Tuesday, August 25, 2015

"Federalism in Action: How Conservative States Got Smart on Crime"

Freedomworks-logo_0The title of this post is the title of this notable new paper authored by Jason Pye from the conservative group FreedomWorks.  Here is how the relatively short white-paper concludes:

Conservative states have led the way on justice reform over the last decade. By changing the culture of corrections through sentencing reforms that limit mandatory minimum prison terms to the most serious offenders and rely on treatment as an alternative to incarceration, rehabilitative programs for those who do serve time, and continued assistance when offenders reenter society, lawmakers have reduced recidivism, made communities safer, and saved taxpayers money.

The results from conservative states — these laboratories of democracy — are key as members of Congress look for ways to deal with the federal corrections system, which has seen explosive population and cost growth of its own since 1980. This is federalism in action. Through sentencing reforms and a focus on treatment as an alternative to incarceration, the federal government can lessen the cost-burden on taxpayers by using the lessons from the states to get smart on crime.

Conservatives have embraced the justice reform movement, and they should continue to do so. While passed with the best of intentions, the policies of the past have proven unsustainable, both in terms of the fiscal cost and the negative impact on poor and minority communities. The model that conservative states have provided fundamentally changes the nature of the approach. Punishments are, of course, still meted out by courts, but the sentences given offer a means for offenders to alter the direction of their lives.

One such example is a woman named Sarah Gilleland, whose story was told by Gov. Nathan Deal in a joint session of the Georgia General Assembly in January 2012. “Sarah was a drug addict. The drug use that began as recreation resulted in a destructive cocaine and methamphetamine addiction. It took control of her life. At one point, she had no means of transportation, she lost custody of her little girl, she wound up homeless,” Deal explained. “But I mention Sarah tonight because she exemplifies many of the goals we hold for our corrections system.”

“Under the supervision of a drug court, piece-by-piece, she began rebuilding her life. With help, she beat addiction, she won back her daughter, she is now a sponsor helping other women who face the same trials, and because she provides a powerful example of hope and redemption, I have asked her to join us in this chamber tonight,” he said, pointing to Sarah in the gallery of the chamber.

“Sarah was given a shot a better life and she took it. Her story is not the exception, it is playing out all across Georgia as people reclaim their lives through the work of accountability courts.”

“That is why we must focus on transforming our corrections system into a last resort of opportunity—a place where low-level offenders are reclaimed and restored to society as functioning members of the community—working to support their own families and paying taxes,” he added.

Compelling stories such as this are not just told in Georgia, they are also told in other states that have adopted conservative justice reforms that focus on rehabilitation, rather than incarceration. And as more states and the federal government adopt the effort, more prison space will be reserved for the worst offenders in society, while those who have demonstrated a willingness to change their lives become productive citizens.

August 25, 2015 in Mandatory minimum sentencing statutes, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

Monday, August 24, 2015

Aurora victims present a "parade of pain" at on-going James Holmes sentencing proceedings

One of many benefits I see in giving crime victims certain rights in the criminal justice system is to ensure their voices are heard and their experiences are memoralized in courtroom proceedings even when those voices and experiences may not directly impact sentencing outcomes. In turn, I think it now worth highlighting the on-going proceedings in a Colorado courtroom that are effectively and potently reported in this CNN piece headlined "A parade of pain at James Holmes sentencing." I recommend reading the whole piece, and here are excerpts:

One by one, the wounded and the grieving are telling a Colorado judge how the Aurora movie theater gunman stripped the normal from their lives. Some are sobbing, some are angry. All are shattered by loss. It is a parade of pain that will not change the sentence for the 27-year-old shooter. James Eagan Holmes will spend the rest of his life behind bars.

But the inevitable outcome didn't stop the grieving grandfather of the gunman's youngest victim from making a suggestion: "I would challenge the murderer to do the right thing for once in this trial and petition the court for execution by firing squad," said Robert Sullivan.

