Friday, October 14, 2016

Remembering notable pre-modern moment of great concern over California capital case

Caryl_Chessman_Time_magazineThis local article from California discussing a new play, headlined "'Chessman' explores crucial moment for Brown family, California death penalty," spotlights a California capital case more than a half-century ago that generated widespread attention. Here are excerpts from the article:

Buck Busfield is pondering the finer points of one of the most important phone calls in California political history. It was Feb. 18, 1960, the eve of the long-delayed execution of Caryl Chessman. A 21-year-old Jerry Brown, recently departed from the seminary and now a student at UC Berkeley, called his father, then-Gov. Pat Brown, asking him to grant a reprieve for the condemned inmate.

Across the world, millions awaited the fate of a man they had taken up as the poster boy for ending the death penalty. The freighted decision tore at Pat Brown, whose Catholic faith taught him that execution was immoral.

At the moment, however, Busfield is more concerned about the type of telephone Jerry would have used. During a recent rehearsal for “Chessman,” a new play about the case debuting this week at the B Street Theatre, director Busfield asked his stage manager whether they could hang a phone on the wall for the pivotal scene....

“Chessman” [is] a side project of political consultant Joe Rodota. The production attempts to capture the international, O.J. Simpson-like frenzy and divisiveness that surrounded Chessman for more than a decade, while also asking the audience to look beyond its cast of iconic California figures to a family split by a deeply personal, ethical dilemma.

It also strives to keep a neutral distance and a historical sheen on one of California’s most inflammatory political issues, just as voters are weighing two November ballot measures on capital punishment: one to abolish it and one to expedite the process. “This is not a documentary for or against the death penalty,” Rodota said....

Caryl Chessman was 27 and already a convicted felon when he was found guilty in 1948 of a series of robberies and rapes around Los Angeles. The “Red Light Bandit,” as the perpetrator was dubbed, had visited lovers’ lanes pretending to be a policeman and mugged couples in their cars.

On several occasions, Chessman took the young women back to his vehicle and sexually assaulted them. Under California’s since-discarded “Little Lindbergh Law,” named for the kidnapping and murder of aviator Charles Lindbergh’s infant son, Chessman was sentenced to death for kidnapping with bodily harm, though he had killed no one.

Chessman maintained his innocence and continued to fight his conviction. By 1954, he had been on death row for six years, longer than anyone in California history until that point. The unusual delay for his execution was gaining notice, and it would soon explode into sensation with the publication that year of his first memoir, written secretly and smuggled out of prison.

Translated into more than a dozen languages and adapted into a movie, “Cell 2455, Death Row: A Condemned Man’s Own Story” captured the public’s imagination with its searing and brutal dispatch from inside San Quentin State Prison....

The controversy also came at a relative highwater mark for opposition to the death penalty, when Americans were about evenly split on the issue. This allowed Pat Brown to openly grapple over Chessman’s fate without committing “automatic political suicide,” the biographer Rarick noted at a recent panel on the case.

Because Chessman had prior felonies, Pat Brown could not commute his sentence without the approval of the California Supreme Court, which voted 4-3 to uphold the conviction. Chessman was going to die.

But the night before the execution was scheduled to proceed, Jerry Brown called his father urging him to grant a 60-day reprieve and pursue a moratorium on the death penalty in the Legislature. As Pat recounted in “Public Justice, Private Mercy,” he believed there was not “one chance in a thousand” that lawmakers would act. “Then Jerry said, “But Dad, if you were a doctor and there was one chance in a thousand of saving a patient’s life, wouldn’t you take it?’

“I thought about that for a moment. You’re right, I finally said. I’ll do it.” For his decision, Pat Brown received a slew of negative responses – and a 16-page letter from a “surprised and grateful” Chessman.

With his usual aplomb about the social significance of his case – “the burning hope that my execution would lead to an objective reappraisal of the social validity or invalidity of capital punishment” – Chessman suggested that Brown put forth a proposal excluding him from the mercy granted to others, if it would persuade the Legislature to end the death penalty. “I do not overstate when I say I gladly would die ten thousand gas chamber deaths if that would bring these truths into hearts and minds of those who make our laws,” he wrote.

Lawmakers, however, had little interest in taking such a decisive step, particularly in an election year. Brown’s bill to abolish the death penalty was quickly swatted down in the Senate Judiciary Committee after a lengthy and highly publicized committee hearing.

Chessman was eventually gassed to death on May 2, 1960, his ninth scheduled execution date. The story appeared on the front page of newspapers from Italy to Brazil. Pat Brown ultimately believed he suffered greatly for his choice, blaming it in part for his loss to Ronald Reagan while running for a third term in 1966.

October 14, 2016 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (3)

Thursday, October 13, 2016

New empirical study suggests "recreational cannabis caused a significant reduction of rapes and thefts"

As regular readers surely surmise, I tend to support modern efforts to repeal in part or in whole blanket marijuana prohibitions largely because I am hopeful that modern marijuana reforms will produce more net societal benefits than harms.  Consequently, I often am (too?) quick to take note of reports and studies extolling the benefits of marijuana reforms; but, I also try to make sure I am equally quick to take note of what might be formal or informal biases in any reports and studies extolling the benefits of marijuana reforms.

Against that backdrop, I would be grateful to hear from readers with some empirical chops to help me better assess whether I should be forcefully extolling (or forcefully questioning) this notable new empirical study authored by a group of economists (and available via SSRN) titled "Recreational Cannabis Reduces Rapes and Thefts: Evidence from a Quasi-Experiment." Here is the abstract that, based on the line I have highlighted, seems almost too good to be true for supporters of significant marijuana reform:

An argument against the legalization of the cannabis market is that such a policy would increase crime.  Exploiting the recent staggered legalization enacted by the states of Washington (end of 2012) and Oregon (end of 2014) we show, combining difference-in-differences and spatial regression discontinuity designs, that recreational cannabis caused a significant reduction of rapes and thefts on the Washington side of the border in 2013-2014 relative to the Oregon side and relative to the pre-legalization years 2010-2012.

A few recent and past posts from Marijuana Law, Policy and Reform exploring links between marijuana reform and non-drug crime:

October 13, 2016 in Marijuana Legalization in the States, National and State Crime Data, Pot Prohibition Issues | Permalink | Comments (1)

Fair Punishment Project releases second part of report on small number of US counties still actively utilizing the death penalty

In this post earlier this year, I noted the significant new initiative emerging from Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP).   And in this post a couple of months ago, I highlighted the new big project and first part of a report from the the FPP providing an in-depth look at how the death penalty is operating in the handful of counties still actively using it.  The second part of this report has now been released under the title "Too Broken to Fix, Part II: An In-depth Look at America’s Outlier Death Penalty Counties," and it is available at this link. Here is its introduction:  

As we noted in Part I of this report, the death penalty in America is dying.

In 2015, juries only returned 49 death sentences — the fewest number since the death penalty was reinstated in 1976.  Of the 31 states that legally retain the death penalty, only 14 — or less than half — imposed a single death sentence in 2015.  When we look at the county level, the large-scale abandonment of the death penalty in the country becomes even more apparent.  Of the 3,143 county or county equivalents in the United States, only 33 counties — or one percent — imposed a death sentence in 2015. Just 16 — or one half of one percent — imposed five or more death sentences between 2010 and 2015.  Among these outliers, six are in Alabama (Jefferson and Mobile) and Florida (Duval, Hillsborough, Miami-Dade, and Pinellas)—the only two states that currently permit non-unanimous death verdicts.  Of the remaining 10 counties, five are located the in highly-populated Southern California region (Kern, Los Angeles, Orange, Riverside, and San Bernardino). The others include Caddo Parish (LA), Clark (NV), Dallas (TX), Harris (TX), and Maricopa (AZ). As Justice Stephen Breyer noted in his 2015 dissent in Glossip v. Gross, “the number of active death penalty counties is small and getting smaller.”

In this two-part report, we have endeavored to figure out what makes these 16 counties different by examining how capital punishment operates on the ground in these outlier death-sentencing counties. In Part II, we highlight Dallas (TX), Jefferson (AL), San Bernardino (CA), Los Angeles (CA), Orange (CA), Miami-Dade (FL), Hillsborough (FL), and Pinellas (FL) counties.

Our review of these counties, like the places profiled in Part I, reveals that these counties frequently share at least three systemic deficiencies: a history of overzealous prosecutions, inadequate defense lawyering, and a pattern of racial bias and exclusion. These structural failings regularly produce two types of unjust outcomes which disproportionately impact people of color: the wrongful conviction of innocent people, and the excessive punishment of persons who are young or suffer from severe mental illnesses, brain damage, trauma, and intellectual disabilities.

This is what capital punishment in America looks like today. While the vast majority of counties have abandoned the practice altogether, what remains is the culmination of one systemic deficiency layered atop another.  Those who receive death sentences do not represent the so-called “worst of the worst.”  Rather, they live in counties with overzealous and often reckless prosecutors, are frequently deprived access to competent and effective representation, and are affected by systemic racial bias.  These individuals are often young, and many have significant mental impairments. Some are likely innocent.  This pattern offers further proof that, whatever the death penalty has been in the past, today it is both cruel and unusual, and therefore unconstitutional under the Eighth Amendment.

Prior related posts:

October 13, 2016 in Death Penalty Reforms, Detailed sentencing data, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (3)

Wednesday, October 12, 2016

"Every 25 Seconds: The Human Toll of Criminalizing Drug Use in the United States"

2016-10-usa-coverThe title of this post is the title of this lengthy new Human Rights Watch report. Here is part of the report's summary introduction:

Every 25 seconds in the United States, someone is arrested for the simple act of possessing drugs for their personal use, just as Neal and Nicole were. Around the country, police make more arrests for drug possession than for any other crime. More than one of every nine arrests by state law enforcement is for drug possession, amounting to more than 1.25 million arrests each year. And despite officials’ claims that drug laws are meant to curb drug sales, four times as many people are arrested for possessing drugs as are arrested for selling them.

As a result of these arrests, on any given day at least 137,000 men and women are behind bars in the United States for drug possession, some 48,000 of them in state prisons and 89,000 in jails, most of the latter in pretrial detention. Each day, tens of thousands more are convicted, cycle through jails and prisons, and spend extended periods on probation and parole, often burdened with crippling debt from court-imposed fines and fees. Their criminal records lock them out of jobs, housing, education, welfare assistance, voting, and much more, and subject them to discrimination and stigma. The cost to them and to their families and communities, as well as to the taxpayer, is devastating. Those impacted are disproportionately communities of color and the poor.

This report lays bare the human costs of criminalizing personal drug use and possession in the US, focusing on four states: Texas, Louisiana, Florida, and New York. Drawing from over 365 interviews with people arrested and prosecuted for their drug use, attorneys, officials, activists, and family members, and extensive new analysis of national and state data, the report shows how criminalizing drug possession has caused dramatic and unnecessary harms in these states and around the country, both for individuals and for communities that are subject to discriminatory enforcement.

There are injustices and corresponding harms at every stage of the criminal process, harms that are all the more apparent when, as often happens, police, prosecutors, or judges respond to drug use as aggressively as the law allows. This report covers each stage of that process, beginning with searches, seizures, and the ways that drug possession arrests shape interactions with and perceptions of the police—including for the family members and friends of individuals who are arrested. We examine the aggressive tactics of many prosecutors, including charging people with felonies for tiny, sometimes even “trace” amounts of drugs, and detail how pretrial detention and long sentences combine to coerce the overwhelming majority of drug possession defendants to plead guilty, including, in some cases, individuals who later prove to be innocent.

The report also shows how probation and criminal justice debt often hang over people’s heads long after their conviction, sometimes making it impossible for them to move on or make ends meet. Finally, through many stories, we recount how harmful the long-term consequences of incarceration and a criminal record that follow a conviction for drug possession can be—separating parents from young children and excluding individuals and sometimes families from welfare assistance, public housing, voting, employment opportunities, and much more.

October 12, 2016 in Drug Offense Sentencing, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

Old prison problems from new school smuggling

This new Washington Post piece discusses and old prison problem and its new dimensions.  The piece is headlined "Prisons try to stop drones from delivering drugs, porn and cellphones to inmates," and here are excerpts:

Prison inmates, a remarkably ingenious bunch, are disrupting long-standing methods of smuggling drugs, porn and cellphones the same way online retailers hope to one day deliver socks and underwear to American homes — through the air, with drones.

By coordinating with wingmen on the outside for shipments of contraband, inmates can bypass the need to bribe corrupt guards or persuade family members to hide forbidden items in body cavities.

Though nobody is precisely sure just how many drones are landing every day in prisons, the threat is global.  Last year, there was a melee at an Ohio prison after a drone dropped heroin into the exercise yard.  In April, security cameras at a London prison recorded a drone delivering drugs directly to an inmate’s window.

And in Western Maryland earlier this year, prosecutors convicted a recently released inmate and a prisoner serving a life sentence on charges of attempted drug distribution and delivery of contraband after they completed several nighttime missions netting them $6,000 per drop in product sales.  It was such a lucrative scheme that the former inmate had purchased a new truck for himself with the profits....

Prison officials are dealing with this new threat even as inmates continue using older, higher-risk methods.  Earlier this month, more than 50 correctional officers and inmates were charged in a smuggling scheme at Eastern Correctional Institution, Maryland’s largest prison.

Drone deliveries, while clever, aren’t all that surprising given how much time inmates spend watching television news, security officials say.  They’ve likely seen stories about retailers such as Amazon (founded by Washington Post owner Jeffrey P. Bezos) pushing the concept.  “We are trying to keep up with technology just like everyone else,” said Stephen T. Moyer, secretary of Public Safety & Correctional Services for Maryland. “So this is a huge challenge for all of us in corrections.”...

The threats to prisons and other facilities have given rise to start-ups selling anti-drone detection systems that use thermal imaging and other technology to spot airborne infiltrators. Some executives have jokingly compared the technology to “Star Wars” — not the movies, but the Reagan-era missile defense system.

October 12, 2016 in Prisons and prisoners | Permalink | Comments (0)

"The Challenges of 'Improving' the Modern Death Penalty"

I had the opportunity and honor of speaking at a Duke Law School symposium about the death penalty earlier this year, and the follow-up essay has now been published and can be accessed here via SSRN. The essay has the same title as the title of this post, and here is the SSRN abstract:

In his dissent in McCleskey v. Kemp, Justice William Brennan turned a famous phrase that has long resonated with criminal justice reformers. In upholding Georgia’s capital sentencing system, the majority expressed concern about Eighth Amendment claims based on statistics revealing racial disparities in the application of the death penalty, fearing that such claims “would open the door to widespread challenges to all aspects of criminal sentencing.” Justice Brennan lamented that “on its face, such a statement seems to suggest a fear of too much justice.”

Disconcertingly, almost everyone seriously involved in debates over the modern administration of death penalty seemingly has a fear of too much capital justice. This essay seeks to explain this practical reality of modern death penalty advocacy in order to spotlight the problems it necessarily creates for any sustained efforts to improve the modern death penalty. By unpacking the fear of too much capital justice among capital punishment’s active supporters and ardent opponents, this essay seeks first to expose an enduring disconnect between lay interest and insider advocacy concerning death penalty reform, and second to explain my pessimistic concern that even moderate and modest efforts to improve the modern administration of capital punishment may, more often than not, constitute something of a fool’s errand.

After discussing these dynamics surrounding modern capital punishment advocacy and reform, this essay closes by admitting uncertainty concerning what enduring lessons should be drawn from my observations for the future of the death penalty in the United States. It may be tempting to conclude simply that it would be far wiser for existing death penalty jurisdictions to try to end, rather than just mend, their modern capital punishment systems. But in an effort to provide a silver lining to what may otherwise seem like a dark story, this essay concludes by noting some unique potential benefits for American criminal justice systems when capital jurisdictions try (and fail) to achieve “too much justice” in their death penalty systems.

