of the White House Council of Economic Advisers, and Douglas Holtz-Eakin, a former director of the Congressional Budget Office, have this new New York Times commentary headlined "Why Mass Incarceration Doesn’t Pay." Here are excerpts:
Congress is considering bipartisan legislation to loosen tough sentencing laws. The bill faces resistance from some lawmakers. As economists who differ on many issues, we both agree that costbenefit analysis provides a useful framework for analyzing complicated questions. And in this case, we agree that the verdict of such analysis is clear: Our sentencing rules are failing and need to be changed.
On the benefit side of the equation, prisons and jails play an essential role in managing violent criminals and reducing crime, particularly helping people in poor communities who are the most likely to be victims of murder, robbery or other violent crimes.
But a general rule in economics — the law of diminishing marginal benefits — applies to incarcerating additional people or adding years to sentences. Research finds that more incarceration has, at best, only a small effect on crime because our incarceration rate is already so high. As the prison population gets larger, the additional prisoner is more likely to be a less risky, nonviolent offender, and the value of incarcerating him (or, less likely, her) is low.
The same general principle applies to the length of prison sentences, which in many cases have gotten longer as a result of sentence enhancements, repeatoffender laws, “three strikes” laws and “truth-in-sentencing” laws. Longer sentences do not appear to have a deterrent effect; one study finds, for example, that the threat of longer sentences has little impact on juvenile arrest rates. Other studies have found that sentencing enhancements have only modest effects on crime. They are unlikely to meaningfully affect the overall crime rate or generate meaningful gains in public safety.
Moreover, in many cases the analysis suggests that adding prisoners or years to sentences can be harmful. A growing body of research shows that incarceration and longer sentences could increase recidivism. Individuals may build criminal ties while incarcerated, lose their labor-market skills and confront substantial obstacles to reentry after release. A new study finds that each additional year of incarceration increases the likelihood of reoffending by four to seven percentage points after release.
The bottom line: The putative benefits of more incarceration or longer sentences are actually costs. Those costs are not confined to the prison population. Time in prison not only means a loss of freedom, but it also means a loss of earnings, risks to the health and safety of the incarcerated, and prolonged absences from family that can strain marriages and increase behavioral problems in children. The probability that a family is in poverty increases by nearly 40 percent while a father is incarcerated....
Finally, more than $80 billion is spent annually on corrections, or over $600 per household. The annual cost of imprisoning one person averages approximately $30,000 for adults and $110,000 for juveniles, higher than the cost of a year of college. At the federal level, the Bureau of Prisons budget grew 1,700 percent from 1980 to 2010 and now devours more than 25 percent of the entire Department of Justice budget.
There are other tools that can reduce crime more cost-effectively, including promoting employment and wage growth and investing in education. That is one reason that between 2008 and 2012, a majority of states were able to reduce incarceration and crime. Incarceration plays an important role in promoting public safety, and imposing prison sentences for criminal conduct has moral and practical dimensions. But the criminal justice system should be designed to ensure that the benefits of incarceration exceed the costs. Individuals incarcerated for nonviolent drug crimes — 50 percent of the federal prison population — pose a low risk, and the costs of incarcerating these people outweigh the benefits.
Similarly, since criminal behavior declines and costs increase with age, releasing older individuals who have already served lengthy sentences is also likely to yield net benefits.
Brennan Center provides a (suspect?) "final analysis" of crime in 2015
The folks at the Brennan Center have this new report titled "Crime in 2015: A Final Analysis" authored by Ames Grawert and James Cullen Here is its first page with its summary findings:
This analysis provides final crime data to update the report, Crime in 2015: A Preliminary Analysis. It finds the same conclusions as that report (and its December 2015 update), with slightly different percentages.
The analysis examines crime in the 30 largest cities from 2014 to 2015, with 25 cities reporting data on murder through the end of 2015 and 22 reporting data on crime. Its findings:
• As shown in Table 1A, crime overall in the 30 largest cities in 2015 remained the same as in 2014, decreasing by 0.1 percent across cities. Two-thirds of cities saw drops in crime, which were offset mostly by an increase in Los Angeles (12.7 percent). Nationally, crime remains at all-time lows. The data show no evidence of a deviation from that trend.
• Violent crime rose slightly, by 3.1 percent. This result was primarily caused by increasing violence in Los Angeles (25.2 percent), Baltimore (19.2 percent), and Charlotte (15.9 percent). Notably, aggravated assaults in Los Angeles account for more than half of the rise in violent crime in these cities. There is no evidence of a deviation from the historically low levels of violence the country has been experiencing.
• As shown in Table 1B, the 2015 murder rate rose by 13.3 percent in the 30 largest cities, with 19 cities seeing increases and six decreases. However, in absolute terms, murder rates are so low that a small numerical increase can lead to a large percentage change. Murder rates today are roughly the same as they were in 2012 — in fact, they are slightly lower.
• Final data confirm that three cities (Baltimore, Chicago, and Washington, D.C.) account for more than half (244) of the national increase in murders (Table 1B). While this suggests cause for concern in some cities, murder rates vary widely from year to year, and there is little evidence of a national coming wave in violent crime. These serious increases seem to be localized, rather than part of a national pandemic, suggesting that community conditions remain the major factor. Notably, these three cities all seem to have falling populations, higher poverty rates, and higher unemployment than the national average (Table 2). This suggests that economic deterioration of these cities could be a contributor to murder increases there.
These findings are consistent with the FBI’s Uniform Crime Report data from the first six months of 2015. Notably, the Brennan Center’s analysis focuses on major cities, where increases in crime and murder were highest, so this report likely systematically overestimates any rise in crime nationally.