He was the doting grandfather of 6-year-old Veronica Moser-Sullivan, who had innocent, shining brown eyes. Her pregnant mother, Ashley Moser, was shot and paralyzed.

Moser said she was looking forward to being a mother of two, but now she's nobody's mommy. She needs constant nursing care. She said she wished Holmes could be sentenced to life as a quadriplegic, just as she and two other shooting victims are. More than 40 people gave victim impact statements on Monday, and at least 40 more are expected on Tuesday....

[M]any of the victims say they feel cheated, and they appeared to seek comfort in demonizing a defendant who took so much from them. A man whose son was gunned down in the theater referred to Holmes' schizophrenia as "a mental hangnail" and said he was disgusted during the trial by his "smirk." He called Holmes' attorneys "horrible people" and said they "fabricated a defense" to pad their resumes.

Beth Craft, whose brother John Larimer was killed, said, "The defendant may be mentally ill, but he is more evil than anything else."...

The trial, Kathleen Pourciau said, was like watching someone get away with something. It felt out of whack, unbalanced. It didn't feel like justice.

"When justice isn't served, there's a brutal message delivered to the victims," she said. "When the punishment doesn't fit the crime, the message to the victims is that your loss, your pain isn't important. The message was that the state of Colorado values the life of a mass murderer more than the people he murdered.

"How many people do you have to kill to get the death penalty?" Pourciau asked. "Why do you even have a death penalty if you don't use it? What signal does this sentence send to Bonnie Kate and others? We care, but not that much?"

A sentence of 12 life terms topped by hundreds of additional years behind bars is "absurd," she added, "the judicial equivalent of beating a dead horse."

August 24, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (15)

"Justice Department Administration of the President's Pardon Power: A Case Study in Institutional Conflict of Interest"

The title of this post is the title of this notable new paper by Margaret Colgate Love now available via SSRN. Here is the abstract:

The president’s constitutional pardon power has been administered by the attorney general since before the Civil War, but this arrangement has never been adequately explained or justified. On its face it appears rife with conflict of institutional interests: how could the agency responsible for convicting people and putting them in prison also be tasked with forgiving them and setting them free? In spite of these apparently antithetical missions, the Justice Department managed the pardon program in a low-key and reliable manner for well over a century, staffing it with a handful of career lawyers operating on a shoestring budget, and churning out hundreds of favorable clemency recommendations each year for the president’s consideration. While there were occasionally controversial grants there were never scandalous ones, and the president was able to use his power to good effect in wartime and in peace.

It is only in the past two decades that questions have been raised about the integrity and functionality of the pardon process, focusing squarely on the agency and individuals standing as gatekeeper to the president’s power. President Obama’s decision in early 2014 to launch a large-scale clemency initiative, and the Justice Department’s unprecedented decision to rely upon a consortium of private organizations to manage it, make this a propitious time to consider whether the presidency is well-served by an arrangement making officials responsible for prosecuting crime the primary source of clemency advice.

This essay concludes that the culture and mission of the Justice Department have in recent years become determinedly and irreconcilably hostile to the beneficent purposes of the pardon power, and to its regular use by the president. The only way to deal with the institutional conflict that produced and perpetuates this situation is to transfer the pardon program to the president’s direct supervision in the Executive Office of the President. This move will have a variety of benefits, including facilitating the president’s ability to oversee the workings of the criminal justice system, for which he has a special responsibility under the Constitution. More specifically, it will introduce salutary political accountability to federal prosecutions through presidential oversight and potential revision. Finally, it will give the president control for the first time in decades over his own “benign prerogative.”

August 24, 2015 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Might any Prez candidate pledge to put a criminal defense attorney on the Supreme Court?

Article-2228924-15CDB3E3000005DC-474_634x424The question in the title of this post is prompted by this CBS News dispatch from the presidential campaign trail headlined "Chris Christie makes a Supreme Court promise." Here are excerpts from the piece:

New Jersey Gov. Chris Christie on Thursday pledged that if elected president, his first Supreme Court nominee would not be a Harvard Law or Yale Law School graduate.  "I think you can be pretty sure of that fact," he promised radio talk show host Hugh Hewitt.