October 12, 2016 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (4)

You be the judge: what sentence for mother and grandmother who delivered deadly heroin to teen?

The question in the title of this post is prompted by this disturbing AP story headlined "Mom, grandma face sentencing in teen's heroin death at hotel." Here are the depressing details:

The mother and grandmother of a teen who died from a heroin overdose at an Ohio hotel are scheduled to be sentenced for giving the 16-year-old the drugs that killed him.  Prosecutors say the grandmother delivered the drugs that her daughter and a friend used with the teen at a hotel in suburban Akron.

Investigators say Andrew Frye was found dead last April in a chair inside the hotel room that was littered with syringes and drug paraphernalia.

Both his mother, Heather Frye, and grandmother, Brenda Frye, pleaded guilty to involuntary manslaughter and other charges last month.  Prosecutors say Brenda Frye got the heroin from her boyfriend who pleaded guilty to heroin possession.

This prior story about the guilty pleas entered last month reports that the mother, Heather Frye, is 31 years old and the grandmother, Brenda Frye, is 52 years old.  With those additional details, I am now genuinely interested in and eager to hear from readers about what they think would be a fair and effective sentence for these two individuals.

October 12, 2016 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

Tuesday, October 11, 2016

"Could Atticus Finch get elected?"

ToKillMockngbrd_150PyxurzThe question in the title of this post is the headline of this notable new commentary authored by Kevin Burke, who is a state trial judge in Minnesota and past president of the American Judges Association. Here are excerpts:

Atticus Finch, the fictional lawyer in “To Kill a Mockingbird,” passionately believed in justice. He didn't like criminal law, yet he accepted the appointment to represent Tom Robinson, an African-American man charged with raping a young white girl. The story, set in Maycomb County, Alabama, in the early 1930s, portrays a lawyer who felt that the justice system should be colorblind. Had Atticus Finch run for office after the trial, could he have been elected?

A web video from the Republican National Committee darkly portrays Democratic vice presidential nominee Sen. Tim Kaine as having “protected the worst kinds of people” on death row as a defense attorney.  The video features Lem Tuggle, whom Kaine defended on rape and murder charges. Tuggle was eventually executed. The video also focuses on Richard Lee Whitley, who was executed despite what the Richmond Times-Dispatch described as “about 1,000 hours of largely free legal work” on Kaine's part.  We admire Atticus Finch, so why is it that Kaine’s defense of death penalty defendants is treated differently?

Representing unpopular clients has a long tradition in the American legal system.  John Adams represented British soldiers accused of murder in the 1770 Boston Massacre. Before agreeing to represent the British soldiers (who were that era’s terrorists), Adams worried about his reputation.  Yet, he said of his experience, “The Part I took in Defence of Cptn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country. Judgment of Death against those Soldiers would have been as foul a Stain upon this Country as the Executions of the Quakers or Witches, anciently. As the Evidence was, the Verdict of the Jury was exactly right.”  John Adams was elected president of the United States.  In an age of 24-hour cable, Willie Horton ads, and internet-driven misinformation, could Adams be elected president today?

Paul Clement was a superstar appellate lawyer in the Bush administration.  After resigning as solicitor general of the United States, he joined King & Spalding as a partner. Clement agreed to represent the Republican majority in the U.S. House of Representatives to defend the Defense of Marriage Act, the law that federally defined marriage as between one man and one woman.  Shortly thereafter, King & Spalding withdrew from the case, and Clement promptly resigned from the firm to continue his representation. He said, "Representation should not be abandoned because the client's legal position is extremely unpopular in certain quarters." Clement’s decision to leave his firm had a notable defender: Attorney General Eric Holder.  Holder said, “In ... representing Congress in connection with DOMA, I think he is doing that which lawyers do when we’re at our best ... [the] criticism, I think, was very misplaced.”

“Mr. Clement’s statement misses the point entirely,” Richard Socarides, president of Equality Matters, wrote in The New York Times. “While it is sometimes appropriate for lawyers to represent unpopular clients when an important principle is at issue, here the only principle he wishes to defend is discrimination and second-class citizenship for gay Americans.”

Paul Clement will likely never run for public office, but there are those who speculate Clement may someday be nominated for the U.S. Supreme Court.  The confirmation process has become quite partisan.  Would it be fair to deny him confirmation because of his representation of a client and defense of a ban on gay marriage?

In 2014, the Senate rejected the nomination of Debo Adegbile to be chief of the Civil Rights Division of the Justice Department. Adegbile's nomination was rejected because as an executive of the NAACP Legal Defense Fund, he worked on a series of briefs made on behalf of Mumia Abu-Jamal, who was convicted of killing a Philadelphia police officer in 1991. Every Republican senator voted against Adegbile and several Democrats joined them.  “I made a conscientious decision [to vote against Adegbile] after talking to the wife of the victim,” Democratic Sen. Joe Manchin told reporters.  After talking with gay victims of discrimination would it be appropriate for a senator to vote against Paul Clement?...

Edward Bennett Williams was among the greatest trial lawyers of the last century. He represented a slew of unpopular clients, including Jimmy Hoffa, organized crime figures Sam Giancana and Frank Costello, as well as Sen. Joe McCarthy. In a speech given to the New York State Bar Association, Williams argued there was an epidemic of “guilt by client,” and warned of the “insidious identification” that would scare off lawyers from standing by the unpopular and degraded. Williams said, “When a doctor takes out Earl Browden's appendix, nobody suggests that the doctor is a Communist [Browden was the head of the American Communist Party]. When a lawyer represents Browden, everybody decides that lawyer must be a Communist, too.”...

Not every lawyer has the skill to represent a person facing the death penalty, nor the skill to argue before the Supreme Court. The video suggests you should not vote for Kaine because he had that skill, but should we embrace the demagoguery of the video used against him? This is not an issue about lawyers’ ethics; it is about what each of us wants from the American system of justice.

John Ferguson was executed after he tricked his way into a woman’s home and bound, blindfolded, and then shot eight people. Six of them died. While under indictment for those crimes, Ferguson murdered two teenagers on their way to church. What kind of lawyer would defend John Ferguson? The lawyer was Chief Justice John Roberts.

October 11, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (7)

Fascinating SCOTUS per curiam summary opinion stresses that Eighth Amendment still limits victim testimony in capital cases

The Supreme Court's order list this morning includes a little and very interesting summary opinionin Bosse v. Oklahoma, No. 15-9173 (S. Ct. Oct. 11, 2016) (available here). The order rules in favor of Shaun Michael Bosse, who was convicted and sentence to death by a jury "of three counts of first-degree murder for the 2010 killing of Katrina Griffin and her two children." Here is the per curiam Bosse ruling account of the problem below and its consequences:

Over Bosse’s objection, the State asked three of the victims’ relatives torecommend a sentence to the jury. All three recommended death, and the jury agreed. Bosse appealed, arguing that this testimony about the appropriate sentence violated the Eighth Amendment under Booth. The Oklahoma Court of Criminal Appeals affirmed his sentence, concluding that there was “no error.” 2015 OK CR 14, ¶¶ 57–58, 360 P. 3d 1203, 1226–1227. We grant certiorari and the motion for leave to proceed in forma pauperis, and now vacate the judgment of the Oklahoma Court of Criminal Appeals.

“[I]t is this Court’s prerogative alone to overrule one of its precedents.” United States v. Hatter, 532 U. S. 557, 567 (2001) (quoting State Oil Co. v. Khan, 522 U.S. 3, 20 (1997); internal quotation marks omitted); see Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 484 (1989). The Oklahoma Court of Criminal Appeals has recognized that Payne “specifically acknowledged its holding did not affect” Booth’s prohibition on opinions about the crime, the defendant, and the appropriate punishment. Ledbetter, 933 P.2d at 890–891. That should have ended its inquiry into whether the Eighth Amendment bars such testimony; the court was wrong to go further and conclude that Payne implicitly overruled Booth in its entirety. “Our decisions remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality.” Hohn v. United States, 524 U. S. 236, 252–253 (1998).

The Oklahoma Court of Criminal Appeals remains bound by Booth’s prohibition on characterizations and opinions from a victim’s family members about the crime, the defendant, and the appropriate sentence unless this Court reconsiders that ban.  The state court erred in concluding otherwise. 

The State argued in opposing certiorari that, even if the Oklahoma Court of Criminal Appeals was wrong in its victim impact ruling, that error did not affect the jury’s sentencing determination, and the defendant’s rights were in any event protected by the mandatory sentencing review in capital cases required under Oklahoma law. See Brief in Opposition 14–15. Those contentions may be addressed on remand to the extent the court below deems appropriate.

Justice Thomas (joined by Justice Alito) added this one paragraph concurring opinion:

We held in Booth v. Maryland, 482 U. S. 496 (1987), that the Eighth Amendment prohibits a court from admitting the opinions of the victim’s family members about the appropriate sentence in a capital case. The Court today correctly observes that our decision in Payne v. Tennessee, 501 U.S. 808 (1991), did not expressly overrule this aspect of Booth.  Because “it is this Court’s prerogative alone to overrule one of its precedents,” State Oil Co. v. Khan, 522 U.S. 3, 20 (1997), the Oklahoma Court of Criminal Appeals erred in holding that Payne invalidated Booth in its entirety.  In vacating the decision below, this Court says nothing about whether Booth was correctly decided or whether Payne swept away its analytical foundations. I join the Court’s opinion with this understanding.

October 11, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

"Slave Narratives and the Sentencing Court"

The title of this post is the title of this interesting new paper authored by Lindsey Webb available via SSRN (and which certainly serves as an interesting scholarly "chaser" after watching the new documentary 13th). Here is the abstract:

The United States incarcerates a greater percentage of its population than any other country in the world.  Courts are substantially more likely to sentence African American and Latino people to prison than white people in similar circumstances, and African Americans in particular represent a grossly disproportionate percentage of the incarcerated population. Violence and other ills endemic to jails and prisons are thus disproportionately experienced by people of color.

This Article argues that criminal defense lawyers should explicitly address conditions of confinement at sentencing.  In doing so, a criminal defense lawyer has the opportunity to serve as both advocate and abolitionist.  As advocates, defense lawyers can incorporate information about conditions of confinement into sentencing narratives to support arguments for shorter sentences or against imprisonment altogether.  As abolitionists, defense lawyers can juxtapose the humanity of their clients with the poor or even dire conditions of confinement in our jails and prisons — not only to influence the court’s decision about an individual client’s sentence, but to impact the court’s view of our systems of incarceration as a whole.  Defense lawyers acting as abolitionists thus seek to disrupt and dismantle a system of imprisonment that disproportionately affects African American and Latino people in significant and damaging ways.

In examining how invoking conditions of confinement at sentencing engages defense attorneys as advocates and abolitionists, this Article seeks insight from a tool of abolitionists and advocates from a different time: Civil War-era slave narratives.  Slave narratives exposed the hidden conditions of slavery while also seeking to humanize the enslaved people subjected to those conditions.  Using slave narratives as a touchstone in a conversation about sentencing advocacy provides a new perspective on the role of storytelling in litigation and social movements, including questions of who tells the story and which stories are told, in the context of systems of control with deep disparate impacts based on race.

October 11, 2016 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

Monday, October 10, 2016

Is supposedly "tough-on-crime" GOP Senator (and former federal prosecutor) Jeff Sessions actually not-so-tough on sexual assault?

The provocative question in the title of this post is my reaction to seeing these two new (right-leaning-source) stories about comments made last night by Alabama GOP Senator (and former US Attorney) Jeff Sessions:

From RedState here, "Senator Jeff Sessions Unsure Whether Grabbing Women by Their Genitals is Sexual Assault"

From the Weekly Standard here, "Jeff Sessions: Behavior Described by Trump in 'Grab Them by the P---y' Tape Isn't Sexual Assault"

One of many notable aspects of GOP Prez candidate Donald Trump's campaign has been the fact that his three most-prominent political surrogates are all former US Attorneys: Chris Christie was US Attorney for New Jersey from 2002 to 2008, Rudy Giuliani was US Attorney for the Southern District of New York from 1983 to 1989, and Jeff Sessions was US Attorney for the Southern District of Alabama from 1981 to 1993.  I have long assumed that this notable troika of US Attorneys advising Trump has played a significant role in Trump's effort to brand himself as the "law-and-order" candidate.

As regular readers surely know, I often have a number of different perspectives on a number of crime and punishment issues than do many current and former US Attorneys.  As I also hope readers also realize, I always have had a significant amount of respect for the professional honesty and personal integrity of current and former US Attorneys.  But Senator Sessions' statements reported above (as well as some other actions by Chris Christie and Rudy Giuliani in recent weeks and months) has really dealt a significant blow to my continued ability to have continued respect for the professional honesty and personal integrity of at least some former US Attorneys.

UPDATE: This local article reports on Senator Sessions' effort to clarify his remarks under the headline, "Sen. Jeff Sessions denies dismissing Trump's lewd video comments: 'Crystal clear' sexual assault unacceptable."

October 10, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (70)

Detailing how litigation over lethal injection methods has shut down Mississippi's machinery of death for now a half-decade

I had the great fortune of having the Assistant Chief Counsel for Ohio Governor John Kasich come speak to my OSU Moritz College of Law Sentencing Class about the decade-long litigation in Ohio over the state's various lethal injection protocols (which, as this post explains, is now poised to kick into yet another new phase).  With that class freshly in mind, I was intrigued to see this notable new local AP story headlined "Death penalty stalls in Mississippi."  Here are excerpts:

With sprawling litigation over Mississippi’s use of execution drugs now scheduled to stretch into 2017, the state could go five years without executing a death row inmate. That would be the longest gap between executions in Mississippi in 15 years.

Mississippi has executed 21 people, all men, since the death penalty resumed. That includes a 13-year gap between the 1989 execution of Leo Edwards and the 2002 execution of Tracy Edwards.  During that time, executions stalled out over concerns about adequate legal representation for the condemned.  That’s also when Mississippi switched it execution method from the gas chamber to lethal injection.  Multiyear gaps remained even after 2002, but the state picked up the pace, executing 11 people in a 25-month span ending in 2002.  Then, just as it became routine, the death penalty sputtered out.

That halt is in some ways a tribute to lawyer Jim Craig.  He’s tying state government in knots fighting Mississippi’s plan to use a new drug to render prisoners unconscious before injecting additional drugs to paralyze them and stop their hearts.   Craig, of the MacArthur Justice Center, says the litigation isn’t aimed at overturning the death penalty in Mississippi, only at seeking a better way of executing people.  But he’s doing a good job of keeping his clients alive.

On behalf of Richard Jordan, Ricky Chase and Charles Ray Crawford, Craig argues Mississippi can’t use midazolam as a sedative because it doesn’t meet state law’s specification for an “ultra-short-acting barbiturate” Until 2012, the state used pentobarbital. But drug makers have choked off supplies of the drug for executions.

Midazolam doesn’t render someone unconscious as quickly as a barbiturate. Craig argues midazolam leaves an inmate at risk of severe pain during execution, violating the U.S. Constitution’s prohibition on cruel and unusual punishment. The U.S. Supreme Court in 2015 upheld as constitutional Oklahoma’s use of midazolam, but Craig’s lawsuit is based in part on his claims about Mississippi state law. He’s also trying to reopen other issues surrounding midazolam.

One part of Craig’s legal offensive is a federal challenge to the drug’s use. U.S. District Judge Henry T. Wingate had issued a preliminary injunction freezing executions, but executions didn’t resume when appeals judges lifted the freeze in July. Last month, Craig and lawyers for Attorney General Jim Hood extended that lawsuit into next year, setting a trial for May. Craig rates it unlikely that the state Supreme Court will green-light executions with that case unresolved. “They aren’t stayed automatically,” Craig said. “But I think the Mississippi Supreme Court will respect the federal process and thus will not set execution dates while the federal case is active.”