I have in my title primed the question of whether we should look at this data as suspect largely because Bill Otis and others at Crime & Consequences have done a number of posts questioning how the Brennan Center has been analyzing and characterizing 2015 crime data. Here are some of these C&C posts:
- Studies, Experts, and Other Baloney
- Spinning the Murder Surge
- The Spin Continues: Big City Murders Up "Only" 1/7 in a Single Year
- The Year in Review, Looney Tune Version
Readers know I am a proponent of "evidence-based" sentencing reform, but they should also know that I fully recognize (and am often eager to highlight) how evidence about both crime and punishment will often be used by advocates in very different ways.
"Slimy Sheldon Silver should serve substantial slammer stint, sentencing statement says"
An awesome, amusing, amazing alliteration about prosecutors' potent politico punishment proposal after federal fraud findings made for too good a title for me not to reuse the headline of this New York Daily News piece. Here are the serious senetencing specifics:
Disgraced ex-Assembly Speaker Sheldon Silver should serve more than 14 years behind bars for corruption — a longer term than any other state pol convicted of similar crimes, federal prosecutors argued Wednesday.
Silver, a Democrat convicted last November on seven corruption counts, should serve a sentence that reflects the “unprecedented magnitude, duration, and scope of his abuse of power,” Manhattan federal prosecutors said in the sentencing memo.
“It should reflect the immeasurable damage Silver caused to the democratic process and to the public trust. It should punish Silver for the vast harm he has caused and the position of trust that he exploited, deter other elected officials from the temptation towards corruption, and communicate to the public that the rule of law applies even to the most prominent of public officials.”...
Sentencing guidelines for Silver suggest a range from 262 to 327 months — that’s between 22 and 27 years — in a federal lockup. “The guidelines range is high because the United States Sentencing Commission explicitly has recognized the ‘threat to the integrity of democratic processes’ caused by public corruption offenses,” the feds wrote.
Manhattan U.S. Attorney Preet Bharara’s office also said the hefty suggestion stemmed from “the many egregious aspects of the defendant’s crimes — including Silver’s role as a high-level public official, his engagement in multiple corrupt schemes, the millions of dollars in bribe money Silver took in, and his laundering of his crime proceeds.”
Bharara wants Silver, 72, to forfeit the $5.2 million he pocketed in the scheme and cough up “a substantial fine of at least $1 million is appropriate in this case, particularly in light of the defendant’s significant remaining resources and his more than $70,000-per-year pension, paid for by New York State taxpayers.”
Silver’s lawyers maintain in their sentencing memo that Manhattan Federal Judge Valerie Caproni should consider “a term of rigorous community service — whether as an alternative to incarceration, or as a component of an appropriate below-guidelines sentence” due to his age and poor health. "One letter after another — written with full awareness of the jury's verdict - from Mr. Silver's constituents, neighbors, friends, family, fellow Assembly members, and other government officials attest to his outstanding character and unrivaled contributions," they wrote in the memo, filed Wednesday.
Silver's lawyers went on to quote a key staffer who said that Silver "acted with integrity and exhibited a deep, consistent commitment to issues that he felt best served the public interest." They also quoted former Mayor David Dinkins as saying, "Mr. Silver has shown himself to be a person of integrity, committed to working in partnership on the side of New York City's citizenry."
Wednesday, April 20, 2016
Graphic portrayal of the sentencing price of prosecutorial misconduct in post-Katrina shooting case
As reported in this local article, headlined "Ending decade-long Danziger Bridge case, federal judge accepts guilty pleas from 5 ex-NOPD officers," today a set of significant pleas were entered in a high-profile local police misconduct prosecution that ultimately resulted in high-profile federal prosecutorial misconduct. The reprinted graphic from the piece and these excerpts from the press article highlight why this all became (like so many matters) ultimately a sentencing story:
Five former New Orleans police officers involved in the Danziger Bridge shootings after Hurricane Katrina, or the coverup that followed, pleaded guilty in federal court in New Orleans on Wednesday, taking reduced sentences and avoiding another trial after their previous convictions were thrown out.
The plea deals bring an end to a case that has stretched on for more than a decade and come to symbolize the chaos and government negligence that followed the storm. The former officers received dramatically shorter prison terms than they did after a federal jury convicted them on numerous charges in 2011. The original sentences ranged from six years to 65. Those read out in court on Wednesday ranged from 3 years to 12.
The original convictions were tossed out in 2013 by U.S. District Judge Kurt Engelhardt over the online commenting scandal that by then had engulfed the office of former U.S. Attorney Jim Letten. In his ruling, Engelhardt said the anonymous comments that Letten’s top lieutenants had been making on news websites amounted to “grotesque prosecutorial misconduct,” even though those prosecutors were not on the trial team that convicted the Danziger defendants.
On Wednesday, Engelhardt outlined guilty pleas from the five officers, all but one of whom have remained behind bars while lawyers on both sides of the case prepared for the possibility of another trial. Arthur “Archie” Kaufman has been free on bond; Kenneth Bowen, Robert Gisevius, Robert Faulcon and Anthony Villavaso were brought to court from prison in orange jumpsuits.
Preparations for Wednesday’s hearing took place with an unusual amount of secrecy. It was not until Wednesday morning that documents were unsealed in the court record showing that the re-arraignment and sentencing would take place. In the meantime, extra security and an overflow room had been arranged at the downtown federal court building, where family members of the victims gathered to watch the conclusion of a decade-long ordeal.
The following are the original prison terms handed down to each of the five officers, and the new terms outlined on Wednesday. All of the officers will receive credit for time served.
Kenneth Bowen: originally 40 years, now 10 years.
Robert Gisevius: originally 40 years, now 10 years.