In an interview with Hewitt, Christie argued that Americans were tired of the "education establishment" and implied that success was not limited to those who hold an Ivy League education.  Five of the current Supreme Court justices are Harvard Law graduates, while three are Yale graduates.  Justice Ruth Bader Ginsburg received her law degree from Columbia Law School.

The governor mentioned that his ideal U.S. Supreme Court appointees would come from various backgrounds and would know that their rulings affect "real people's" lives every day.  "You need folks who have real life experiences, who have had real struggles, and who have made a difference in their communities in ways that are different than just going to an Ivy League school."

My first reaction to these comments was to find remarkable how similar candidate Christie's comments about selecting judges are to Prez Obama's (often criticized) comments about the importance of judges having "a keen understanding of how the law affects the daily lives of the American people" and having "that quality of empathy, of understanding and identifying with people’s hopes and struggles."

Upon second thought, though, I came to realize that what is really lacking on the Supreme Court are jurists with experience as criminal defense attorneys.  Most notably, the last four appointed Supreme Court Justices all had experience as prosecutors and/or members of the US Department of Justice.  (In reverse order, Justice Kagan has been US Solicitor General, Justice Sotomayor had been a NY state prosecutor, Justice Alito had been a US Attorney for New Jersey, and Chief Justice Roberts had been a senior official in the Justice Department.)  

Of course, despite their Ivy League degrees and some similar resume lines, I think all the current Justices, thanks in part to significant time in a variety of professional roles other than just as a government lawyer, did come onto the Court with some diverse "real life experiences" and "real struggles."  Still, I think candidate Christie is making a reasonable pith for greater educational (and personal and professional?) diversity on the Supreme Court.  And especially now that criminal justice reform is a hot-topic on the campaign trail, it is now at least possible to imagine that a future President would seriously consider nominating for the Supreme Court somebody with a background in criminal defense.

August 24, 2015 in Race, Class, and Gender, Who Sentences? | Permalink | Comments (16)

Spotlighting disparities in who gets drug treatment in prison

This notable new Pacific Standard article shines a spotlight on yet another arena in which race and other personal factors may impact the operation of our modern criminal justice system.  The piece is headlined "Who Does, and Who Doesn’t, Get Drug Treatment in Prison: New research finds a racial disparity," and here are excerpts (with a few key links preserved):

Research has consistently shown how important it is for inmates who come into prison with drug addictions to get treatment behind bars: Drug use in prison that involves needles can spread disease, and cold-turkey withdrawals can lead to overdoses when people get out. But new research also shows that, even when drug treatment is available to prison inmates, not everyone actually takes advantage of it.  In fact, the disparity between who does and does not seek treatment often falls among racial lines.

For her recent article in the journal Addictive Behaviors, University of Colorado–Boulder sociologist Kathryn Nowotny looked at survey information gathered in 2004 from state prisons across the country — over 5,000 inmates in 286 prisons.  She found that fewer than a half of the inmates who had drug dependency problems had received any kind of treatment at all in their time behind bars.  Of those who had, the most commonly referenced treatment was “self-help groups” (as opposed to, say, opioid replacement therapy).  And she also found that, when treatment was available, Hispanic inmates who had drug dependency were much less likely than either white or black inmates to utilize it. But why?

Nowotny wrote that she was motivated to examine the racial disparities in drug treatment program use in prisons because there was a dearth of research on this topic.  But many other researchers have previously found the same patterns in drug treatment programs out in the communities as well.  She notes that — in addition to the widely held consensus viewpoint that people of color have disproportionate contact with every stage of the criminal justice system in America — programs that divert first-time drug offenders out of prison and into alternative treatment have often been shown to favor those defendants “with economic and social resources.”  But the disparity she found in treatment during prison sentences was apparent, even when she accounted for all of the other possible factors, like age, gender, marital status, socioeconomic factors, mental health, and criminal history.