To aid that case, Craig is also fighting Missouri, Georgia and Texas in court, arguing they must say who’s still supplying them with pentobarbital, so he can argue Mississippi has alternatives to midazolam and could return to its old drug. Mississippi said it destroyed all its pentobarbital and can’t get more.

There are also three cases before the Mississippi Supreme Court. Crawford is challenging the state’s ability to execute him with a drug compounded from raw ingredients, how other states are likely getting pentobarbital. Meanwhile, Jordan and Gerald Loden are fighting use of midazolam based on the barbiturate requirement.

Hood says he’s working to resume executions, but acknowledges Craig’s efforts are gumming the works. “The Mississippi Supreme Court’s resolution of those pending petitions will determine when any executions will be re-set,” Hood said in a statement. “Any delay in the federal lawsuit has been the result of the Jordan plaintiffs’ strategic decisions.”

October 10, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Coming SCOTUS argument "week" (lasting one day) should still be of interest to criminal justice fans

At Crime & Consequences here, Kent Scheidegger briefly explains why this week the "US Supreme Court has a one-day argument week": "Monday is a legal holiday, Columbus Day. No arguments are scheduled for Wednesday, which is Yom Kippur. So it's all about Tuesday." Kent also has this brief and interesting accounting of the two criminal cases to be heard by SCOTUS tomorrow:

The main action, for our purposes, is Peña-Rodriguez v. Colorado, asking whether the Constitution requires an exception to the time-honored rule that you can't impeach a jury verdict by calling the jurors to testify as to what was said during deliberations.  CJLF's brief, written by Kym Stapleton, is here.  Our press release is here.

Manrique v. United States is a technical question about restitution.  The Question Presented, as drafted by counsel for defendant, occupies an entire page and is a fine example of how not to write a Question Presented.   However, the fact that the Court took it anyway is an example of why that may not matter as much as some of us think.

For those eager for a more details review of what these cases are about, factually and legally, here are case links and more fulsome previews via SCOTUSblog:

Manrique v. United States, No. 15-7250: Argument preview: Can an appellate court consider a challenge to the amount of a restitution award as part of an appeal of the underlying sentence? 

Pena-Rodriguez v. Colorado, No. 15-606: Argument preview: Justices to consider racial bias in jury deliberations

October 10, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Sunday, October 9, 2016

"Betterman v. Montana and the Underenforcement of Constitutional Rights at Sentencing"

The title of this post is the title of this new essay authored by Carissa Byrne Hessick now available via SSRN. Here is the abstract:

This past Term, in Betterman v. Montana, the U.S. Supreme Court took up the question whether the Sixth Amendment’s speedy trial guarantee applies to sentencing proceedings. In a unanimous opinion by Justice Ginsburg, the Court held that it does not.  Perhaps in order to achieve unanimity, Betterman left open important questions, which may ultimately allow defendants, at least in some situations, to demand a speedy sentencing.  But, as this short commentary explains, Betterman represents an unfortunate example of the courts’ tendency to underenforce constitutional rights at sentencing.

October 9, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Saturday, October 8, 2016

Reviewing the nature and stakes for death penalty ballot initiatives in three states

This lengthy new AP article, headlined "Repeal or Reform? Death Penalty Voter Decisions for 3 States," provides a useful rundown of the capital punishment issues coming before voters next month in three states. Here is how the article gets started:

California's dysfunctional death penalty faces a fate in November that seems fitting: voters can put it out of its misery, or fix it so it does what it promises. The state is among three where voters will make decisions on capital punishment. California's ballot initiatives — one would repeal capital punishment, the other would speed up appeals so convicted murderers are actually executed — are fueled by those who agree only that the current system is broken, leaving murder victims' kin grieving and the condemned languishing on death row.

Meanwhile, voters in Nebraska will be asked whether they want to reinstate the death penalty and Oklahoma residents will decide whether to make it harder to abolish it.

In California, more than 900 convicted murderers have been sent to death row since 1978 — but only 13 have been executed in the state. Many more have died of natural causes and no one has been put to death in more than a decade after a judge ordered an overhaul to the state's lethal injection procedure.

The votes for the three states come amid an evolution for capital punishment in the U.S. Executions have mostly been in decline since the turn of the century and last year reached their lowest level in 25 years, with 28 prisoners killed. Capital punishment has been either legislatively or judicially repealed in eight states since 2000, according to Robert Dunham, executive director of the Death Penalty Information Center.

October 8, 2016 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1)

Friday, October 7, 2016

Am I crazy to actually be expecting a marijuana (or drug war/opioid) question during Sunday's town-hall Prez debate?

Especially because neither marijuana reform nor the opioid epidemic came up during the the first Prez debate (or the VP debate), I am actually anticipating that these topics will be raised in some way during the town-hall debate scheduled for this coming Sunday.  As regular readers of my Marijuana Law, Policy and Reform blog might guess, I think the very best question to ask the candidates could link these topics.  Specifically, here is the question I would love to see asked on Sunday:

"Given the evidence emerging from a number of early studies that opioid use and abuse has generally been reduced in those states that have reformed their marijuana laws, will you commit your Administration in its first 100 days to move federal law away from blanket marijuana prohibition?"

I welcome readers to suggest their own questions on these topics in the comments (and recent posts at my other blog provides plenty of ideas for all sorts of possible questions):

October 7, 2016 in Campaign 2016 and sentencing issues, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (3)

This weekend's must-watch: 13th, Ava DuVernay's new documentary linking slavery and mass incarceration

As noted in this prior post, my screen time last weekend was devoted to my favorite bi-annual sporting event. And I suspect much of this weekend will be focused on one of my favorite annual playoffs. But the must-watch for this weekend is on a much more serious set of subjects, the US history of slavery and its echoes within mass incarceration. These are the topics covered in a new Netflix documentary, which YouTube describes in this way along providing this preview:

The title of Ava DuVernay’s extraordinary and galvanizing documentary 13TH refers to the 13th Amendment to the Constitution, which reads “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States.” The progression from that second qualifying clause to the horrors of mass criminalization and the sprawling American prison industry is laid out by DuVernay with bracing lucidity. With a potent mixture of archival footage and testimony from a dazzling array of activists, politicians, historians, and formerly incarcerated women and men, DuVernay creates a work of grand historical synthesis. On Netflix October 7.

I would be excited to watch this new documentary even if it did not receive strong reviews.  But, as these reviews/headlines highlight, I am not the only one thinking this new doc is a must-watch:

And, perhaps unsurprisingly, a notable negative review makes me even more eager to watch and re-watch this new doc:

October 7, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Television | Permalink | Comments (3)

Thursday, October 6, 2016

Great Supreme Court Fellows opportunity for all current and future sentencing researchers/advocates

I am pleased and honored to again have been requested by the Office of the Counselor to the Chief Justice of Supreme Court of the United States to promote the Supreme Court Fellows program.  These links and information about the program were sent my way by the Counselor's Office to make sure this opportunity gets all the attention (and applicants) that it merits:

We are grateful for your continued assistance in promoting the Supreme Court Fellows Program on the Sentencing Law & Policy Blog, and in particular flagging the placement opportunity at the U.S. Sentencing Commission.  As our description of placements indicates, the Fellow at the Sentencing Commission will participate in professional teams conducting policy, legal, and social science research on the cutting edge of criminal sentencing reform.  The breadth of the Commission’s work and its relatively small size provide the Fellow with both a wide-ranging exposure to criminal law and opportunities for active participation in addressing sentencing issues.  One quarter of the Fellow’s time will be set aside for research and writing of a publishable scholarly work on a topic in criminal or sentencing law.

The Supreme Court Fellows Program website contains detailed information about the Program as well as the online application.  Fellows become employees of the federal courts and receive salaries equivalent to GS-13/1 of the government pay scale at the applicable locality rate — currently $92,145.

We very much appreciate anything you can do to call the fellowship to the attention of strong candidates, as well as others who might help us identify them.  Our recruiting is targeted to current or recent law clerks who are exploring careers in academia or public service. The application deadline for 2017-18 fellowships is November 4, 2016.

October 6, 2016 in Who Sentences? | Permalink | Comments (0)

Prez Obama commutes 102 more federal prison sentences

I just saw via various news sources that President Obama issued 102 more commutations this afternoon.  This blog post by the White House counsel reports the basics, and here is how it gets started:

Today, President Obama granted commutations to another 102 individuals who have demonstrated that they are deserving of a second chance at freedom.  The vast majority of today’s grants were for individuals serving unduly harsh sentences for drug-related crimes under outdated sentencing laws. With today’s grants, the President has commuted 774 sentences, more than the previous 11 presidents combined.  With a total of 590 commutations this year, President Obama has now commuted the sentences of more individuals in one year than in any other single year in our nation’s history.

While he will continue to review cases on an individualized basis throughout the remainder of his term, these statistics make clear that the President and his administration have succeeded in efforts to reinvigorate the clemency process. Beyond the statistics, though, are stories of individuals who have overcome the longest of odds to earn this second chance.  The individuals receiving commutation today are mothers and fathers, sons and daughters, and in some cases grandparents.  Today, they and their loved ones share the joy of knowing that they will soon be reunited.

October 6, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

"6 Million Lost Voters: State-Level Estimates of Felony Disenfranchisement, 2016"

E6092bbb47a17ed3d778bf40f917-convicted-felons-votingThe title of this post is the title of this timely new study on felony disenfranchisement released today by The Sentencing Project and authored by researchers Christopher Uggen, Ryan Larson, and Sarah Shannon. Here is the start of the report's "Overview" section:  

The United States remains one of the world’s strictest nations when it comes to denying the right to vote to citizens convicted of crimes. An estimated 6.1 million Americans are forbidden to vote because of “felony disenfranchisement,” or laws restricting voting rights for those convicted of felony-level crimes.

In this election year, the question of voting restrictions is once again receiving great public attention.  This report is intended to update and expand our previous work on the scope and distribution of felony disenfranchisement in the United States (see Uggen, Shannon, and Manza 2012; Uggen and Manza 2002; Manza and Uggen 2006). The numbers presented here represent our best assessment of the state of felony disenfranchisement as of the November 2016 election.

Our key findings include the following:

• As of 2016, an estimated 6.1 million people are disenfranchised due to a felony conviction, a figure that has escalated dramatically in recent decades as the population under criminal justice supervision has increased.  There were an estimated 1.17 million people disenfranchised in 1976, 3.34 million in 1996, and 5.85 million in 2010.

• Approximately 2.5 percent of the total U.S. voting age population — 1 of every 40 adults — is disenfranchised due to a current or previous felony conviction.

• Individuals who have completed their sentences in the twelve states that disenfranchise people post-sentence make up over 50 percent of the entire disenfranchised population, totaling almost 3.1 million people.

• Rates of disenfranchisement vary dramatically by state due to broad variations in voting prohibitions. In six states — Alabama, Florida, Kentucky, Mississippi, Tennessee, and Virginia — more than 7 percent of the adult population is disenfranchised.

• The state of Florida alone accounts for more than a quarter (27 percent) of the disenfranchised population nationally, and its nearly 1.5 million individuals disenfranchised post-sentence account for nearly half (48 percent) of the national total.

• One in 13 African Americans of voting age is disenfranchised, a rate more than four times greater than that of non-African Americans.  Over 7.4 percent of the adult African American population is disenfranchised compared to 1.8 percent of the non-African American population.

• African American disenfranchisement rates also vary significantly by state. In four states — Florida (21 percent), Kentucky (26 percent), Tennessee (21 percent), and Virginia (22 percent) — more than one in five African Americans is disenfranchised.

This report reinforces my view that Prez candidate Donald Trump is right about one thing: our election system is "rigged." But when he makes that claim, I am pretty sure he is not complaining about the facts detailed in this study documenting why and where about "2.5 percent of the total U.S. voting age population — 1 of every 40 adults — is disenfranchised."

October 6, 2016 in Campaign 2016 and sentencing issues, Collateral consequences, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Noting the tide starting to turn in litigation challenging sex offender residency restrictions

The Marshall Project has this notable new article on a notable new development concerning sex offender residency restrictions.  The article is headlined "Making the Case Against Banishing Sex Offenders: Legislators won’t touch the subject, but courts are proving more sympathetic."  Here is how it gets started:

Mary Sue Molnar estimates that she gets at least five calls a week from Texans on the sex offender registry who can’t find a place to live. Numerous towns around the state have passed ordinances prohibiting those on the list from residing within a certain distance — anywhere from 500 to 3,500 feet — of a school, park, daycare facility or playground. In some towns, that’s almost everywhere.  “We’ve got people living in extended-stay motels,” says Molnar, who runs the sex-offender-rights group Texas Voices for Reason and Justice. “We’re in a crisis mode.”

Molnar and her allies have considered lobbying the Legislature to ban these ordinances, but they’ve found lawmakers unreceptive in the past to any bill perceived to benefit sex offenders. So she decided to go to court.  Molnar enlisted a small army of parents and siblings of sex offenders to compile a list of towns with such ordinances, and assembled research showing that the rules can actually make the public less safe.  She enlisted Denton lawyer Richard Gladden.  He was already representing Taylor Rice, who as a 20 year-old had sex with a 14 year-old he met online and now, after his conviction for sexual assault, was legally barred from living with his parents because their house was too close to a high school’s baseball field.

Gladden had found a 2007 opinion by then-attorney general (now governor) Greg Abbott saying that towns with fewer than 5,000 residents — which fall into a particular legal category in Texas — are not authorized by the state to enact such restrictions on their own.  Gladden sent letters threatening lawsuits to 46 city councils.  Within two months, half of them had repealed their ordinances.  Gladden and Molnar are currently suing 11 of the remaining towns.  Restrictions on where registered sex offenders can work, live, and visit vary widely from state to state and city to city.

Over the last few years, Molnar and her counterparts in other states have come to the same conclusion: Politicians aren’t going to help them. “Who wants to risk being called a pedophile-lover?” says Robin van der Wall, a North Carolina registrant on the board of the national group Reform Sex Offender Laws.  So the activists have taken the route favored by other politically unpopular groups and turned to the legal system, where they are more likely to encounter judges insulated from electoral concerns.

Their legal claims vary, but in numerous cases, reformers have argued that these restrictions associated with registration add up to a sort of second sentence, and that they are defined in a vague way that makes them difficult to abide by. In some cases, the plaintiffs have argued that individual towns have enacted restrictions above and beyond what states allow them to impose.

Their legal strategies are proving effective. This past August, the 6th U.S. Circuit Court of Appeals invalidated a Michigan law that retroactively applied various restrictions to people convicted before the laws were passed. Judge Alice Batchelder wrote that the law “has much in common with banishment and public shaming.” Since 2014, state and federal judges have struck down laws restricting where sex offenders can live in California, New York and Massachusetts.  In addition to the Texas lawsuits, there are ongoing legal battles over registries and restrictions associated with them in Illinois, Wisconsin, Louisiana, Alabama, Colorado, Nevada and, Idaho, among other states.

October 6, 2016 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)

Texas completes first US execution in nearly three months and only third since April

As noted in this post last month, titled "A not-so-deadly summer: only one US execution from Memorial Day to Labor Day," and as detailed on this DPIC executions page, there was almost a quasi-moratorium on executions throughout the United States this past summer as there was only one completed execution in the months of June, July and August.  But yesterday a mini-de-facto execution moratorium in the US ended thanks to, as reported here, Texas finally getting around to giving a lethal injection to a man who slaughtered his neighbors 13 years ago and then sought out his death sentence.  Here are the details:

An East Texas man who pleaded guilty to killing a neighbor couple during a shooting rampage 13 years ago and said he wanted to be put to death for the crime was executed Wednesday evening. Barney Fuller Jr., 58, had asked that all his appeals be dropped to expedite his death sentence.

Fuller never made eye contact in the death chamber with witnesses, who included the two children of the slain couple. Asked by Warden James Jones if he had any final statement, Fuller responded: “I don’t have anything to say. You can proceed on, Warden Jones.”