Robert Faulcon: originally 65 years, now 12 years.
Anthony Villavaso: originally 38 years, now 7 years.
Arthur Kaufman: originally 6 years, now 3 years.
The only remaining loose ends in the Danziger case are the charges pending against Former Sgt. Gerard Dugue, who was charged with abetting the coverup and was tried separately from the other officers in 2012. Engelhardt called a mistrial after a prosecutor mentioned an unrelated case that was supposed to be off-limits, and the government has not sought to retry the case since.
Lots of interesting post-Booker guideline talk as federal defendant gets another sentencing win from SCOTUS
The Supreme Court today handed down its opinon this morning in Molina-Martinez v. US, No. 14-8913 (S. Ct. April 20, 2016) (available here), a little case about the application of plain error review of guideline calculation errors. Excitingly, because the majority opinion authored by Justice Kennedy has lots of dicta about post-Booker sentencing, and because a concurrence by Justice Alito complains about some of that dicta, Molina-Martinez is now a must-read for all sentencing practitioners.
I will likely have some further commentary about Molina-Martinez after I get a chance to read it thoroughly. In the meantime, here are a couple of key passages from the majority opinion:
This case involves the Federal Sentencing Guidelines. In sentencing petitioner, the District Court applied a Guidelines range higher than the applicable one. The error went unnoticed by the court and the parties, so no timely objection was entered. The error was first noted when, during briefing to the Court of Appeals for the Fifth Circuit, petitioner himself raised the mistake. The Court of Appeals refused to correct the error because, in its view, petitioner could not establish a reasonable probability that but for the error he would have received a different sentence. Under that court’s decisions, if a defendant’s ultimate sentence falls within what would have been the correct Guidelines range, the defendant, on appeal, must identify “additional evidence” to show that use of the incorrect Guidelines range did in fact affect his sentence. Absent that evidence, in the Court of Appeals’ view, a defendant who is sentenced under an incorrect range but whose sentence is also within what would have been the correct range cannot demonstrate he has been prejudiced by the error....
The Court of Appeals for the Fifth Circuit stands generally apart from other Courts of Appeals with respect to its consideration of unpreserved Guidelines errors. This Court now holds that its approach is incorrect.
Nothing in the text of Rule 52(b), its rationale, or the Court’s precedents supports a requirement that a defendant seeking appellate review of an unpreserved Guidelines error make some further showing of prejudice beyond the fact that the erroneous, and higher, Guidelines range set the wrong framework for the sentencing proceedings. This is so even if the ultimate sentence falls within both the correct and incorrect range. When a defendant is sentenced under an incorrect Guidelines range—whether or not the defendant’s ultimate sentence falls within the correct range—the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error....
In the ordinary case the Guidelines accomplish their purpose. They serve as the starting point for the district court’s decision and anchor the court’s discretion in selecting an appropriate sentence. It follows, then, that in most cases the Guidelines range will affect the sentence. When that is so, a defendant sentenced under an incorrect Guidelines range should be able to rely on that fact to show a reasonable probability that the district court would have imposed a different sentence under the correct range. That probability is all that is needed to establish an effect on substantial rights for purposes of obtaining relief under Rule 52(b).
And here is the start of the concurrence authored by Justice Alito:
I agree with the Court that the Fifth Circuit’s rigid approach to unpreserved Guidelines errors is incorrect. And I agree that petitioner has shown a reasonable probability that the District Court would have imposed a different sentence in his case if his recommended Guidelines sentence had been accurately calculated. Unlike the Court, however, I would not speculate about how often the reasonable probability test will be satisfied in future cases. The Court’s predictions in dicta about how plain-error review will play out are predicated on the view that sentencing judges will continue to rely very heavily on the Guidelines in the future, but that prediction may not turn out to be accurate. We should not make predictions about the future effects of Guidelines errors, particularly since some may misunderstand those predictions as veiled directives.
April 20, 2016 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)
Eleventh Circuit concurrence lists 100+ cases now made viable now that Welch clarified Johnson's retroactivity
A helpful reader altered me to a remarkable concurrence authored by Eleventh Circuit Judge Beverly Martin in In re Robinson, No. 16-11304 (11th Cir. April 19, 2016) (available here). Here is the full text of the concurrence, which serves as an explanatory preamble to a list of 110 Welch impacted cases within the circuit:
I agree that Troy Robinson cannot benefit from Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015), because his sentence is valid even without the residual clause. I write separately to note that Mr. Robinson is one of dozens of prisoners who has tried to file similar applications based on Johnson. Prior to yesterday’s decision in Welch v. United States, No. 15-6418, 2016 WL 1551144 (Apr. 18, 2016), all these applicants were turned away from our Court not because Johnson wouldn’t benefit them but because our Court held that Johnson could never apply in these cases. Some of those who filed applications in other courts have already been freed because they were serving an unconstitutional prison sentence. As best I can tell, all the prisoners we turned away may only have until June 26, 2016, to refile applications based on Johnson. See Dodd v. United States, 545 U.S. 353, 359, 125 S. Ct. 2478, 2482–83 (2005).
Although I have not taken the time to investigate the merits of these cases, below is a list of every case I know of in which this court denied an application from a prisoner seeking to file a second or successive 28 U.S.C. § 2255 petition based on Johnson. I share this list in the hope that these prisoners, who filed their applications without a lawyer’s help, may now know to refile their applications. I have separated out the cases that arise under the residual clause in the Armed Career Criminal Act (ACCA) and the cases that arise under the identical language in United States Sentencing Guidelines § 4B1.2 (which includes cases for which the guidelines were mandatory together with those for which the guidelines were advisory). I have also listed the district court in which each sentence was imposed, to the extent Federal Public Defender offices are monitoring these cases.