In looking for reasons for the disparity, she points to another finding — that white inmates with drug dependency issues are more likely than Hispanic ones to have in-prison drug treatment mandated as part of their sentences. There could also be a much simpler reason for the difference in drug treatment participation. “It is also possibly that language barriers and other indicators of acculturation account for this disparity especially considering that one in five Latinos in prison are foreign born,” she adds. “This hypothesis is bolstered by the fact that no black-white disparities were found.”

A similar study, published in 2013 in the International Journal of Offender Therapy and Comparative Criminology, looked not at state prison inmates but at people being held in county jails that offered drug treatment programs. But the researchers in that study did not find that the differences broke down on more personal lines. They did not find a disparity between jail inmates of different races or ethnicities; here, it was more an issue of age and individual outlook. Younger people were less likely to seek treatment. Men were less likely than women to accept this kind of help. So were people who said they doubted whether they had the discipline or the time to make it stick.

August 24, 2015 in Drug Offense Sentencing, Prisons and prisoners, Race, Class, and Gender | Permalink | Comments (0)

Sunday, August 23, 2015

Could marijuana reform be making Washington roadways safer even if more drivers test positive for THC?

08-23_DUI_violations_t410The question in the title of this post is prompted by a chart reprinted here that accompanies this extended article concerning the variety of possible impacts of marijuana reform in Washington state.  The article is headlined "Is marijuana dragging us down?: Here's a look at marijuana's role in traffic fatalities, quality-of-life issues, crime," and here are criminal justice excerpts (with key line emphasized):

When recreational marijuana was legalized, Washington entered the unknown, triggering questions — and predictions — about what might happen. Would drug dealers hang around the pot shops? Would it bring riffraff into the neighborhood and make shops easy crime targets? Would people abuse the drug? Or smoke and drive, putting others in harm's way?...

The Washington Traffic Safety Commission found that marijuana has increasingly become a factor in fatal crashes. Most drivers in fatal collisions are tested for drugs. In 2014, among 619 drivers involved in fatal crashes, 89 tested positive for cannabis, according to the Washington Traffic Safety Commission. Of those marijuana-positive drivers, 75 had active THC (the psychoactive compound in cannabis) in their blood, meaning they had recently used the drug. That's twice as many drivers with active THC in their blood than there were in 2010. About half of those 75 drivers were above the legal limit of 5 nanograms of THC per milliliter of blood, the traffic safety commission said. The driver with the highest THC level tested at 70 nanograms of marijuana per milliliter of blood — 14 times the legal limit.

Half of last year's THC-positive drivers were also under the influence of alcohol, and most were above the 0.08 blood alcohol concentration limit, the traffic safety commission said. Marijuana and alcohol used together has a compounding effect.

Shelly Baldwin, spokeswoman for the Washington Traffic Safety Commission, said drugs have surpassed alcohol as factors in fatal crashes. "Marijuana ends up being the most frequent drug, but certainly we see methamphetamine and opiates and cocaine, prescription drugs. There's a long list," Baldwin said....

In 2014, 703 Washington drivers tested positive for being above the legal marijuana limit of 5 ng/mL. That's a fraction of the total DUI violations, which were 25,795 statewide last year. In general, though, driving under the influence violations have gone down in Washington. That means the increase in marijuana detection among drivers is a new, unnerving trend for traffic officials....

The who, what, when, where, why and how of crime is always changing.  Officials are hesitant to say what leads to crime, given its ebb and flow, making it difficult to discern whether legalizing pot affected public safety.

Marijuana-related crimes, such as possession and selling of drug paraphernalia, have dropped off, which makes sense given it's now legal to have pot and a pipe.  In general, crime has gone down around Clark County, though it increased about 1 percent for the whole state last year, according to the Washington Association of Sheriffs and Police Chiefs.  Drug violations accounted for nearly 13,700 crimes reported statewide last year — an uptick from 2013's almost 13,000 violations.