Fuller took a deep breath as Texas Department of Criminal Justice officials injected a lethal dose of pentobarbital into each arm, then blurted out: “Hey, you fixin’ to put me to sleep.” He took a couple of breaths, then began snoring. Within 30 seconds, all movement stopped.

Fuller was pronounced dead 38 minutes later, at 7:01 p.m. CDT. The time between when the drug was injected and when he was pronounced dead was somewhat longer than normal. “Each person is unique in how his body shuts down,” prison agency spokesman Jason Clark said, explaining the extended time.

Fuller became the seventh convicted killer executed this year in Texas and the first in six months in the nation’s most active capital punishment state.

Fuller surrendered peacefully at his home outside Lovelady, about 100 miles north of Houston, after a middle-of-the-night shooting frenzy in May 2003 that left his neighbors, Nathan Copeland, 43, and Copeland’s wife, Annette, 39, dead inside their rural home.  The couple’s 14-year-old son survived two gunshot wounds, and their 10-year-old daughter escaped injury because Fuller couldn’t turn the light on in her bedroom.

Court records show Fuller, armed with a shotgun, a semi-automatic carbine and a pistol, fired 59 shots before barging into the Copeland home and opening fire again. He had been charged with making a threatening phone call to Annette Copeland, and the neighbors had been engaged in a 2-year dispute over that. The Reuters news agency reports the gun was an AR-15 assault weapon and that the Copelands had also complained to police that Fuller had shot their dog, according to court documents.

Fuller pleaded guilty to capital murder. He declined to appear in court at his July 2004 trial and asked that the trial’s punishment phase go on without his presence. He only entered the courtroom when jurors returned with his sentence. Last year, Fuller asked that nothing be done to prolong his time on death row. “I do not want to go on living in this hellhole,” he wrote to attorney Jason Cassel.

A sheriff’s department dispatcher who took Annette Copeland’s 911 call about 1:30 a.m. on May 14, 2003, heard a man say: “Party’s over, bitch,” followed by a popping sound. Annette Copeland was found with three bullet wounds to her head. On Wednesday evening, one of her sisters who watched Fuller die said as she left the death chamber: “Party’s over, bastard.”

Cindy Garner, the former Houston County district attorney who prosecuted Fuller, described him as mean and without remorse. “It’s not a cheerful situation,” she said of the execution. “I just regret that this little, plain, country, nice, sweet family — bless their heart — moved in next door.”

Fuller’s execution was only the 16th in the U.S. this year, a downturn fueled by fewer death sentences overall, courts halting scheduled executions for additional reviews, and some death penalty states encountering difficulties obtaining drugs for lethal injections.

October 6, 2016 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (4)

Wednesday, October 5, 2016

"Victim Impact Statements and Expressive Punishment in the Age of Social Media"

The title of this post is the title of this new paper available via SSRN and authored by Erin Sheley. Here is the abstract:

Victim impact statements (VIS) are long-disfavored among legal commentators for allegedly injecting unnecessary, negative emotion into sentencing at the expense of the defendant, with ambiguous informational benefits to the sentencing body.  Most traditional arguments both for and against VIS turn on purely retributive or utilitarian grounds.

This essay takes up the Stanford sexual assault victim’s statement to propose an expressive framework for understanding the function of VIS, which resolves much of the theoretical confusion surrounding the traditional justifications.  I show how the expressive goals of criminal punishment have long been distorted by the mediation of traditional news reporting. I then analyze the legal relevance of the particular criminological values expressed in the Stanford statement to show how unmediated victim narratives may counterbalance media distortion, particularly in the age of social media transmission. I conclude that the criminal justice system better serves its expressive function by formally incorporating VIS into sentencing.

October 5, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (3)

Leading VP candidates talk a bit (encouragingly?) about criminal justice reform their only debate

There was a little discussion of policing, sentencing and criminal justice reform at last night's vice presidential debate, and I found most notable the fact that the GOP's VP candidate Mike Pence at one point said plainly and without reservation "We need criminal justice reform."  (The Democrats' GOP VP candidate Tim Kaine also talked, somewhat unsurprisingly, about the death penalty when asked how his personal faith created challenges for him in make political decisions.)  Perhaps even more important than the Gov Pence's simple statement that we "need" criminal justice reform was this further explanation of what he meant in this Q&A with the debate moderator (with my emphasis added):

QUIJANO: Your fellow Republican, Governor Pence, Senator Tim Scott, who is African-American, recently spoke on the Senate floor. He said he was stopped seven times by law enforcement in one year.... He said, "I have felt the anger, the frustration, the sadness, and the humiliation that comes with feeling like you're being targeted for nothing more than being just yourself." What would you say to Senator Scott about his experiences?

PENCE: Well, I have the deepest respect for Senator Scott, and he's a close friend. And what I would say is that we -- we need to adopt criminal justice reform nationally. I -- I signed criminal justice reform in the state of Indiana, Senator, and we're very proud of it.

I worked when I was Congress on a second chance act. We have got to do a better job recognizing and correcting the errors in the system that do reflect on institutional bias in criminal justice.

These statements reinforces my belief that, once we get fully through this election cycle, there is a really good chance that the still-growing bipartisan consensus supporting some form of federal statutory sentencing reform will finally be able to get some form of some bill through both houses of Congress and to the desk of the new President.  Of course, who wins seats in Congress and who is the new Prez and VP will certainly significantly impact what ends up in a federal statutory sentencing reform bill that gets to the desk of the new Prez.  But now hearing GOP's VP candidate Pence talking up the "need" to adopt criminal justice reform "nationally" has me now distinctly (and foolishly?) optimistic that some kind of statutory reforms will be signed into law sometime during the next Congress.

For more background on what both leading VP candidates have said and done on the criminal justice reform front, I recommend this new Huffington Post article headlined "Here’s How Tim Kaine And Mike Pence Measure Up On Criminal Justice: The two vice presidential candidates have pushed for similar criminal justice policies at times." 

October 5, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0)

Making an election-season case to end felon disenfranchisement

Today's New York Times has this timely editorial headlined "The Movement to End Racist Voting Laws." Here are excerpts:

This year, state laws will bar nearly six million Americans with criminal convictions from voting in the presidential election. About 4.4 million of those are people who are not in prison but are still denied the right to vote.  While felon disenfranchisement laws have a history in many parts of the country, the harshest are found in the South, where they were central to the architecture of Jim Crow.

These laws date to the late 19th and early 20th centuries, when states in the former Confederacy — from Texas to Florida — set out to reverse the effects of the 15th Amendment, which guaranteed African-Americans the right to vote.  Felony voting restrictions formed the foundation of this effort, but the Southern states quickly reinforced barriers to voting with poll taxes, literacy tests, white-only primaries, registration restrictions, and exemptions for whites from measures created to keep blacks from voting.

Poll taxes and literacy tests were swept away after the Voting Rights Act of 1965.  But disenfranchisement of people with criminal records remained, and it is just beginning to attract the attention it deserves.  Last week, for example, Gov. Jerry Brown of California signed a bill granting voting rights to people convicted of felonies who are being held in county-run jails.  In Virginia, Gov. Terry McAuliffe is battling with the legislature over his plan for restoring the voting rights of tens of thousands of former inmates.

Also last week, black citizens who were denied the vote in Alabama brought a federal lawsuit challenging the state’s disenfranchisement statute, a move that has started a broader discussion about the racist origins of such laws and their devastating effect on African-American communities.  In 1901, Alabama’s constitutional convention — convened for the purpose of establishing “white supremacy in this state” and staving off the “menace of Negro domination” at the ballot box — expanded an existing disenfranchisement law to include any offense “involving moral turpitude.”  Among the disqualifying offenses were vagrancy, adultery and wife beating, which were more likely to be prosecuted against blacks....

That many states continue to view people who have served time in prison as unfit to vote is a stain on the idea of democracy.  The Alabama law and its history display this shameful truth.

October 5, 2016 in Collateral consequences, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

Tuesday, October 4, 2016

Racial issues in death sentencing (and insider trading and malicious prosecution) next up for SCOTUS oral argument

As I noted in this recent post, the Supreme Court is back in action with a new fall season chock full of cases involving criminal justice issues.  Today's first official day of oral argument, as noted here, involved case on how to interpret the federal bank-fraud statute and on how to apply the Double Jeopardy Clause.  And the SCOTUS action gets extra exciting for sentencing fans with the first big capital case of the season, Buck v. Davis, to be heard on Wednesday.  Here are excerpts from Amy Howe's lengthy overview of the case at SCOTUSblog, "Argument preview: Justices to consider role of racial bias in death penalty case":

Even Duane Buck’s attorneys describe the facts of his crime as “horrific.” Buck believed that his former girlfriend, Debra Gardner, was in a romantic relationship with another man, Kenneth Butler. On July 30, 1995, he went to Gardner’s Houston home, where he shot and killed both Gardner and Butler. Buck also shot his step-sister, Phyllis Taylor, in the chest at point-blank range; the bullet missed her heart by only an inch, but she survived.

A Texas trial court appointed two lawyers to represent Buck at his trial.  One of those lawyers, Jerry Guerinot, has been described as the worst capital defense lawyer in the country: Twenty of his clients have been sentenced to death. When the Supreme Court hears oral arguments in Buck’s case next week, the decision by those attorneys to present racially inflammatory testimony by a defense expert will be at the heart of the debate.

A key issue at Buck’s trial was whether he would be dangerous in the future: Unless the jury unanimously concluded that he would be, it could not sentence him to death under Texas law. One of Buck’s former girlfriends, Vivian Jackson, testified that he had repeatedly abused her, but that fear had kept her from going to the police. However, Buck did not have any convictions for violent crimes, and a psychologist testified that he was unlikely to be dangerous in the future.

Buck’s lawyers also retained another psychologist, Dr. Walter Quijano. Quijano provided the defense team with a report in which he indicated that, as a statistical matter, Buck was more likely to commit violent crimes in the future because he is black. That report was admitted into evidence, at the request of Buck’s lawyers. After two days of deliberations, the jury concluded that Buck was indeed likely to be dangerous in the future and sentenced him to death....

There are several points of contention in the Supreme Court. The first is the merits of Buck’s argument that his trial counsel violated his constitutional right to an effective attorney when he introduced Quijano’s opinion.

Buck emphasizes that Quijano’s “testimony was so directly contrary to Mr. Buck’s interests, no competent defense attorney would have introduced it.” And the introduction of that evidence, he contends, likely “tipped the balance in the prosecution’s favor”: Although the key question before the jury was whether Buck was likely to be dangerous in the future, prosecutors failed to provide any evidence that Buck “had been violent outside the context of romantic relationships with two women, and the jurors learned that he had adjusted well to prison.” Moreover, he notes, the jury apparently “struggled to determine the appropriate sentence” for Buck, which suggests that, if Quijano’s testimony had not been admitted, at least one juror — all that would be necessary — might have voted against a death sentence.

The state concedes both that “race is an arbitrary, emotionally charged factor that has nothing to do with individual moral culpability” and that the introduction of Quijano’s opinion “was at least debatably deficient performance” by Buck’s trial lawyers.  But, the state contends, Buck had failed to show that the jury might have reached a different decision if the opinion had not been introduced, because there was plenty of evidence that Buck was likely to be dangerous in the future.  The state further downplays the significance of Quijano’s opinion that Buck was statistically more likely to be dangerous in the future because he is black, asserting that it “played only a limited role at trial,” particularly when the psychologist’s “ultimate conclusion” was that Buck “would likely not be a future danger.”

The other issues before the Court are more technical, but no less important: whether Buck’s case presents the kind of extraordinary circumstances that would justify relief under Rule 60(b)(6) and whether the lower courts made a mistake when they rejected his application for a certificate of appealability....

In many of the court’s recent death penalty cases, the justices have been deeply divided. Two justices — Stephen Breyer and Ruth Bader Ginsburg — have even suggested that the court should consider whether the death penalty is constitutional at all. That question is not before the court in Buck’s case, but ... oral arguments could nonetheless elicit strong opinions on the administration of death penalty from the eight-member court.

Though the Buck case is likely to garner the most media attention, there are other big legal and practical issues before Justices in two other criminal cases tomorrow.  Again, SCOTUSblog provides helpful resources for these cases:

Salman v. United States

Argument preview: Justices to consider what constitutes a “personal benefit” in insider trading

Manuel v. City of Joliet

Argument preview: Does the Fourth Amendment govern a “malicious prosecution” claim, and if so, how?

October 4, 2016 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (29)

On eve of VP debate, a deep dive into "Tim Kaine’s Long, Conflicted History With The Death Penalty"

Tim_Kaine,_official_113th_Congress_photo_portraitBuzzFeed News reporter Chris Geidner (who just happens to be one of my favorite former students) did some important yeoman's work recently by looking closely at Democratic VP candidate's long professional engagement with capital punishment. The subheadline of BuzzFeed's lengthy report highlights its themes: "As a lawyer, the Democratic vice presidential nominee took cases defending death-row inmates, arguing that parts of Virginia’s death penalty process made the system 'shockingly unequal.' When he was governor, however, he allowed executions to proceed, even when some of those issues were raised again." I recommend the piece in full, and here is how it gets started:

In 2005, Tim Kaine faced a tight race for governor. He was running against Jerry Kilgore, then the state’s attorney general, and Kilgore was hitting him hard on the death penalty.

Two decades earlier, Kaine had arrived in Virginia a new lawyer who immediately called up the ACLU and asked how he could help. When he was asked to take over a death penalty appeal, he initially turned it down — but then changed his mind, believing that he had to put his principles to work. “The essence of human life is probably suffering and pain,” he would tell the Richmond Times-Dispatch, discussing the death penalty and his Catholicism. “The thing that redeems that is the presence of God in every person.”

Kaine took on representation of Richard Whitley — sentenced to death for a brutal murder in 1980 — and spent more than two years trying, ultimately unsuccessfully, to stop his execution. For Kaine, it wasn’t just about making sure an adversarial system worked properly — he called the death penalty in America “outrageous” in the extensive interview with the Times-Dispatch. Whitley was just the first of a handful of death row inmates that Kaine would try to keep from execution over the course of 15 years, working on behalf of the kind of convicted murderers whose stories do not make for sympathetic coverage.

And, in 2005, Kilgore reminded voters of just that. His campaign produced television ads that featured the family members of people killed in Virginia. In one, the wife of a police officer killed by “a drug dealer illegally in this country” who was on death row, expressed a concern that Kaine would put in place a death penalty moratorium. In another, the father of the man killed by one of the death row inmates who Kaine had represented said that Kaine’s death penalty opposition was so extreme that the would-be governor wouldn’t support the death penalty for Adolf Hitler.

Kaine had made a decision early on in his campaign that the response would be to reiterate his personal opposition to the death penalty, to explain that the position was informed by his Catholic faith, and then to say that he would follow the law and enforce the death penalty as governor. When the attack ads ran, the response ad had already been prepared. The attack didn’t appear to do any damage in the long run, and it may even have turned some voters against Kilgore because the ads were seen as unfair — or even as attacking Kaine’s faith. Kaine ultimately won the race on Election Day, 52%-46%, and took office on Jan. 14, 2006.

Less than three months later, Kaine would be faced with the convergence of two threads in his life — his work as a capital defense lawyer and his promise to enforce the death penalty — when he received a petition seeking executive clemency for Dexter Lee Vinson on April 13, 2006. Vinson was scheduled to be executed two weeks later, and his lawyers, including those from the Virginia Capital Representation Resource Center, held out hope that the new governor would take action to halt the scheduled execution.

In the clemency petition, obtained by BuzzFeed News, the lawyers wrote, “If this execution is carried out as scheduled, troubling questions about whether Vinson is innocent of the crimes for which he will be put to death will remain unresolved.” Specifically, the lawyers wrote, “The unique combination of newly discovered evidence, undeveloped evidence, and singular circumstances of Vinson’s case rattle the confidence the Commonwealth must have before taking an irremediable action like execution.”