Because these cases all involve prisoners seeking collateral review of their prison terms, the Sixth Amendment does not provide them with a constitutional right to the assistance of counsel. I believe district judges may have discretion to appoint lawyers for these prisoners under the Criminal Justice Act, and federal defenders and private lawyers can take up their cases upon their own initiative. I hope many will. Indeed, I cannot help but wonder if some lawyers still working through thousands of federal clemency petitions (all of which wouls seem to have limited chance of success) might reallocate some of their energies to helping Johnson/Welch claimants on this list and elsewhere throughout the country.
"Everybody Talks About Prosecutorial Conduct But Nobody Does Anything About It: A 25-Year Survey of Prosecutorial Misconduct and a Viable Solution"
The title of this post is the title of this notable new article by Harry Caldwell that I just saw via SSRN. Here is the abstract:
Prosecutors, whom we trust to carry out the demanding and essential business of presenting the People’s case against alleged law-breakers, are free to commit misconduct with impunity. They suffer no disciplinary repercussions for their misdeeds. The only adverse consequence facing an erring prosecutor is the extremely rare prospect of having a conviction overturned due to his misconduct. Even then the prosecutor will not be subject to any sanction: no citation for contempt, no suspension of license, no civil liability, no fine, not so much as a censure.
In an earlier article entitled The Prosecutor Prince, I proposed the creation of an independent commission empowered to investigate claims of alleged prosecutorial misconduct, and meter our discipline should the claims be warranted. As set forth in that article, the commission would be modeled after California’s Judicial Panel, which has proven effective in dealing with instances of judicial misconduct.
The purpose of this current article is not to once again make the case that prosecutorial misconduct is prevalent and represents a stain on the American justice system — that purpose has been thoroughly accomplished in the earlier article and by countless others. The two-fold purpose of this article is to revise the earlier proposal to make it more fiscally and politically viable, and to use the findings from our recently completed twenty-five-year survey of prosecutorial misconduct as support for the revised proposal.
Your tax dollars at work?: cost accounting for Aurora theater shooter James Holmes' failed capital trial
As a matter of abstract philosophy, I have struggled for decades concerning my opinion on capital punishment. But as a matter of modern public policy, I have generally concluded that the death penalty is not a great use of limited resources for most states. This new Denver Post article, headlined "Aurora theater shooting trial cost taxpayers at least $3 million: Final cost of James Holmes' trial in the Aurora theater shooting likely won't ever be known," reinforces my perspectives in this regard. Here are the details:
Jailing, evaluating and prosecuting the man who committed the Aurora movie theater shooting cost taxpayers at least $3 million, but the final expense of one of the mostly closely watched court cases in Colorado history may never be known. The $3 million tab was compiled by The Denver Post following multiple open-records requests over the past year. It covers the amount spent from 2012 through 2015 specifically on preparing for and seeing through the trial of James Holmes.
Nearly $1.6 million of the cost was covered by federal grants. When including the salaries of judges, prosecutors, sheriff's deputies and other government employees who spent most or all of their time on the case — but who would have been paid regardless — the total cost rises to more than $7 million.
And there's still a big chunk of expense missing from that amount. The state's taxpayer-funded public defenders — who represented Holmes — are not required to disclose what they spend on a case. Doing so, they say, would violate ethics rules and subject poor defendants to lower standards of attorney-client confidentiality. Generally, the office of the state public defender reports having spent nearly $2 million on death-penalty and potential death-penalty cases since July 2002, not including staff salaries.
The theater shooting trial was one of the longest in state history. Prosecutors sought the death penalty, and Holmes, who pleaded not guilty by reason of insanity, underwent two psychiatric evaluations by state-appointed experts — at a cost of more than $600,000 to the state Department of Human Services. Holmes ultimately was found guilty of murdering 12 people and trying to murder 70 more in the July 2012 attack on the Century Aurora 16 movie theater; he was sentenced to life in prison without parole in August.
While the case prompted public debates about the cost of the death penalty and mental health evaluations, the biggest expense that has been reported was for providing victims' assistance services. The Arapahoe County district attorney's office spent nearly $1.2 million on salaries for victims' advocates, travel expenses for victims to attend the trial and other costs. All of those costs were covered by a federal grant.
Arapahoe County District Attorney George Brauchler, whose office published its close-to-final cost figures last week, said the costs were about in line with what he expected. In addition to the federal grant, the state government appropriated about $500,000 to cover trial-related costs for the district attorney's office. He said more than half of what his office spent on the case was spent before the trial even began one year ago this month, and he rejected the criticism that seeking the death penalty ballooned the trial's price tag. Instead, Brauchler said the case was expensive because of the number of victims involved.
The county DA here make a reasonable point that the nature of the crime may be the reason for the considerable expense as much as the nature of the punishment sought. Nevertheless, I believe this case could and would have cost taxpayers a whole lot less if prosecutors had accepted the defense's early offer to plead guilty in exchange for an LWOP sentence. (That LWOP sentences was ultimately achieved in the end after a lengthy and costly capital trial.) Moreover, the costs here include the opportunity costs of having so many Colorado state justice officials (police, prosecutors, judges) working on this case so intensely when there surely were many other Colorado crime and criminals that might have otherwise gotten their attention.
Of course, and I think not to be overlooked in any accounting of general capital costs/benefits, Holmes' defense team likely was only willing to offer to plead guilty and take LWOP because Colorado has capital punishment on its books. Consequently, it would be unfair to suggest abolition of the death penalty will always produce massive savings in major murder cases. But, as regular readers should know, this kind of accounting leads me to suggest, yet again, that states ought to have ways to "delegate" major murders to the feds for more efficient and effective capital prosecutions.