The question in the title of this post is generated by what strikes me as a remarkable — and remarkably significant? — 35% decline in the total number of DUI offenses in Washington state since marijuana was legalized by voter initiative in 2012.  Many public health experts have led me to conclude that if a significant segment of the population substitutes marijuana use for alcohol use — instead of supplementing alcohol with marijuana — there will be net public-health benefits because of reduced alcohol-related harms that should surpass any increased marijuana-related harms.  These data from Washington state, which do seem to show a small increase in marijuana-related roadway harms, suggest there has been a major overall reduction in dangerous driving and thus net public safety benefits in the Evergreen State since marijuana was legalized.

As I say repeatedly in a variety of settings, it is way too early to reach any firm conclusions about what basic crime and public safety data in marijuana reform jurisdictions really mean for the short- or long-term consequences of legalizations.  Nevertheless, even the basic numbers reported here highlight the importance of considering all marijuana-specific data in the context of the broader public safety issues with which they interact.

August 23, 2015 in Data on sentencing, Marijuana Legalization in the States, National and State Crime Data, Pot Prohibition Issues | Permalink | Comments (1)

"From Jones to Jones: Fifteen Years of Incoherence in the Constitutional Law of Sentencing Factfinding"

The title of this post is the title of this notable new paper now on SSRN authored by Benjamin Priester. Here is the abstract:

With tens of thousands of persons sentenced every year in the United States, the contemporary American criminal justice system places undeniable importance upon the constitutional constraints governing the scope of the permissible and impermissible exercises of factfinding authority by sentencing judges in the course of determining the specific punishment to be imposed upon an individual convicted of a criminal offense.  Yet for the past fifteen years the United States Supreme Court has failed to provide doctrinal stability and consistency to this crucial area of constitutional law.

Even the most recent decisions, such as Alleyne v. United States (2013) regarding mandatory minimum sentencing provisions, have generated only more unpredictability in the doctrine and more disagreements among the justices’ viewpoints.  The path to an enduring doctrinal solution is not readily evident, and the Court’s unwillingness to reach consensus leaves the constitutional law of sentencing factfinding trapped in an ongoing cycle of unpredictability and doctrinal incoherence.

August 23, 2015 in Almendarez-Torres and the prior conviction exception, Apprendi / Blakely Retroactivity , Blakely Commentary and News, Blakely in the Supreme Court, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Dog-day highlights from Marijuana Law, Policy and Reform

It has been a few weeks since I have flagged some posts over at my Marijuana Law, Policy & Reform blog. Here are just a few recent notable posts from that space:

August 23, 2015 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1)

Saturday, August 22, 2015

Is it fair I assume Hillary Clinton committed politically-motivated federal crimes because I think her husband did as Prez?

Post_1428434129The question in the title of this post is prompted by my own efforts to understand my own uncertainty and ambivalence about what to make of the private-server/email controversies surrounding Prez candidate Hillary Clinton.  The question is influenced in part by this intriguing National Review account of what a possible criminal case against Hillary Clinton might look like.  

The National Review piece is authored by David French and runs under the headline "The People v. Hillary Rodham Clinton."  The piece imagines "the opening statement delivered in United States District Court for the District of Columbia on January 24, 2017, the first day of Hillary Clinton’s criminal trial," and here are excerpts from its start and end:

Ladies and gentlemen of the jury, the story you are about to hear is the story of a powerful person who believed her needs and her desires trumped federal law, who believed rules are for the little people.  It’s a story of a woman who was running the State Department with one eye on the White House and — because of her own political needs — established a private means of communication that placed America’s national security at risk.

To put the case plainly, the Defendant, Hillary Rodham Clinton, intentionally and unlawfully transmitted classified and confidential information crucial to our national defense through an unsecured, private e-mail system.  Moreover, she negligently stored confidential national defense information on unsecured and unauthorized private devices, including a server located in the bathroom of a loft apartment in Denver. Hillary Clinton committed federal crimes....