Kaine denied clemency to Vinson and his execution took place on April 27, 2006, the first of 11 executions that took place under Kaine’s governorship. In that time, Kaine only commuted one death sentence, that of Percy Walton, who faced the death penalty for three murders. In 2008, Kaine concluded Walton was not mentally competent to face execution and commuted his sentence to life in prison.

“What I told Virginians was, ‘I’m against the death penalty, but I’ll uphold the law,’ and I did that,” Kaine said this June in a C-SPAN interview about his life and career. Of considering, and ultimately rejecting, most of the clemency petitions that came before him, he said, “Very, very difficult — the hardest thing in public life I’ve had to do was that. … I grappled with the cases, but only gave relief to people who I felt had made a case that they were entitled to clemency.”

Over the course of the past three decades, Tim Kaine’s experience with the death penalty is far more complex and nuanced than that of any other major party candidate for the presidency or vice presidency in the modern era of the death penalty. Kaine has represented multiple people on death row, seeking to highlight what he has described as a “shockingly unequal” system, and he also has governed one of the few states that has continued to carry out executions regularly over the past decade.

The questions Kaine raised as a defense lawyer were mostly related to process — from the time given for federal court review of cases and the rules that Virginia state courts had for review of capital cases to the quality of the lawyers provided to criminal defendants in those cases and the way those lawyers carried out that defense — but that process, as Kaine said at the time, is sometimes the difference between life and death.  “If you had enough money to pay” for a top-tier criminal defense attorney at trial, he said at the time of Whitley’s execution, “you’re not going to get the death penalty.”

And yet, a decade later, in his four years as governor, Kaine found himself in the position of denying clemency requests in cases where those and other similar issues were being raised by people facing execution under his watch.

October 4, 2016 in Campaign 2016 and sentencing issues, Clemency and Pardons, Death Penalty Reforms, Who Sentences? | Permalink | Comments (2)

"The Original Meaning of 'Cruel'"

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

This Article demonstrates that the word “cruel” in the Cruel and Unusual Punishments Clause means “unjustly harsh,” not “motivated by cruel intent.”  The word refers to the effect of the punishment, not the intent of the punisher.  In prior articles, I have shown that the word “unusual” means “contrary to long usage,” and thus a punishment is cruel and unusual if its effects are unjustly harsh in light of longstanding prior practice.

This Article solves several important problems plaguing the Supreme Court’s Eighth Amendment jurisprudence.  First, it clarifies the Eighth Amendment’s intent requirement.  To violate the Cruel and Unusual Punishments Clause, some government official must possess intent to punish but not necessarily intent to punish cruelly. Second, it demonstrates how to determine whether a given punishment is so harsh that it violates the Eighth Amendment.  The question is not whether a punishment is unjustly harsh in the abstract but whether it is unjustly harsh in comparison to the traditional punishment practices it has replaced.  Third, it shows how to sort between those unintended effects of punishment that may properly be considered part of the punishment and those that may not.  If a given punishment heightens the risk of severe, unjustified harm significantly beyond the baseline risk established by longstanding prior practice, it is cruel and unusual.  

Finally, this Article establishes that the core purpose of the Cruel and Unusual Punishments Clause is to prevent unjust suffering, not the coarsening of public sensibilities.  Historically, governmental efforts to protect public sensibilities by making punishment less transparent have increased the risk that the offender will experience undetected cruel suffering.  When the government undertakes such efforts, it should bear the burden to show that they do not significantly increase this risk.

The original meaning of the Cruel and Unusual Punishments Clause calls into question the constitutionality of several current punishment practices, including lengthy prison sentences for certain offenses, long-term solitary confinement, the three-drug lethal injection protocol, and certain prison conditions, to name a few.

October 4, 2016 in Recommended reading, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Monday, October 3, 2016

Interesting look at gender dynamics in sex offender prosecutions in North Dakota

This local article from North Dakota, which is headlined "Investigators say all sex offenders treated the same, but some studies find female criminals face lighter sentences," take a close look at the interest intersection of sex offenses and gender. Here is how the article starts:

Last month, a young Bottineau teacher was sentenced to serve about a month and a half in jail, pay $325 in court fees and undergo treatment after admitting to having sexual relations with at least two teenage boys. Marissa Ashley Deslauriers, born in 1991, pleaded guilty in Bottineau County District Court to two Class A misdemeanor charges of contributing to deprivation of a minor and two Class B misdemeanors of sexual assault.
Originally, she faced felony charges that could have resulted in 15 years in prison and $30,000 in fines, but Deslauriers reached a plea deal with prosecutors that resulted in lesser charges and two years of unsupervised probation. She was not required to register as a sex offender.  The case sparked discussion about the way the legal system treats men and women who are convicted of sexual crimes, and if gender has an influence in sentencing.
There are 1,754 registered sex offenders in North Dakota, public records show.  Twenty-seven of them are women.  A wide range of research supports the theory that men are overwhelmingly more likely to commit sexual assault than women, but research on the differences in the way male and female offenders are treated in the justice system are hard to find.
Dr. Adam Matz, assistant professor of criminal justice at the University of North Dakota, said women, overall, tend to receive lighter sentences than men for similar offenses. Much of this is due to perceptions of women as primary caretakers for children.  Matz said the age of the victim and the age of the offender are both taken into consideration with sexual crimes.
"In general, the severity of the case and the person's criminal history are probably the two biggest things in terms of sentencing decisions," Matz said. "And in general sentencing research, you do see the same trend where women tend to get more lenient sentences or are more likely to receive probation."  Matz, who specializes in parole and probation, said he would not downplay probation and its impact on people's lives.
Those with little criminal history are more likely to serve lighter sentences. "Typically with females, particularly with teachers, a lot of times these are first-time offenders. They don't have a criminal history; that's another reason why there might be a disparity there," Matz said.
A study published in 2012 by a doctoral student at Arizona State University found noticeable discrepancies in the sentencing for male and female teachers convicted of having sexual relationships with students older than 15.  The study noted many teachers were first-time offenders, which also can lead to lighter sentencing.

October 3, 2016 in Offender Characteristics, Race, Class, and Gender, Sex Offender Sentencing | Permalink | Comments (6)

Ohio planning to use new three-drug execution protocol to get its machinery of death operative in January 2017

Long-time readers and/or hard-core death penalty fans perhaps recall that my own great state of Ohio way back in Fall 2009, in the wake of some problems administering the then-universal three-drug lethal injection approach, pioneered a new one-drug execution protocol.  This one-drug approach to executions seemed to work reasonably well for the Buckeye state for a period, as the state completed 19 executions in the period from 2010 to 2013.  But when Ohio struggled to get the needed supply of the drug being used in its one-drug protocol, the state in January 2014 tried a two-drug approach that did not seem to work our so well (as reported in this prior post).

Since January 2014, Ohio has been a de facto death penalty moratorium state because Ohio Gov John Kasich repeatedly delayed a long list of scheduled executions while the state sought to figure out how best to acquire drugs for conducting lethal injections.  (During this period, the Ohio legislature enacted a law to shield the identity of some who helped the state move forward with executions (background here), and some advocates started calling for the state to consider nitrogen gas as an alternative way to carry out death sentences (details here).  But today, as this new AP article reports, Ohio has now revealed that it is planning to get its machinery of death up-and-running again come January 2017 by returning to a (new kind of) three-drug execution protocol.  Here are the details and context:

Ohio plans to resume executions in January with a new three-drug combination after an unofficial three-year moratorium blamed on shortages of lethal drugs, an attorney representing the state told a federal judge Monday.

Thomas Madden with the Ohio attorney general's office said the state will use the drugs midazolam, which puts the inmate to sleep; rocuronium bromide, which paralyzes the inmate; and potassium chloride, which stops the heart. He said the drugs are not compounded and are FDA approved. Madden told Columbus federal Judge Edmund Sargus that a new execution policy will be announced at the end of the week....

The development opens the way for the execution of Ronald Phillips for the rape and murder of his girlfriend's 3-year-old daughter in Akron in 1993. Ohio hasn't put anyone to death since January 2014, when Dennis McGuire repeatedly gasped and snorted during a 26-minute procedure using a never-before-tried two-drug combo.

The state also used midazolam in McGuire's execution, making it disappointing that Ohio would again turn to that drug, said Allen Bohnert, a federal public defender representing several death row inmates.

The state has more than two dozen inmates with firm execution dates sitting on death row, with executions scheduled out as far as October 2019.

After McGuire's execution, the longest ever in Ohio using lethal drugs, the prisons agency changed its policies to allow for single doses of two alternative drugs. Complicating matters, neither of those drugs — sodium thiopental and pentobarbital — is available in the United States after their manufacturers put them off-limits for executions. The state has unsuccessfully tried to find compounded or specially mixed versions.

Last year, Republican Gov. John Kasich ruled out looking for alternative methods, such as the firing squad or hanging. In 2014, Kasich signed a bill into law shielding the names of companies that provide the state with lethal injection drugs.

Supporters said such confidentiality is necessary to obtain supplies of the drugs, and the measure is needed to restart Ohio executions. Opponents said it was naive to think the bill could truly protect companies' names from being revealed.

In 2014, former federal Judge Gregory Frost sided with the state, saying the prisons agency's need to obtain the drugs outweighed concerns by death row inmates that the information was needed to meaningfully challenge the source of the drugs.

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

Previewing the (very criminal) start of the new SCOTUS Term

As this October Term 2016 merits case list via SCOTUSblog highlights, six of the first seven cases that the Supreme Court has scheduled for oral argument to kick off its new season involve criminal justice issues.  And, with thanks again to the extraordinary work that SCOTUSblog always does to make it so much easier to keep up with all the Supreme Court action, here are links to case pages, issues and previews of the first two of the cases, which are to be heard on Tuesday:

Shaw v. United States: 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.

Argument preview: Court to consider scope of federal bank-fraud statute


Bravo-Fernandez v. United States: Whether, under Ashe v. Swenson and Yeager v. United States, a vacated, unconstitutional conviction can cancel out the preclusive effect of an acquittal under the collateral estoppel prong of the Double Jeopardy Clause.

Argument preview: Double jeopardy opens the Term

And for those looking for more of an overview perspective on what the Justices might be doing in the criminal justice arena this Term, Andrew Cohen has this useful commentary over at the Brennan Center headlined "A Hindered Court Will Tweak Criminal Law."

October 3, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

"Dignity and the Death Penalty in the US Supreme Court"

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

The US Supreme Court has repeatedly invoked the idea of dignity in its Eighth Amendment jurisprudence, particularly in cases involving capital punishment.  However, it has never articulated a clear and consistent conception of dignity.  The first half of this paper examines the Court's inconsistent use, and highlights how various justices have used different conceptions of human dignity, communitarian dignity, and institutional dignity to uphold the constitutionality of capital punishment.  This stands in contrast to how foreign and international authorities have used the idea of dignity to advance abolition.

The second half of this paper uses the Supreme Court's own accounts of dignity, and philosophical approaches to dignity, to argue that respect for dignity must pull towards a finding that the death penalty is unconstitutional.  Respect for dignity, it is argued, requires a consideration of how human, communitarian, and institutional dignity inter-relate and inform one another.  For example, it makes little sense to examine the death penalty and the dignity of the legal system without considering the human dignity of the people involved in administering capital punishment.  When these three dignities are considered together, it becomes clear that the death penalty cannot comport with respect for dignity, as required by the Eighth Amendment.

October 3, 2016 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

Prez Candidate Clinton promises “end to end reform in our criminal justice system — not half-measures, but full measures"

This new Politico article reports on the latest criminal justice reform promise by a vote-seeking politician under this full headline: "Clinton promises 'end to end' criminal justice reform in pitch to black voters: Visiting Charlotte less than two weeks after a controversial police shooting, the Democrat makes makes an appeal to the voters she needs to beat Donald Trump in North Carolina."  Here are excerpts from the piece:

In a humble church with a familiar name, Little Rock A.M.E. Zion, Hillary Clinton on Sunday made a passionate case for police reform and a direct appeal to the city's black voters, whose support she needs to win this swing state.

Less than two weeks after the death of Keith Lamont Scott, a black man killed by police, Clinton arrived here Sunday morning with a message of sympathy for a grieving community and political promises, including “end to end reform in our criminal justice system — not half-measures, but full measures.”

She acknowledged that when it comes to understanding the plight of black families in America, she will never be able to replicate the symbolic empathy of President Barack Obama. “I’m a grandmother, but my worries are not the same as black grandmothers who have different and deeper fears about the world that their grandchildren face,” Clinton said. “I wouldn’t be able to stand it if my grandchildren had to be scared and worried, the way too many children across our country feel right now."

Clinton’s visit to Charlotte was critical — she was so eager to visit that the campaign announced a trip last Sunday, when the city was still grappling with violent protests and looting. The trip was ultimately delayed by a week at the request of local lawmakers.  On Sunday, she was accompanied by her senior policy adviser Maya Harris, longtime aide Capricia Marshall and senior staffer Marlon Marshall, who is overseeing the campaign’s African-American outreach.

Clinton’s challenge in North Carolina, where current polls put her trailing Donald Trump by about 3 points, is boosting the African-American vote that landed Obama a victory in 2008, when he won a state that had gone to the Republican nominee in the previous seven presidential election cycles.  The key was Mecklenburg County, which includes the city of Charlotte, where Obama beat John McCain by more than 100,000 votes....

Clinton has spoken out on criminal justice reform and "systematic racism" consistently since she launched her campaign. But she is still struggling to inspire young black voters, who remain resistant to her message of reform and lack institutional loyalty to the Democratic Party....

In her remarks, Clinton was careful to couch her call for reforms with support for law and order. “We must not forget that violence has touched the lives of police officers,” she said.  “From Dallas to Baton Rouge to Philadelphia, the families of fallen officers have been dealt a great blow.”  But the focus of her address was to the hurting black community.  “We need to fix a system where too many black parents are taken from their kids and imprisoned for minor offenses,” she said.

October 3, 2016 in Campaign 2016 and sentencing issues, Race, Class, and Gender, Who Sentences? | Permalink | Comments (3)

Happy SCOTUS new year/Term ... which has already gotten started with more Johnson fall-out

Today is the always exciting first Monday in October, the traditional first day of a new Supreme Court Term.  But because today is also Rosh Hoshanah, the Justices are not hearing the first oral argument of the Term until tomorrow. (I suspect Justices Breyer, Ginsburg and Kagan are going to be partying like it is 5777, which is the year starting today.)

But, while I was spending all my extra time Friday focused on my favorite sporting event, the Supreme Court sort-of got off to a running start for the new Term by announcing Friday afternoon that the were going to review on the merits eight new cases. This SCOTUSblog posting provides details on all these new cases, and this pair should be of particular interest to criminal justice fans:

In Lynch v. Dimaya, the justices will consider whether, for purposes of federal immigration law, the general definition of a “crime of violence” is so vague that it is unconstitutional. In 2015, the court ruled in Johnson v. United States that the so-called “residual clause” in the Armed Career Criminal Act’s definition of “violent felony” was unconstitutionally vague. Relying on that decision, the 9th Circuit ruled that the definition of “crime of violence” suffers from the same problem as the ACCA’s residual clause, and the federal government asked the court to decide the issue. The government emphasized (among other things) that the text of the definition is quite different from that of the ACCA’s residual clause – as evidenced by the fact that it “has not generated the widespread confusion and interpretive failures that led this Court to invalidate the ACCA’s residual clause.”

Nelson v. Colorado is the case of two Colorado residents who were convicted and sent to prison; they were also ordered to pay restitution and a variety of fees. After their convictions were reversed on appeal, they unsuccessfully sought a refund of the money they had paid. The question before the court is the constitutionality of the state’s requirement that defendants whose convictions are reversed can obtain a refund only if they show, by clear and convincing evidence, that they are innocent. The former inmates argue that Colorado “appears to be the only state” that imposes such a requirement, and they add that the state has “no legitimate interest to keep money that rightly belongs to people whose convictions have been reversed.”