A few (of many) older related posts (with lots of comments):
- Largest mass shooting in US history surely to become a capital case
- Offense/offender distinctions in first-cut punishment reactions to Batman mass murder
- "For James Holmes, Death Penalty is Far from a Certainty"
- You be the prosecutor: will you accept Aurora theater shooter's plea offer and drop pursuit of the death penalty?
- Should we be concerned about the economic or human costs of Colorado's efforts to get Aurora killer James Holmes on death row?
Tuesday, April 19, 2016
Taking full stock of the Prez Clinton's punishment legacy by looking at PLRA (and AEDPA and ....)
Though I have enjoyed seeing the 1994 Clinton Crime bill getting lots and lots of attention recently (example here and here), there is so much more to legacy of the "Clinton years" to the full story of US punishment practices. This new New Republic commentary, headlined "Another Clinton-Era Law that Needs to Be Repealed: The Prison Litigation Reform Act is still trampling on prisoners' legal rights," tells another piece of the story, and here are excerpts:
Signed into law by President Bill Clinton in 1996 as a rider to the annual congressional appropriations bill, the PLRA laid waste to the ability of incarcerated people to bring prison officials to court for violations of their constitutional rights, whether it be racial discrimination, lack of medical care, or brutality by prison guards. The act was championed as a solution to the thousands of supposed “frivolous lawsuits” by prisoners, with barely any discussion by Congress about its far-reaching effects.
Locked away, those in prison are easily demonized, unable to refute any exaggerations or myths created by those on the outside. One story publicly hyped by members of Congress leading up to the act’s passage had a prisoner filing suit after receiving crunchy peanut butter instead of creamy. But when a federal judge researched the case later, he found that the issue wasn’t about that prisoner’s taste in condiments, but that the prisoner had never been reimbursed after returning the item. The price of a jar of peanut butter might seem trivial to those of us on the outside, but most people in prison are poor and are often deeply in debt. Plus, many prisons overcharge for simple items (the jar of peanut butter cost $2.50, significantly more than the average cost at the time). Looking back, the PLRA did not solve a problem of “frivolous” litigation, rather it masked and discredited the legitimate claims of people with nowhere else to turn.
Since the PLRA became law, tremendous burdens have been placed on prisoners wishing to file suit for violations of their constitutional rights. For example, one of the law’s provisions forces you to go through the prison’s administrative complaint procedures before bringing an actual lawsuit. This can take months. Imagine a prisoner who is in pain and in need of medical treatment, but ignored by prison staff: She must not only file her complaint with the same staff that is denying her treatment, but wait for a refusal, appeal that decision, and only after a judgment on that appeal can she then file a legal case beyond prison walls. By that time, it may be too late for a court to do anything.
As the title of this post is meant to suggestion, lots of other Clinton-era federal criminal laws and developments, particularly the Anti-terrorism and Effective Death Penalty Act (AEDPA) and Prez Clinton's decision to sign-on to Congress's rejection of the US Sentencing Commission's crack/powder amendment to equalize the guidelines, ought to be a continuing topic of conversation as we consider putting another Clinton in the White House this year.
Prior related posts:
- The many challenges of a fully nuanced understanding of the Clintons, crime, punishment and the 1994 Crime Bill
- Continued compelling commentary on the Clintons, crime, punishment and the 1994 Crime Bill
"The Meaning of Life in Criminal Law"
Like many sentient beings, I have long wondered about the meaning of life. Helpfully, this new article by Eldar Haber posted to SSRN, which has the same title as the title of this post, talks throught life's meaning in the context of criminal law. Here is the abstract:
Inflation and deflation change the value of money. Policymakers have used this rationale to amend legislation fixed to a monetary value. What is not acknowledged is that increase in life expectancy could also be a form of inflation, and, accordingly, could affect “the value” of nonmonetary sanctions — chiefly, imprisonment and capital punishment. Under a utilitarian approach to criminal law, with an increase in life expectancy, nonmonetary sanctions with confined-terms reduce their deterrent value, while nonmonetary sanctions with finite-terms, inter alia, life-imprisonment without parole and capital punishment, increase their deterrent value and severity. Under a retributive approach to criminal law, changes in life expectancy also affect the magnitude of nonmonetary criminal sanctions and change the proportionality between the criminal conduct and the punishment. Nevertheless, although life expectancy in the United States has increased substantially, legislators have not adjusted nonmonetary criminal sanctions accordingly. At the least, scholars and policymakers failed to recognize the role of life expectancy in the formation of criminal sanctions. Hence, current criminal punishments have not been recalibrated properly.
This Article revisits theories of criminal punishments while offering a new perspective on determining nonmonetary criminal sanctions that recognizes life expectancy considerations. It examines the current and desirable approach toward life expectancy considerations in criminal punishment theories while reviewing statistical data on the increase of life expectancy in the United States since independence. After discussing criminal punishment theories, and evaluating the role of life expectancy considerations under them, I conclude that criminal law theories, to a great extent, support life expectancy considerations. Under both utilitarian and retributive approaches, lack of practical considerations of life expectancy in criminal punishments could lead to a misconception of criminal law theories and erode the important role played by criminal sanctions. Accordingly, this Article examines consequences of failing to apply life expectancy considerations in practice and proposes modest solutions to overcome this perceived problem.