October 3, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Sunday, October 2, 2016

Untroubled by SCOTUS Hurst ruling, unanimous Alabama Supreme Court upholds state's capital punishment procedures

6a00d83451574769e201bb08b85699970d-320wiAs reported in this local article, headlined "Supreme Court of Alabama has unanimously upheld the state's capital murder sentencing scheme," a top state court has concluded that its capital punishment law is not to be consumed by the post-Hurst hydra.  "post-Hurst hydra"  (As regularly readers may recall, in this post not long after the Supreme Court in Hurst declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term "post-Hurst hydra" to describe what I expected to become multi-headed, snake-like capital litigation as judges tried to make sense of what Hurst must mean for past, present and future cases.)  Here are the basics and the context for this significant ruling:

The Supreme Court of Alabama has unanimously upheld the state's capital murder sentencing scheme, which signifies Alabama as the last state in the country that allows for this type of scheme.  The ruling allows for judicial override, which means a judge can impose the death penalty even after a jury has recommended a lesser sentence.

This happened in Montgomery county in 2008, when Circuit Judge Truman Hobbs overrode a jury’s decision to sentence Mario Woodward to life in prison without the possibility of parole for killing Montgomery police officer Keith Houts.  After finding him guilty, the jury recommended life in prison without parole, “But Hobbs said the 34-year-old should die for killing Houts in September 2006,” the Advertiser reported at the time of the sentencing.

In March, Jefferson County Circuit Judge Tracie Todd ruled that the judicial override sentencing scheme was unconstitutional in light of Hurst v. Florida — a January U.S. Supreme Court decision stating that Florida’s sentencing scheme, which also incorporated a judicial override system, was unconstitutional.  Florida’s scheme left it to the judge to find the aggravating factors, not the jury.

The case that sparked Alabama's judicial override appellate process stems from a case involving four men who were charged with three capital murders.  Defense attorneys argued the men should be barred from receiving the death penalty based on that the Supreme Court of the United States' decision.

Todd ruled in their favor, which barred prosecutors from seeking the death penalty.  In her 28-page ruling, Todd called the judicial override practice a “life-to-death override epidemic” and questioned Alabama’s partisan judicial elections. “There is a time and place for diplomacy and subtlety,” Todd wrote. “That time and place has been expunged by the dire state of the justice system in Alabama.  It is clear, from here on the front line, that Alabama’s judiciary has unequivocally been hijacked by partisan interests and unlawful legislative neglect.”

Alabama Attorney General Luther Strange asked the Alabama Court of Criminal Appeals to vacate Todd’s order shortly after it was issued.  In June the Alabama Court of Criminal Appeals vacated her decision, stating that Alabama’s scheme differs from Florida’s because in Alabama the jury determines the aggravating factors before deciding the sentence.

Jerry Bohannon, one of the defendants challenging Alabama's sentencing scheme, subsequently petitioned for a writ of certiorari.  Upon review, Alabama Supreme Court Justices echoed points made by the Court of Criminal Appeals. "Because in Alabama a jury, not the judge, determines by a unanimous verdict the critical finding that an aggravating circumstance exists beyond a reasonable doubt to make a defendant death-eligible, Alabama's capital-sentencing scheme does not violate the Sixth Amendment," wrote acting Chief Justice Lyn Stuart....

Strange praised the court’s decision, stating “Today’s ruling is an important victory for victims and for criminal justice.  The Hurst ruling has no bearing whatsoever on the constitutionality of Alabama’s death penalty, which has been upheld numerous times.”  Since Hurst, The United States Supreme Court has told the Alabama Court of Criminal Appeals to reconsider appeals filed on behalf of at least three Alabama death row inmates.

The full opinion from the Alabama Supreme Court is available at this link. I would call it a near certainty that some Alabama death row defendants will continue to seek certiorari review based on Hurst, and I suspect SCOTUS review will eventually be more a question of when rather than whether.

October 2, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Sunday election season democracy/freedom fun: guess the political speaker, the party and the context for a potent quotable about "the degenerate vote"

I love reading books about American political and social history, especially in the midst of of an yet another overwrought election season, and the one I am reading now had this remarkable quote that I just could not resist sharing as early voting begins in many jurisdictions for just the very latest and greatest "most important election of our lifetime."   When thinking about how best to share this quote, I figured it might be fun on this Sunday to encourage readers to try to guess who said the following, representing what party, and in what context.  The source of the quote will appear after the break, but here is first the potent quote:

"It is the degenerate vote that has in the past overwhelmed the liberties of free people.  And it is the degenerate vote in our big cities that is a menace to our institutions." 

This quote's repeated reference to the "degenerate vote" especially struck a chord with me in the wake of Hillary Clinton's infamous recent statement about half of Donald Trump's supporters being a "basket of deplorables."

But I also could not help but think about the on-going fight in Virginia over trying to have former felons enfranchised or national fights over voting rights to reflect another set of view on the potential harms of "the degenerate vote."

And, for a real hint about the context for the quote, readers might also consider my own research interests in how marijuana reform initiatives might be helping to turn out certain voters.

So, dear readers, before clicking through, perhaps comment on or at least think about who you think might be the political speaker, the party and the context for this potent quotable concerning "the degenerate vote."


Continue reading "Sunday election season democracy/freedom fun: guess the political speaker, the party and the context for a potent quotable about "the degenerate vote" "

October 2, 2016 in Campaign 2016 and sentencing issues, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (7)

Friday, September 30, 2016

Why blogging is likely going to lighter in the next few days (and an inquiry for commentors)

My all-time favorite bi-annual sporting event has gotten started this morning, and I hope and expect to be spending much of next few days watching the action and/or refreshing this official scoring webpage.  Here is an image that will reveal my strong rooting interests:


Though it would be a real stretch to try to assert that there is some kind sentencing significance to this sporting event, I do think this post provides a useful opportunity to inquire of commentors concerning an assertion made deep into the comments of this post from earlier this month.  Specifically, an assertion was made that this blog's "comment crew ... is 95% people who hate Amerikkka."

I expect that people who in fact "hate Amerikkka" would be be rooting hard against the USA and may be quite eager to report (perhaps in the comments to this post) that they are hoping the USA team loses this event and other contests that pit Americans wearing our flag against contestants representing other nations.  So, if you consider yourself a member of this blog's "comment crew," I am genuinely interested to hear which team you may be pulling for in this competition.

September 30, 2016 in On blogging, Sports | Permalink | Comments (13)

Could major federal statutory sentencing reform happen ASAP if Democrats take back Senate this election cycle?

The question in the title of this post is prompted by this notable new Politico article headlined "Ryan, McConnell split on prospects of criminal justice reform." Here are excerpts (with one line emphasized with my comments to follow):

House Speaker Paul Ryan and Senate Majority Leader Mitch McConnell were on opposite pages Thursday on the prospects of passing criminal justice reform — another hurdle facing proponents hoping to get a bill to the president’s desk this fall.

Speaking at a news conference, Ryan (R-Wis.) doubled down on his commitment to advance legislation to reduce nonviolent drug sentencing requirements once lawmakers return to Washington in November.  The issue is a top priority for Ryan personally — though his House GOP conference is lukewarm at best, with some members concerned about looking soft on crime.  “I think it’s good legislation, I think the time has come, and we’re going to advance this issue as far as we can,” Ryan said.

Just a few minutes before that on the other side of the Capitol, though, McConnell offered a much different take. “It’s very divisive in my conference,” the majority leader from Kentucky said. “I’ve got very, very smart capable people, without regard to ideology, who have very different views on that issue. Whether we can take something up that controversial in that limited amount of time available, I doubt.”

Criminal justice reform has pitted big-name conservatives like the Koch brothers who back the idea against law-and-order Republicans like Sens. Tom Cotton of Arkansas and Jeff Sessions of Alabama. It's unclear whether the political risk and calculation for Republicans will change after the election. Democrats broadly favor reform.

Ryan was bullish about getting it done. “We do know we have more work to do to talk to our members about the merits of criminal justice reform,” he said. “It’s very bipartisan and it's conservatives leading the charge on this: [Rep.] Raúl Labrador, [Sen.] Mike Lee, [Rep.] Bob Goodlatte. But there are a lot of our members who haven’t looked into the issue enough, and it’s those undecided members who have not formed opinions yet that we’re going to be communicating with in the weeks ahead.”

As indicated by the question in the title of this post and the sentence emphasized, I think the "political risk and calculation for Republicans will change" dramatically if (and only if) Democrats succeed in their effort to take back control of the US Senate. Specifically, and especially because House Speaker Paul Ryan continues to press his support for reform, I think Republicans in both the House and the Senate will come to see that their best chance to get a sentencing reform bill completed with only the terms GOP advocates most fully support will be in the lame duck session before Senate leadership transitions in 2017. (Indeed, if Dems win both the White House and take back the Senate in November, I think some current Dem supports of current bills might become the ones to resist lame-duck passage in the hope of developing and passing even more progressive reform in the next Congress.)

In other words, for those most deeply concerned and interested in seeking federal statutory sentencing reform, the outcome of Senate elections may be nearly as important or even more important than the Prez election.

September 30, 2016 in Campaign 2016 and sentencing issues, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (7)

Pew survey indicates "Support for death penalty lowest in more than four decades"

FT_16.09.29_deathpenaltyPartyThis new item from the Pew Research Center reports based on a new survey that "the share of Americans who support the death penalty for people convicted of murder is now at its lowest point in more than four decades."  Here is more:

Only about half of Americans (49%) now favor the death penalty for people convicted of murder, while 42% oppose it. Support has dropped 7 percentage points since March 2015, from 56%. Public support for capital punishment peaked in the mid-1990s, when eight-in-ten Americans (80% in 1994) favored the death penalty and fewer than two-in-ten were opposed (16%). Opposition to the death penalty is now the highest it has been since 1972.

Though support for the death penalty has declined across most groups, a Pew Research Center survey conducted Aug. 23-Sept. 2 among 1,201 adults finds that most Republicans continue to largely favor its use in cases of murder, while most Democrats oppose it. By more than two-to-one, more Republicans (72%) than Democrats (34%) currently favor the death penalty.

Two decades ago, when majorities in both parties favored the death penalty, the partisan gap was only 16 percentage points (87% of Republicans vs. 71% of Democrats). And, for the first time in decades, independents are as likely to oppose the use of the death penalty (45%) as they are to favor it (44%). The share of independents who support capital punishment has fallen 13 points since last year (from 57%)....

Even as support for the death penalty has declined across nearly all groups, demographic differences remain: Men are more likely to back the use of the death penalty than women, white Americans are more supportive than blacks and Hispanics, and attitudes on the issue also differ by age, education and along religious lines. More than half of men (55%) say they are in favor of the death penalty and 38% are opposed. Women’s views are more divided: 43% favor the death penalty, 45% oppose it.

A 57% majority of whites favor the death penalty for those convicted of murder (down from 63% last year). But blacks and Hispanics support it at much lower rates: Just 29% of blacks and 36% of Hispanics favor capital punishment.

There are only modest difference by age and education in support for the death penalty, with 18- to 29-year-olds somewhat less likely to support it (42% favor) than those in older age groups (51% of those 30 and older). Those without a college degree are more likely than those with at least a college degree to favor the use of the death penalty in cases of murder (51% vs. 43%).

White evangelical Protestants continue to back the use of the death penalty by a wide margin (69% favor, 26% oppose). White mainline Protestants also are substantially more likely to support (60%) than oppose (31%) the death penalty. But among Catholics and the religiously unaffiliated, opinion is more divided: 43% of Catholics favor capital punishment, while 46% oppose it. And while 50% of those who are religiously unaffiliated oppose the death penalty, 40% support it.

September 30, 2016 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Who Sentences? | Permalink | Comments (0)

Thursday, September 29, 2016

New HELP Act seemingly proposes death — and mandates LWOP — for spiked heroin dealing in every case in which "death or serious bodily injury results"

In this post yesterday I noted that Representative Tom Reed, who represents the 29th Congressional District of New York, last week introduced a bill (with four co-sponsors) that would respond to the current heroin epidemic by expanding the federal death penalty.  In that post, you can find Rep Reed's press release, headlined "Reed Stands with Victims: Offers Death Penalty Proposal for Heroin Dealers," explaining the background and reasons for his proposal.

This morning, I found that this page at providing more information about the Help Ensure Lives are Protected (HELP) Act now has this link to the (quite short) text of Rep Reed's bill.  Somewhat disconcertingly, but not really all that surprisingly, the bill is written in a way that seems to mandate federal life without parole (and permits the death penalty) in any and every case in which any user of spiked heroin suffers even serious bodily injury and even if the person distributing the heroin does not know or even have any reason to know the heroin is spiked or that it could seriously injure a user.  

In other words, as I read the key text of the proposed HELP Act, this bill calls for holding any and all heroin distributors strictly and severely criminally liable for any and all serious injuries or deaths that result from a user ingesting spiked heroin.  This is because the HELP Act simply amends the "Penalties" provision of the Controlled Substances Act by adding "if the mixture or substance [of more than 100 grams] containing a detectable amount of heroin also contains a detectable amount of [spiked substance like fentanyl], and if death or serious bodily injury results from the use of such substance, such person shall be sentenced to life imprisonment or death."

Of course, the Supreme Court long ago concluded that the Eighth Amendment precludes even felony murderers from be subject to the death penalty unless and until it can be shown they were at least extremely reckless in the causing of a death.  Thus, because of constitutional limits, there is little chance this bill if enacted would end up sending lots of drug dealers to federal death row.  But, the Eighth Amendment was interpretted in 1991 to permit Michigan to mandatorily impose LWOP on adults for just the possession of a significant quantity of drugs.  Thus, if the HELP Act were to become law, there is a real reason to expect that a huge numbers of persons involved in heroin distribution throughout the US could soon be facing mandatory life sentences if anyone who gets a spiked drug gets seriously injured.

Prior related posts:

September 29, 2016 in Death Penalty Reforms, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4)

Important review of the politics, power and personage surrounding US prosecutors

Infographic-1This lengthy new Fusion article, headlined "America's Prosecutor Problem: Prosecutors are more powerful than judges -- but the tough-on-crime stance they take to get elected multiplies racial injustices," brings an important empirical perspective to the story of American prosecutors and just who wields arguably the most power in modern criminal justice systems.  Here are excerpts:

Gordon Weekes describes a criminal case that landed on his desk this month in Fort Lauderdale, Florida: “An old lady comes out of her house and sees three or four kids in in her yard.”  She calls the police.  The kids scatter, but get caught. They’d climbed a fence to snag mangos from a tree.  One of the boys is charged with burglary.

“I suppose because he jumped the fence with an intent to take mangos, that it was a burglary,” muses Weekes, the chief assistant public defender in Broward County.  “But the kid is 13 years old -- and he didn’t even take a mango! The state attorney’s office is supposed to decide how to charge these cases. You would think they would go with the more appropriate charge, which is trespass. No -- they’re going with the more serious charge.”....

“Prosecutors have more power in this system than any judge, any supreme court, any police officer, or any attorney,” he says. They decide what charges to file -- “or more importantly, what charges not to file.”

Even as race and justice issues dominate national headlines, few media outlets have focused on the formidable power prosecutors wield. But they should.  Of the 2,437 elected prosecutors in America (at both the both federal and county levels), 79 percent were white men --- even though white men made up only 31 percent of the population, according to a 2014 report by the San Francisco-based nonprofit Women Donors Network.  That disparity, the report said, is a “structural flaw in the justice system” that has cascading effects -- like reducing accountability for police officers who shoot unarmed minorities.

As part of “Rigged,” our investigation into the dark side of modern-day electioneering, Fusion worked with Color of Change, another organization working on social justice issues, to collect and analyze data for every jurisdiction in America.

The results are stark: 93 percent of all prosecutors in the United States are white, though only 61 percent of the U.S. population is.  At the same time, there were 1,561,500 prisoners in state and federal prisons, according to the latest (2014) data from the Bureau of Justice Statistics, which noted that black men “were in state or federal facilities 3.8 to 10.5 times more often than white men.”  Fusion’s data supports what social justice activists have long maintained: At the local level, America’s justice system is disproportionately white-controlled, and disproportionately oriented toward punishing minorities.  There are no straightforward answers for how and why the disparity persists, but the data shows the disparity is real....

In many places in America, people of color represent a small share of the population, so it’s natural to assume that the overwhelming whiteness of US district attorneys is due to the whiteness of large swaths of the country. However, when Fusion analyzed the data, we found the imbalance persists even in communities of color:

  • In counties in the U.S. where people of color represent between 50% and 60% of the population, only 19% of prosecutors are prosecutors of color.
  • In counties where people of color represent between 80% and 90% percent of the population, only 53% of the prosecutors are prosecutors of color.
  • Only in places where 90% of the population are people of color does the prosecutor pool reflect the diversity of the community.
  • Overall, in the 276 counties in the U.S. where people of color represent the majority of the population, only 42%, or less than half, of the prosecutors in these counties are prosecutors of color.
  • Only in places where 90% of the population are people of color does the prosecutor pool reflect the diversity of the community....

Rashad Robinson, executive director of Color of Change, said that any prosecutor can be good or bad. The problem, he said, is that to get elected, they usually position themselves as “tough on crime” and make strong alliances with police. “They’re going into the job trying to get high conviction rates,” Robinson said. “They try to rack up as many convictions as possible, even though we a have mass incarceration problem.” What we really need, he says, is progressive prosecutors of any race who realize that “the prison-industrial complex has not made us safer.”

Indeed, Color of Change is tracking prosecutor elections and gathering data such as the number of times a prosecutor is elected, what party they represent, their race, gender, and whether they were appointed or ran unopposed. Of the 2,326 prosecutors elected to office as of 2016 and tracked by Color of Change, 72 percent -- 1,691 in all -- ran unopposed in their last election....

Many factors could contribute to the gap in the number of prosecutors of color who run for office. In the data that Color of Change collected, only 94 prosecutors of color were elected to office as of 2016. Of these, 60 ran unopposed in their last election, or 64 percent. Of the 2223 white prosecutors currently elected to office, 1627 or 73 percent ran unopposed. Although the percent of white incumbents who ran unopposed is slightly higher, there is not enough data to draw a conclusion primarily because there are so few prosecutors of color in office. Interestingly, three states (New Jersey, Connecticut and Alaska) appoint prosecutors. In these states, 32 percent of the prosecutors are people of color compared to just 4 percent of prosecutors who are elected. Color of Change hopes to track election outcomes over time in order to better understand what might be driving these differences.

After police arrest a person, the prosecutor and his/her staff of assistant attorneys make a host of decisions that can transform the life of the accused:

  • They can recommend whether the defendant should be released on bail, and can recommend a bail amount.
  • They can adjust the charges, making them more or less severe, felonies or misdemeanors.
  • They can decide whether a child is charged as a juvenile or an adult.
  • They can add or subtract counts.
  • They can also convene grand juries to determine which charges to pursue.
  • The prosecutor can also decide not to press charges at all.

“At any time, until a jury is sworn or a plea taken by the court, the state attorney can chose to drop the case,” said Gordon Weekes. “That is always their power, for many reasons: not enough evidence, it’s not in the interest of the public to go forward, there’s an alternative that better suited.”

Because laws outline recommended prison sentences, or even dictate mandatory minimum sentences for particular crimes, a prosecutor can have far more latitude over a defendant’s ultimate prison sentence than a judge, based solely on what charges are brought. For example, at the federal level, someone accused of a misdemeanor charge of possession of marijuana could be fined $1,000 and spend a year in jail. With felony charge of selling marijuana, the fine could be $250,000 and the sentence, five years in prison. Weekes notes that the stronger the threat of punishment, the more inclined a defendant might be to just plead guilty and end the case rather than incur lawyer fees and take up time as the case goes to trial.

In Broward County, Florida, the site of the mango crime, the state attorney is Michael Satz, who was elected to his role in 1976 and has won every election since. He is now 73 years old. On his website, Satz makes no secret of his mission. He brags that in 1992, he “achieved the highest total conviction rate for trials and guilty pleas in the state, a high standard his office works hard to maintain.”

Satz made his reputation for being tough on crime during the drug wars of the 1980s and 90s -- and, critics, say, that reputation was built the backs of minorities. “He’s sent thousands of people to prison on very, very minor drug offenses,” Weekes said. “There’s probably more drug crime occurring on college campuses, but no one is going to any college and kicking down the dorm room door to find a bong under the bed.

“He’s a very nice guy, but he’s lost in a different age and different time,” Weekes said of Satz. “Because he doesn’t have any true connection to people who are impoverished, who have had to struggle, he can’t relate to a lot of the people entering the criminal justice system. There is a lack of empathy that comes from that office -- and countless examples in the ways they choose to prosecute cases.”

September 29, 2016 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

Notable report on "California’s Historic Corrections Reforms"

The  Public Policy Institute of California (PPIC), a nonprofit nonpartisan think tank, has released this interesting new report titled simply "California’s Historic Corrections Reforms." This PPIC press release reviews the report's highlights: 

California has reduced the number of offenders incarcerated in the state without broadly increasing crime rates. But so far, the state’s historic reforms have not lowered California’s high recidivism rates or corrections spending. These are the key findings of a report released today by the Public Policy Institute of California (PPIC).

After a federal court ordered the state in 2009 to shrink the size of its prison population, California embarked on a path — unmatched by any other state — of reducing incarceration and reforming its corrections system.  October marks the five-year anniversary of public safety realignment, the major reform that shifted responsibility for lower-level felons from the state prison and parole systems to county jail and probation systems.  The passage of Proposition 47 in 2014 led to more changes.  The PPIC report, California’s Historic Corrections Reforms, assesses the impact of the reforms and their implications for the future in key areas:

  • Incarceration. After reaching a peak in 2006 of almost 256,000, the total number of inmates in state prisons and county jails declined by about 55,000. The incarceration rate fell from 702 to 515 per 100,000 residents — a level not seen since the early 1990s.  The prison population rapidly declined in the first year of realignment, when most lower-level felons with new convictions began serving their sentences in county jail or under probation supervision instead of in state prison. But the decline was about 10,000 inmates short of the court-mandated target of 137.5 percent of the prisons’ design capacity.

    Realignment also increased the statewide jail population by about 9,000 inmates in the first year, leading to early releases because of crowding.  It was not until voters passed Proposition 47 — which reduced penalties for some drug and property offenses — that the prison population fell below the court-ordered target and the jail population dropped to pre-realignment levels. Each of these reforms changed the composition of the jail population—and presented new challenges to the counties. A companion PPIC report, California’s County Jails in the Era of Reform, also released today, examines these changes.

  • Crime rates. Realignment resulted in an additional 18,000 offenders on the street, but through 2014 there is no evidence to suggest that it affected violent crime. Auto thefts did increase, by about 60 per 100,000 residents. In 2014, the most recent year with comprehensive data available, crime rates were at lows not seen since the 1960s. In 2015, violent crime rose by 8.4 percent and property crime by 6.6 percent, but data are not yet available to determine if these increases are part of a national trend or specific to California. The role of Proposition 47 on crime remains unknown, but compared to other states, California’s increase in property crime appears to stand out more than its increase in violent crime.

  • Recidivism.  Rearrest and reconviction rates for offenders released in the first year of realignment are similar to what they were before realignment: 69 percent of offenders released from state prison are rearrested within two years, and 42 percent are convicted again.  This reconviction rate — about 5 percentage points higher than before realignment — may simply reflect prosecution of offenses that in the past would have been processed administratively.  California did make one significant advance: realignment effectively reduced the costly practice of returning released offenders to prison for parole violations. As a result, two-year return-to-prison rates, which had been the highest in the nation, dropped from 55 percent to 16.5 percent.

  • Spending.  Despite a lower incarceration rate, the state’s General Fund spending on corrections in 2016–17 is $10.6 billion — 9 percent more than the $9.7 billion spent in 2010–11, the last year before realignment. The state also gives the counties $1.3 billion in realignment funds.  Since 2012, increases to the corrections budget have funded additional space to house prisoners, employee salaries and benefits, and bond repayment.  The state has also invested significantly to improve delivery of health care for inmates, though prisons continue to operate under a court-ordered medical receivership.  Regaining control of health care could help the state reduce costs. But to realize substantial savings, the state may need to reduce the prison population enough to close a state prison or reduce its use of private and out-of-state facilities to house prisoners.

Even with the significant decline in incarceration, California still houses about 200,000 inmates and spends at historically high levels on corrections, the report notes.

September 29, 2016 in National and State Crime Data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, September 28, 2016

Terrific NPR segment about prisoners on strike throughout the US

I was lucky enough to have my drive home tonight coincide with my local NPR station's broadcast of a lengthy segment concerning US prisons and on-going strikes in a number around the nation. Among the participants in the call-in show was Beth Schwartzapfel who has been following developments and writing about them here at The Marshall Project under the headline "A Primer on the Nationwide Prisoners’ Strike: Prisoners can be forced to work without pay — the Constitution says so."

The reason I consider the NPR piece a "must-listen" is in large part because of two current prisoners were somehow able to call into the show and talk about these issues from prison for an extended period. (The currently incarcerated begin speaking around the 14:25 mark until about the 39:40 mark.

Really worth taking the time to check out for those who care about prisons and prisoners in the United States.

September 28, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (3)

"The Case Against Prisons: Alternatives to imprisonment are working around the world — so why isn’t the United States on board?"

The title of this post is the headline of this lengthy new piece by Rebecca Gordon at The Nation (although the title is a bit misleading because the piece talks more about justice and punishment than about prisons). Here are excerpts:

This year, a brave New Jersey state senator, a Democrat, took on the pernicious problem of distracted walking. Faced with the fact that some people can’t tear themselves away from their smartphones long enough to get across a street in safety, Pamela Lampitt of Camden, New Jersey, proposed a law making it a crime to cross a street while texting. Violators would face a fine, and repeat violators up to 15 days in jail. Similar measures, says the Washington Post, have been proposed (though not passed) in Arkansas, Nevada, and New York. This May, a bill on the subject made it out of committee in Hawaii.

That’s right. In several states around the country, one response to people being struck by cars in intersections is to consider preemptively sending some of those prospective accident victims to jail. This would be funny, if it weren’t emblematic of something larger. We are living in a country where the solution to just about any social problem is to create a law against it, and then punish those who break it....

I’ve been teaching an ethics class at the University of San Francisco for years now, and at the start of every semester, I always ask my students this deceptively simple question: What’s your definition of justice?...

For most of my students – for most Americans in fact – justice means establishing the proper penalties for crimes committed. “Justice for me,” says one, “is defined by the punishment of wrongdoing.” Students may add that justice must be impartial, but their primary focus is always on retribution. “Justice,” as another put it, “is a rational judgment involving fairness in which the wrongdoer receives punishment deserving of his/her crime.”...

Often, when citing the sources of their beliefs about justice, students point to police procedurals like the now-elderly CSI and Law and Order franchises. These provide a sanitary model of justice, with generally tidy hour-long depictions of crime and punishment, of perps whose punishment is usually relatively swift and righteous.

Certainly, many of my students are aware that the U.S. criminal justice system falls far short of impartiality and fairness. Strangely, however, they seldom mention that this country has 2.2 million people in prison or jail; or that it imprisons the largest proportion of people in the world; or that, with 4% of the global population, it holds 22% of the world’s prisoners; or that these prisoners are disproportionately brown and black. Their concern is less about those who are in prison and perhaps shouldn’t be, than about those who are not in prison and ought to be.

They are (not unreasonably) offended when rich or otherwise privileged people avoid punishment for crimes that would send others to jail. At the height of the Great Recession, their focus was on the Wall Street bankers who escaped prosecution for their part in inflating the housing bubble that brought the global economy to its knees. This fall, for several of them, Exhibit A when it comes to justice denied is the case of former Stanford student Brock Turner, recently released after serving a mere three months for sexually assaulting an unconscious woman. They are (perhaps properly) outraged by what they perceive as a failure of justice in Turner’s case. But they are equally convinced of something I struggle with – that a harsher sentence for Turner would have been a step in the direction of making his victim whole faster. They are far more convinced than I am that punishment is always the best way for a community to hold responsible those who violate its rules and values....

Of course, the urge to extend punishment to every sort of socially disapproved behavior, including texting in a crosswalk, is hardly a new phenomenon. Since the founding of the United States, government at every level has tended to make unpopular behavior illegal. Just to name a few obvious examples of past prohibitions now likely to stop us in our tracks: at various times there have been laws against having sex outside marriage, distributing birth control, or marrying across races (as highlighted in the new movie Loving). In 1919, for instance, a constitutional amendment was ratified outlawing the making, shipping, or selling of alcohol (although it didn’t last long)....

It’s hard to imagine a justice system that doesn’t rely primarily on the threat of punishment when, for most Americans, no alternative is imaginable. But what if there were alternatives to keeping 2.2 million people in cages that didn’t make the rest of us less safe, that might actually improve our lives? Portugal has tried one such alternative. In 2001, as the Washington Post reported, that country “decriminalized the use of all drugs” and decided to treat drug addiction as a public health problem rather than a criminal matter. The results? Portugal now has close to the lowest rate of drug-induced deaths in Europe – three overdose deaths a year per million people. By comparison, at 45 deaths per million population, the United Kingdom’s rate is more than 14 times greater. In addition, HIV infections have also declined in Portugal, unlike, for example, in the rural United States where a heroin epidemic has the Centers for Disease Control and Prevention worried about the potential for skyrocketing infection rates.

All right, but drug use has often been called a “victimless” crime. Maybe it doesn’t make sense to lock up people who are really only hurting themselves. What about crimes like theft or assault, where the victims are other people? Isn’t punishment a social necessity then?

If you’d asked me that question a few years ago, I would probably have agreed that there are no alternatives to prosecution and punishment in response to such crimes. That was before I met Rachel Herzing, a community organizer who worked for the national prison-abolition group Critical Resistance for 15 years. I invited her to my classes to listen to my students talk about crime, policing, and punishment. She then asked them to imagine the impossible – other methods besides locking people up that a community could use to restore itself to wholeness.

This is the approach taken by the international movement for restorative justice. The Washington, D.C.-based Centre for Justice and Reconciliation describes it this way: “Restorative justice repairs the harm caused by crime. When victims, offenders, and community members meet to decide how to do that, the results can be transformational.”...

So the next time you find yourself thinking idly that there oughta be a law – against not giving up your seat on a bus to someone who needs it more, or playing loud music in a public place, or panhandling – stop for a moment and think again. Yes, such things can be unpleasant for other people, but maybe there’s a just alternative to punishing those who do them.

September 28, 2016 in Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

NY member of Congress puts forward federal bill with "Death Penalty Proposal for Heroin Dealers" ... UPDATE: With four co-sponsors

Current PortraitThis official press release from the offices of Representative Tom Reed, who represents the 29th Congressional District of New York, reports on the introduction of a bill that would respond to the current heroin epidemic by expanding the federal death penalty.  The press release is headlined "Reed Stands with Victims: Offers Death Penalty Proposal for Heroin Dealers," and here are the details form the press release:

Tom Reed continued his fight against heroin and opioid abuse by offering a proposal which would toughen penalties for drug dealers that supply users with illicit substances that cause an overdose death. “We care about the families of every overdose victim in our community and the addicts that are struggling. We’ve held several roundtable discussions and heard directly from the parents who have lost children to opioids and heroin. It’s only right that we hold those responsible for harming our loved ones accountable,” said Reed.

The bill, known as the Help Ensure Lives are Protected (HELP) Act, would allow federal prosecutor expanded access to more severe penalties, including life in prison or the death penalty, when prosecuting certain criminal drug cases where prosecutors can connect an overdose death to the drug dealer that sold heroin laced with fentanyl.