Monday, April 18, 2016
Two thoughtful reactions to the quick SCOTUS retroactivity work in Welch
As first noted here, this morning the US Supreme Court ruled in Welch v. United States that its recent significant ruling in Johnson that the "residual clause" of the federal Armed Career Criminal Act was unconstitutionally vague is to be applied retroactively. I provided my first reaction to the consequential Welch decision in this post, and now I can link to two other thoughtful takes on Welch:
From Steve Sady at the Ninth Circuit Blog here, "Welch: Building Blocks For Retroactively Challenging Unconstitutional Career Offender Designations"
From Steve Vladeck at PrawfBlawg here, "The Subtle But Serious Flaw in the Supreme Court's Welch Ruling"
Colorado Department of Public Safety releases "Marijuana Legalization in Colorado: Early Findings"
This new Denver Post piece, headlined "Fewer Coloradans seek treatment for pot use, but heavier use seen," reports on this notable new official state government report from Colorado (which I believe was just released today, but bears a cover date of March 2016). Here is a basic summary via the Denver Post piece:
Colorado's treatment centers have seen a trend toward heavier marijuana use among patients in the years after the state legalized the drug, according to a new report from the Colorado Department of Public Safety. The 143-page report released Monday is the state's first comprehensive attempt at measuring and tracking the consequences of legalization.
In 2014, more than a third of patients in treatment reported near-daily use of marijuana, according to the report. In 2007, less than a quarter of patients reported such frequency of use. Overall, though, the number of people seeking treatment for marijuana has dropped since Colorado voters made it legal to use and possess small amounts of marijuana. The decrease is likely due to fewer people being court ordered to undergo treatment as part of a conviction for a marijuana-related crime.
The finding is among a growing body of evidence that marijuana legalization has led to a shift in use patterns for at least some marijuana consumers. And that is just one insight from the new report, which looks at everything from tax revenue to impacts on public health to effects on youth. Among its findings is a steady increase in marijuana use in Colorado since 2006, well before the late-2000s boom in medical marijuana dispensaries. The report documents a sharp rise in emergency room visits related to marijuana. It notes a dramatic decline in arrests or citations for marijuana-related crimes, though there remains a racial disparity in arrest rates.
But the report, which was written by statistical analyst Jack Reed, also isn't meant as a final statement on legalization's impact. Because Colorado's data-tracking efforts have been so haphazard in the past, the report is more of a starting point. "[I]t is too early to draw any conclusions about the potential effects of marijuana legalization or commercialization on public safety, public health, or youth outcomes," Reed writes, "and this may always be difficult due to the lack of historical data."
It's not just the lack of data from past years that complicates the report. Reed also notes that legalization may have changed people's willingness to admit to marijuana use — leading to what appear to be jumps in use or hospital visits that are really just increases in truth-telling. State and local agencies are also still struggling to standardize their marijuana data-collection systems. For instance, Reed's original report noted an explosive increase in marijuana arrests and citations in Denver, up 404 percent from 2012 to 2014. That increase, however, was due to inconsistent data reporting by Denver in the official numbers given to the state.
Intriguingly, though this lengthy report comes from the Colorado Department of Public Safety, not very much of the report discusses general crimes rates at much length. But what is reported in this report is generally encouraging:
Colorado’s property crime rate decreased 3%, from 2,580 (per 100,000 population) in 2009 to 2,503 in 2014.
Colorado’s violent crime rate decreased 6%, from 327 (per 100,000 population) in 2009 to 306 in 2014.
Cross-posted at Marijuana, Law, Policy & Reform
Seeing Montgomery and Welch as SCOTUS Teague make-up calls
A few years ago I wrote this extended article, titled "Re-Balancing Fitness, Fairness, and Finality for Sentences," which made the case for modern doctrines to be far less concerned about sentence finality, and far more concerned about punishment fitness and fairness, when new legal developments raise doubts or concerns about lengthy prison sentences. Though I did not in that article call for the Supreme Court's Teague doctrines to be ignored, passages from it suggesting Teague's limit on retroactivity ought to be narrowly construed appeared in amicus briefs I signed in Montgomery and Welch.
I have been pleased that Montgomery and now Welch both resulted in a significant block of Justices declaring prior Eighth And Fifth Amendment rulings fully retroactive. But how the Court majority has gotten there has been more than a bit puzzling because, as I see, the Court keeps massaging Teague while it suggests that it is faithfully applying the doctrine. In Montgomery, as I explain in this new commentary, six Justices signed on to an opinion (including Chief Justice Roberts) that seems, at least indirectly, to rewrite significantly the very foundational legal basis for Teague. And, in the final line of his solo dissent in Welch today, Justice Thomas complains that the majoity opinion in Welch (which has the votes of both Chief Justice Roberts and Justice Alito) shows that "the Court keeps moving the [retroactivity] goalposts" through its "unprincipled expansion of Teague [so that] every end is instead a new beginning."
I bring all this up because, upon reading Welch, this one passage from the majority opinion stood out for a couple of reasons:
[W]here the conviction or sentence in fact is not authorized by substantive law, then finality interests are at their weakest. As Justice Harlan wrote, “[t]here is little societal interest in permitting the criminal process to rest at a point where it ought properly never to repose.” Mackey, 401 U. S., at 693 (opinion of Harlan, J.).
First and foremost, I am pleased and I think it potentially quite important (and in harmony with my own writings) to see the Supreme Court state expressly that "finality interests are at their weakest" when substantive law has changed and a defendant is still dealing with the consequences of the conviction or sentence based on the now-changed substantive law.
Second, as explained in the title of this post, the quote from Justice Harlan seems especially notable here in describing the limited societal interest in "permitting the criminal process to rest at a point where it ought properly never to repose." I suspect that Chief Justice Roberts was somewhat more comfortable with the Teague rewriting in Montgomery and that both the Chief and Justice Alito were content with the Court's work in Welch because they may have come to the conclusion the Court ultimately took unfairly long before finally finding constitutional problems with mandatory juve LWOP and the residual clause of ACCA. In both settings, lots and lots of defendants subject to really long prison terms have been persistently complaining for decades that these extreme sentencing laws were constitutionally problematic. I would guess that, as judicial umpires calling balls and strikes, the Chief and Justice Alito could live with a "Teague" make-up call to help the defendants who before kept getting strikes called against them.
Supreme Court swiftly rules in Welch declaring Johnson ACCA vagueness decision retroactive
As reported here, just a few weeks ago the Supreme Court heard oral argument in Welch v. United States to address the retroactive application of last Term's significant ruling in Johnson (authored by Justice Scalia) that the "residual clause" of the federal Armed Career Criminal Act was unconstitutionally vague. Justice Kennedy authored this opinion for the Court in its 7-1 ruling, and here is the heart of the opinion's analytical conclusion:
Under this [Teague] framework, the rule announced in Johnson is substantive. By striking down the residual clause as void for vagueness, Johnson changed the substantive reach of the Armed Career Criminal Act, altering “the range of conduct or the class of persons that the [Act] punishes.” Schriro, supra, at 353. Before Johnson, the Act applied to any person who possessed a firearm after three violent felony convictions, even if one or more of those convictions fell under only the residual clause. An offender in that situation faced 15 years to life in prison. After Johnson, the same person engaging in the same conduct is no longer subject to the Act and faces at most 10 years in prison. The residual clause is invalid under Johnson, so it can no longer mandate or authorize any sentence. Johnson establishes, in other words, that “even the use of impeccable factfinding procedures could not legitimate” a sentence based on that clause. United States v. United States Coin & Currency, 401 U. S. 715, 724 (1971). It follows that Johnson is a substantive decision.
In the wake of the oral argument, I find this substantive ruling not at all surprising. What is a bit surprising, though, is that Justice Thomas not Justice Alito is the sole dissenter. Here is how his dissent gets started:
Last Term the Court held in Johnson v. United States, 576 U. S. ___ (2015), that because the residual clause of the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. §924(e)(2)(B)(ii), “combin[es] indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony,” it is unconstitutionally vague. 576 U. S., at ___ (slip op., at 6). Federal prisoners then sought to invoke Johnson as a basis for vacating their sentences in federal collateral review proceedings. See 28 U. S. C. §2255(a).
Today the Court holds that Johnson applies retroactively to already final sentences of federal prisoners. That holding comes at a steep price. The majority ignores an insuperable procedural obstacle: when, as here, a court fails to rule on a claim not presented in a prisoner’s §2255 motion, there is no error for us to reverse. The majority also misconstrues the retroactivity framework developed in Teague v. Lane, 489 U. S. 288 (1989), and its progeny, thereby undermining any principled limitation on the finality of federal convictions. I respectfully dissent.
Sunday, April 17, 2016
"Montgomery's Messy Trifecta"
A few weeks ago, I finally found a bit of extra time to dig into the doctrinal particulars of the Supreme Court's important ruling in Montgomery v. Louisiana, which finally clarified that its 2012 ruling in Miller v. Alabama was to be applied retroactively. Because I was pleased with the substantive outcome in Montgomery, at the time of the decision I did not give too much attention or thought to just how the Justices got to that outcome. But once I found time to focus on the doctrine developed in Montgomery, I decided I was not too impressed. Indeed, troubled by the Montgomery doctrinal particulars, I got motivated to write this little commentary which carries the same title as the title of this post. And, via SSRN, here is the abstract for my short commentary about Montgomery:
Montgomery v. Louisiana arrived at the Supreme Court at the intersection of three conceptually challenging and jurisprudentially opaque areas of law. First, Montgomery came to the Court as an Eighth Amendment case requiring the Justices to struggle yet again with the counter-majoritarian question of what limits the Cruel and Unusual Punishments Clause puts on government powers to impose certain sentences on certain defendants for certain crimes. Second, Montgomery came to the Court as a retroactivity case requiring the Justices to struggle with the practical question of how new constitutional rules are to apply to old and seemingly settled criminal judgments. Third, Montgomery became a federalism case because the Justices, when granting certiorari review, added the jurisdictional question of whether the Court even had authority to review how Louisiana had implemented the Supreme Court’s prior decisions on Eighth Amendment and retroactivity issues.
In this short essay, I briefly discuss the doctrinal puzzles of Montgomery in each of these three areas of law --- Eighth Amendment limits on sentences, retroactivity of new constitutional rules, and federal review of state criminal adjudications. Specifically, I explain how the Montgomery opinion achieved a messy trifecta: through one relatively short opinion, the Supreme Court managed to make each of these areas of law significantly more conceptually challenging and jurisprudentially opaque than they already were.
Would Congress be wise to pursue sentencing reform through DOJ spending limitations?
The question in the title of this post is prompted by this recent Reason piece by Jacob Sullum headlined "DOJ Accepts Decision Saying It May Not Target State-Legal Medical Marijuana Suppliers: The feds had argued that a spending rider left them free to shut down dispensaries." Here are the details:
The Justice Department has abandoned its appeal of a ruling that said federal prosecutors are breaking the law when they target medical marijuana providers who comply with state law. U.S. District Judge Charles Breyer issued that ruling last October, when he said enforcing an injunction against a state-legal dispensary would violate a spending rider that prohibits the DOJ from interfering with state laws allowing medical use of marijuana. The Justice Department initially asked the U.S. Court of Appeals for the 9th Circuit to overturn Breyer's decision but later changed its mind, and on Tuesday the court granted its request to withdraw the appeal.