The move comes in the wake of several roundtable discussions held by Reed throughout the region as well as the recent spike in overdoses directly related to fentanyl laced heroin. The number of deaths due to synthetic opioids, mainly Fentanyl, rose 80% between 2013 and 2014.

Fentanyl is extremely addictive substance, 100 times more powerful than morphine, which is often included in heroin without the user’s knowledge, to maximize the dealer’s profits. The substance is so potent that law enforcement officers are forced to wear level ‘A’ hazmat suits following raids and seizures to avoid coming in contact with it. These hazmat suits are the same kind worn by medical professionals combating Ebola.

Reed supported the Comprehensive Opioid Abuse Reduction Act which was signed into law in July. The law provides for new programs that offer prevention and treatment options for addicts by offering grants to states, and groups of states, to implement and expand access to these services. The government funding proposal, which is expected to pass the House later this week, will designate $37 million to these efforts.

Reed says his proposal will “bring balance to the approach” by providing law enforcement with additional options to aid prosecution.  “This is about justice for the victims and their families and giving our law enforcement and prosecutors the tools they need to stop the flow of these lethal substances into our communities,” said Reed.  The proposal was introduced late last week.

I cannot yet find the Help Ensure Lives are Protected (HELP) Act on-line, but I am very interested in seeing just how this bill seeks to apply and administer LWOP and the death penalty in this setting.

UPDATE I have found this page via providing more information about the HELP Act, which on that site goes by this description "H.R.6158 - To provide for enhanced penalties for certain offenses relating to controlled substances containing fentanyl, and for other purposes."  Unfortunately, that webpage does not yet have either the bill text or the a substantive summary, but the page does note that H.R.6158, the HELP Act, was introduced with these four other sponsors:

Rep. Yoho, Ted S. [R-FL-3]

Rep. LaMalfa, Doug [R-CA-1]

Rep. Flores, Bill [R-TX-17]

Rep. Chabot, Steve [R-OH-1]

September 28, 2016 in Death Penalty Reforms, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4)

"How Did Chicago Get So Violent? Did the effort to eradicate the city’s gangs in the 1990s inadvertently lead to its bloody present?"

The question in the title of this post are the headline of this really interesting new Slate article.  I recommend the article in full, and this extended excerpt highlights the key ideas of the piece:

The first wave of convictions stemming from Operation Headache came in March 1996.  But the biggest, most symbolically meaningful blow to the Gangster Disciples was delivered in May 1997, when Hoover was convicted of 42 counts of conspiracy to distribute drugs, received a sentence of six life terms, and was transferred to a supermax prison in Colorado, where his cell was located several stories underground and his ability to communicate with the remnants of his gang were severely constrained.  Soon, the GDs in Chicago had been all but neutralized, and the authorities shifted their attention to decapitating the city’s other major drug organizations, the Black Disciples and the Vice Lords.

Over the course of a roughly 10-year stretch starting in the mid-1990s, leaders from the GDs, the Vice Lords, the Black Disciples, and to a lesser extent, the Latin Kings were successfully prosecuted and taken off the street.  The top-down assault appeared to work as Safer and his colleagues had hoped: violent crime in Chicago began to decline, with the city’s murder total dropping from a high of 934 in 1993 to 599 10 years later.

For a while, it looked like the trend might continue moving in a positive direction, but after dipping below 500 in 2004, the number of murders in Chicago per year leveled off and began hovering in the 400s.  Over the past several years, however, the situation started getting worse; today, Chicago is once again synonymous with out-of-control gun violence, a city that regularly makes national news for the perilous existence that some of its poorest residents must endure.  Over the weekend of Sept. 12, the city passed 3,000 shootings and 500 murders since the beginning of the year, surpassing in just nine months the total numbers from 2015. As of this writing, the 2016 tally is up to 3,131 shootings and 530 homicides; a recent report from the Brennan Center for Justice showed that Chicago, by itself, is responsible for half of the 13 percent increase in homicides that the country as a whole is projected to experience this year.

According to the Chicago Police Department, 85 percent of the city’s gun murders in 2015 can be attributed to gang violence — a statistic that suggests a return to the bad old days while obscuring how profoundly the nature of Chicago’s gang problem has changed in the intervening years.  While experts say the Latin Kings, a Hispanic gang, continue to run a large and rigidly organized drug-selling operation on Chicago’s West Side, the majority of Chicago residents who call themselves gang members are members of a different type of group. Rather than sophisticated drug-selling organizations, most of the city’s gangs are smaller, younger, less formally structured cliques that typically lay claim to no more than the city block or two where they live.  The violence stems not from rivalries between competing enterprises so much as feuds that flare up with acts of disrespect and become entrenched in a cycle of murderous retaliation.

Many close observers of Chicago’s violence believe that, as well-intentioned as it was, the systematic dismantling of gangs like the Disciples led directly to the violence that is devastating the city’s most dangerous neighborhoods in 2016.  Taking out the individuals who ran the city’s drug trade, the theory goes, caused a fracturing of the city’s criminal underworld and produced a vast constellation of new entities that are no less violent, and possibly even more menacing, than their vanquished predecessors.

“Every time they hit these large street gangs, they’d focus on the leadership,” said Lance Williams, an associate professor at Northeastern Illinois University, and the co-author of a book about the rise and fall of the Black P Stone Nation, a gang that was eradicated in the 1980s.  “It’s like cutting the head off a snake — you leave the body in disarray and everyone begins to scramble for control over these small little areas. And that’s where you get a lot of the violence, because the order is no longer there.”  Williams added: “When you lose the leadership, it turns into chaos… What we’re dealing with now is basically the fallout of gang disorganization.”

The proliferation of small gangs has created a complicated and ever-changing patchwork of new alliances and rivalries, and instilled in many young people — predominantly poor, black men — a sense that they are vulnerable at all times to lethal attacks by members of opposing factions.

September 28, 2016 in National and State Crime Data, Offender Characteristics, Offense Characteristics | Permalink | Comments (9)

Tuesday, September 27, 2016

When someone focused on criminal justice empirics calls this the "Greatest. Graph. Ever."...

via this tweet, I feel compelled to reprint it:


Those who are familiar with Professor John Pfaff's work on Twitter or elsewhere will surely understand why he views this graph as reflecting so much greatness, and those not familiar with Professor John Pfaff's work should see this post as my recommendation that you take the time to figure out why he things this graph is so great.

Also, to add my two cents (and also throw in another useful discussion point), I think the graph would be even better is it also noted that December 1972 also marked the end of conscription for the military (i.e., "the draft") in the United States.

September 27, 2016 in Data on sentencing, Scope of Imprisonment | Permalink | Comments (16)

"Why Nobody's Talking About the Supreme Court"

The title of this post is the headline of this timely and interesting post-debate Bloomberg View piece by Noah Feldman. Here are excerpts:

The U.S. Supreme Court didn’t come up Monday in the first presidential debate, and so far, it hasn’t been an important campaign issue. Given the unprecedented vacancy during an election season, that seems weird. But there is an explanation: The election’s consequences for the court are asymmetrical for the two political parties.

If the Democrat, Hillary Clinton, is elected, it will change the court’s balance, either through the confirmation of President Barack Obama’s nominee, Judge Merrick Garland, in the lame-duck session or with the appointment of Garland or another liberal after she takes office.  If the Republican, Donald Trump, is elected, all he can do is replace the late Justice Antonin Scalia with another conservative. That won’t change the court’s political balance.  For that to happen, Trump would need Justice Ruth Bader Ginsburg or Justice Stephen Breyer to be unable to serve, which won’t happen voluntarily for either in the first four years of a Trump presidency.

The result of this asymmetry is that neither candidate has much reason to put the Supreme Court front and center.  Clinton can try to appeal to her base by promising to reshape the Supreme Court, which is an inspiring vision for some liberals, to be sure.  But it isn’t good politics for her to trumpet a liberal transformation of the court when she’s trying to win over the median voter, who may well be skeptical of more judicial activism.

What’s more, Clinton lacks a signature constitutional issue that would make liberals excited about a progressive majority.  That’s because much of the liberal constitutional agenda has been achieved in the last two years, courtesy of Justice Anthony Kennedy.  He wrote the gay-marriage decision in 2015. In 2016, he delivered an opinion protecting affirmative action in higher education. He also provided the deciding vote in the Texas abortion case, safeguarding the abortion right for another generation.  With these decisions, Kennedy effectively took away the sense of constitutional fear and desperation that might otherwise be haunting liberals alongside the possibility of a Trump presidency....

For Trump, the calculus is a little different.  He can’t credibly promise to be a change agent when it comes to Supreme Court appointments. All he can do is say he will hold the line by appointing a conservative -- and indeed he has by releasing the names of 21 possible nominees.  That might have been enough to win over Texas Senator Ted Cruz, if you take Cruz’s word for his flip-flop on endorsing Trump.  But Trump doesn’t really like to depict himself as a movement conservative trying to preserve the status quo. His message is all about how things are broken.  Even if he chose to say that the Supreme Court got it wrong on gay marriage, abortion rights and affirmative action, he can’t say that he would be able to appoint justices who would change those results.

Furthermore, diehard conservatives who care about the Supreme Court are sophisticated enough to understand that they’ve lost on the big-ticket issues that have mattered most to them over the last 20 years. They know the court won’t immediately reverse itself.  Activist legal conservatives are focused mostly on preserving religious liberty in the aftermath of the gay-marriage decision, a position that is essentially defensive and operates on the (correct) background assumption that the culture war has already been lost.

The upshot is that for Trump, making the Supreme Court an election issue doesn’t hold much appeal as a way to energize the right or to capture new voters from the center. He can certainly criticize the courts when it’s convenient, or dismiss their holdings as “anti-police” the way he did during the debate.  So don’t expect much more on the Supreme Court during this election season.  When the dust has settled, however, the Supreme Court will return to the front pages very quickly indeed, and the question of who will succeed Scalia will be one of the most pressing issues facing the new president, whoever it is.

As long-time readers know, and as this prior post explains, I would add to this analysis the important fact that Prez Obama picked a nominee that is a relative political "yawner" for both parties.  As I have explained before, I thought back in March and continue to think today that the current politics around SCOTUS would be much different if Prez Obama made a ground-breaking rather than just a moderate pick, and that would be especially so if he had selected the only woman of color who was seriously vetted for this open SCOTUS spot, US District Judge Ketanji Brown Jackson.  Though I dislike discussion that focus on "playing the race card" or "playing the gender card," I like to be honest when highlighting that it is the personnel and not just the politics at the heart of this "non-issue" reality. 

If the GOP Senate was blocking even a hearing for the first woman of color nominated to the Supreme Court, I am certain Clinton would now be seeking to appeal to her base (and also to moderates) by promising to not let the GOP Senate continue to push Judge Brown Jackson to the back of the bus.  Actually, I suspect Hillary Clinton may be much too cautious politically to actually try to play a race/gender card at the same time via a Rosa Parks reference, but I am certain some of her surrogates (as well as some Dems seeking to wins seats in the Senate) would not be afraid to make this kind of pitch.

Prior related posts on new SCOTUS nominee possibilities:

September 27, 2016 in Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (8)

House Speaker Paul Ryan reportedly still eager to push for federal criminal justice reform

This new Politico article , headlined "Ryan pushes sentencing reform in face of skeptical GOP," reports that a very important politician remains very committed to trying to move along federal sentencing reforms.  Here is how the piece starts:

House Speaker Paul Ryan is facing a major obstacle in his months-long quest to pass criminal justice reform: unenthused House Republicans still skittish about looking soft on crime.  The Wisconsin Republican for weeks has repeated his personal desire to move a bipartisan package that would include allowing well-behaved nonviolent prisoners to be eligible for early release and easing some drug-related sentencing requirements.

It would mark a major accomplishment for the speaker, and a chance for Republicans to show racial minorities they care about issues of social justice — plus a salient, positive message countering Donald Trump’s racially charged bid for the White House.

But the odds are decidedly long. With Trump advocating for controversial policies like systematic “stop and frisk,” and the protests in Charlotte, North Carolina, against police-involved shootings causing racial tensions to flare, Ryan’s conference is not eager to vote on the matter.  An internal GOP leadership “survey” last week taking House Republicans’ temperature on the issue showed that most members were lukewarm at best.

That means that if Ryan wants to make a push for criminal justice reform after the election, he will have his work cut out.  “It’s not an easy thing to make these reforms, and the [Judiciary] committee has taken some time doing it; now they’re taking time educating members on it,” Majority Leader Kevin McCarthy (R-Calif.) said Monday of a package of bills drafted by the Judiciary Committee.  “It is a priority for the speaker. There are concerns … so we’re getting all the questions answered.”

The Judiciary panel last year passed 11 bills to reform federal sentencing laws and improve the prison re-entry system. While the package would not eliminate mandatory minimum sentences, it would significantly reduce sentences for nonviolent drug offenders. It would also create a program to reduce recidivism rates.

The politics of criminal justice reform have soured for conservative supporters. Trump has warned repeatedly of dangerous, crime-ridden cities.  And the FBI on Monday released new statistics showing that murders increased 11 percent and violent crimes rose 4 percent in the U.S. last year.  Though the rates are still low by recent historical standards, it's enough to make law-and-order Republican lawmakers nervous.

While proponents argue that reform would go a long way toward easing racial tensions, opponents vow they’ll never vote against the recommendations of law enforcement during a time of unrest.  (Some Republican lawmakers worry that law enforcement could come out against the pitch, though many national police groups haven’t taken a position.)

Even if Ryan managed to get a bill through the House, the Senate and its 60-vote threshold could stop it in its tracks. Hawkish Republicans, including Sens. Tom Cotton of Arkansas and Jeff Sessions of Alabama, have been sounding the alarm against criminal justice reform.  Senate Majority Leader Mitch McConnell (R-Ky.) has shied from the matter because it divides his conference.  Democrats by and large support the reform proposals.

Sources familiar with Ryan’s thinking say he’s not ready to relent just yet because of the charged political environment.  While he wasn’t able to pass the Judiciary package in September as he originally hoped, Ryan is now eyeing the lame-duck session, by which time tensions might have eased.  “I’m trying to get criminal justice reform done this session of Congress,” Ryan said last week during a speech at the Economic Club of New York.  “That train is on the tracks, and I’m hoping we can get that done sooner rather than later.”

September 27, 2016 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (2)

Monday, September 26, 2016

Florida paper devotes three-part editorial to assail state's sex offender residency restrictions

A helpful reader altered me to this remarkable three-part editorial from the Florida Times-Union that concluded over the weekend highlighting problems with residency restrictions for sex offenders:

Ever eager to focus on solutions even more than problems, I will highlight here the closing sections of the last of these editorials:

A year ago, California stopped requiring all sex offenders meet residency restrictions, instead enforcing these laws only against high-risk offenders. Available housing for low-risk offenders increased dramatically, and the number of homeless offenders decreased. Counties here, such as Duval and Nassau, should immediately create working groups to look at the effectiveness of strict county residency restrictions en route to making changes. We should also look at novel ways to create more housing for released sexual felons.

Communities in Florida have begun to experiment. Several hotels that meet residency restrictions have been transformed into facilities to house sex offenders. In other places in the state, mobile home parks have been converted to complexes that serve those coming out of prison.

One of the more comprehensive programs, however, has been launched by a nonprofit in Eugene, Ore.  An organization, Sponsors, provides both short-term and long-term housing for sexual offenders and predators upon their release. In addition, the organization is currently building an entire complex of apartments that will offer permanent housing for ex-felons, including those convicted of sexual offenses.

Other states such as Washington and Vermont have similarly enacted more humane and effective measures for housing sex offenders and predators that pair governmental agencies with nonprofits to locate housing.

It’s time we look at the possibility of creating such programs here.  Homelessness is not the answer.

September 26, 2016 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (7)