That decision leaves in place Breyer's ruling, which involved the Marin Alliance for Medical Marijuana (MAMM), without establishing a circuit-wide precedent. Presumably the DOJ worried that the 9th Circuit would agree with Breyer's reading of the Rohrabacher-Farr amendment, which says the department may not use appropriated funds to "prevent" states from "implementing" their medical marijuana laws. The DOJ argues that prosecuting medical marijuana suppliers, seizing their property, and shutting them down does not prevent implementation of laws authorizing them. Breyer said that interpretation "defies language and logic."
The rider that Breyer considered expired last year, but the same language was included in the omnibus spending bill for the current fiscal year. If Congress continues to renew the amendment and other courts agree with Breyer's understanding of it, medical marijuana growers and suppliers who comply with state law will have less reason to worry about raids, arrests, and forfeiture actions, although uncertainty will remain in states where the rules for dispensaries are unclear. For the time being, that remains true in California, although state regulations aimed at clarifying the situation are scheduled to take effect in 2018.
In other words, now that DOJ has (sort-of) accepted a broad reading of the Rohrabacher-Farr amendment, this DOJ spending limitation has (sort-of) achieved indirectly what Congress has been unwilling or unable to do directly, namely authorize states and individuals to move forward with a responsible medical marijuana program without persistent concerns that DOJ may raid and prosecute participants. Of course, this spending limitation can and will expire if not consistently renewed by Congress. But still, as this Sullum piece highlights, even a short-term spending limit can end up having some real bite.
In light of this intriguing "spending limit" back-door form of congressional marijuana reform, I am now wondering if this approach should be pursued sentencing reformers/advocates growing frustrated Congress has not yet been able to pass a significant statutory sentencing reform bill. Though some clever drafting might be needed, I could imagine a provision in a federal budget bill that prohibited the Department of Justice from, say, expending any funds to prosecute a non-violent drug offender using statutes that carry any mandatory minimum sentencing term or expending any funds to continue to imprison anyone whose prison sentence would have been completed had the Fair Sentencing Act been made retroactive.
My suggestion here might ultimately be more of a Swiftian "modest proposal" than a real suggestion for how real work can get done on sentencing reform in Congress. Nevertheless, as the prospect of major federal statutory sentencing reform semes to grow ever darker with each passing week, I am ever eager to consider and suggest whatever it might take to turn the enduring bipartisan sentencing reform talk into some consequential legislative action.
An interesting perspective on Virginia's recent capital experiences
Virginia made capital headlines last week after Gov. Terry McAuliffe altered a bill passed by the state's legislature calling for use of the electric chair if the state could not obtain need lethal drugs. The headline of this Washington Post piece from last week explains his proposed alternative approach: "In a move that could jeopardize executions, McAuliffe wants to shield the identity of makers of lethal-injection drugs."
Meanwhile, this new commentary by Kerry Dougherty, a columnist for The Virginian-Pilot, provides some perspective on this execution method brouhaha and Virginia's recent experience with the death penalty. The piece is headlined "Lost in all the death-penalty drug talk is that there are only 7 men on death row in Virginia," and here are excerpts:
Last winter, state legislators came up with a solution: They said that if drugs are unavailable, the commonwealth should fire up Old Sparky. Predictably, this sparked a heated debate among politicians. Some argued that the electric chair is cruel.
Others shrugged, saying painless deaths are not the goal of the state. “I hear, ‘Oh my Lord, he might have to suffer,’ ” said the Senate’s Democratic leader, Richard Saslaw in March. “… If we don’t have the necessary drugs, then we need this bill. When you commit acts like that, you give up your right, as far as I’m concerned, to say, ‘Well, I want to die humanely.’ ”
The governor seems to disagree. “We take human beings, we strap them into a chair, and then we flood their bodies with 1,800 volts of electricity, subjecting them to unspeakable pain until they die,” McAuliffe said last week, according to news reports. “Virginia citizens do not want their commonwealth to revert back to a past when excessively inhumane punishments were committed in their name.”
McAuliffe’s language calls for the state to buy the drugs needed to put prisoners to sleep from special pharmacies. The names of those companies would be cloaked in secrecy, as they are in some other states. “All I’m doing today is providing a humane way to carry out capital punishment here in Virginia so we have options,” McAuliffe said. “If they do not take it up, I want to be clear, they will be ending capital punishment here in Virginia.”
Now the question becomes, should the people’s business be conducted covertly? I can answer that: No, it shouldn’t.
Lost in all this talk about how to kill the last men on Virginia’s death row is the happy fact that there are just seven men living there. Seven. According to an NBC news report, Virginia’s death row was at its most crowded in 1995 when it housed 57 condemned prisoners. Both executions and death sentences have dropped sharply since then.
The ultimate penalty is imposed on those who commit the most heinous crimes. Last year, for instance, Virginia executed one man: The loathsome Alfredo Prieto. He killed a young couple in Fairfax in 1988, raping one of the victims as she died. The Washington Post reported that he had killed as many as seven others. One of those murders was of a 15-year-old in California while he was on the run after the double homicide in Fairfax.
I couldn’t gin up any sympathy for this predator. Neither could the governor, who refused to block his execution in October. Yet Prieto was the first man executed in the Old Dominion in more than two years.
Why all the empty cells on death row? Many reasons. But one component is certainly 1995’s “truth-in-sentencing” law pushed by then-Gov. George Allen. The measure abolished parole and closed the revolving doors on Virginia’s prisons. Suddenly a 10-year sentence meant the convict would spend most of a decade in prison. And a life sentence? It actually meant life in prison.
Given this ironclad alternative to execution, it’s become rare for a Virginia jury — or judge — to send a convict to death row. Before we get back to arguing about the death penalty, can’t we all agree that’s a good thing?