The bottom line is quite simple, Mrs. Clinton — working with key aides — ran for her own political convenience a communications system that wasn’t just shoddy or sloppy, but illegal.  She placed American secrets at risk, and in so doing placed American national security — and thus American lives — at risk.  For what purpose? So that she could insulate herself from accountability?  So that she could delete messages she didn’t want the public or other government officials to read?  Mrs. Clinton claims she’s protecting the privacy of her “yoga routines.”

The people of the United States don’t care about their former secretary of state’s exercise habits.  They do, however, care deeply about our national security and our rule of law.

Ladies and gentlemen, you have a sacred duty in this case — to put aside your political preferences, to ignore the incredible wealth and power of the defendant, and to simply apply the law. And when you do, we are confident that you will find Hillary Rodham Clinton guilty of each and every count in the indictment.  Thank you.

As I read this piece, I could kept going back to the first paragraph and kept realizing that I am instinctually inclined to believe Hillary Clinton as Secretary of State would readily break federal criminal laws for political purposes because two decades earlier Bill Clinton as President of the United States readily broke federal criminal laws for political purposes (perjury and obstruction of justice laws in his case).  Indeed, I have long had little respect for Bill Clinton because the Lewinsky affair and its aftermath has always struck me as a unpatriotic "story of a powerful person who believed [his political] needs and [his sexual] desires trumped federal law, who believed rules are for the little people."

Of course, in a traditional criminal trial, it would be bad form and perhaps problematically prejudicial for a prosecutor to suggest to a jury that a particular defendant is more likely guilty because of something done in the past by a spouse or other close family member.  Still, I cannot help but assume the worst about Hillary Clinton as "emailgate" continues to unfold principally because of her husband's past misbehavior.

Please let me know, dear readers, whether you think I am being unfair in my thinking about Hillary Clinton's actions (ideally without too much political vitriol).

August 22, 2015 in Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (24)

"Guns and Drugs"

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

This Article argues that the increasingly prevalent critiques of the War on Drugs apply to other areas of criminal law.  To highlight the broader relevance of these critiques, the Article uses as its test case the criminal regulation of gun possession.

The Article identifies and distills three lines of drug-war criticism, and argues that they apply to possessory gun crimes in much the same way that they apply to drug crimes. Specifically, the Article focuses on: (1) race- and class-based critiques; (2) concerns about police and prosecutorial power; and (3) worries about the social costs of mass incarceration.  Scholars have identified structural flaws in policing, prosecuting, and sentencing in the drug context; in the Article, I highlight the ways that the same issues persist in an area — possessory gun crime — that receives much less criticism.

Appreciating the broader applicability of the drug war’s critiques, I contend, should lead to an examination of the flaws in the criminal justice system that lessen its capacity for solving social problems.

August 22, 2015 in Drug Offense Sentencing, Gun policy and sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Friday, August 21, 2015

New from the Robina Institute: "The Criminal History Enhancements Sourcebook"

FileVia e-mail, I just learned about an exciting new resource from the folks at Robina Institute of Criminal Law and Criminal Justice. Here is the text of the e-mail discussing the new resource:

The Robina Institute of Criminal Law and Criminal Justice at the University of Minnesota Law School is pleased to announce the publication of the Criminal History Enhancements Sourcebook, which examines elements of criminal history enhancements in 18 state and federal jurisdictions within the United States.  This publication is the result of the Robina Institute’s Criminal History Enhancements Project, led by project Co-Directors Professor Richard S. Frase and Visiting Professor Julian V. Roberts.

Criminal history scores make up one of the two most significant determinants of the punishment an offender receives in a sentencing guidelines jurisdiction. While prior convictions are taken into account by all U.S. sentencing systems, sentencing guidelines make the role of prior crimes more explicit by specifying the counting rules and by indicating the effect of prior convictions on sentence severity. Yet, once established, criminal history scoring formulas go largely unexamined. Moreover, there is great diversity across state and federal jurisdictions in the ways that an offender’s criminal record is considered by courts at sentencing.

This publication brings together for the first time information on criminal history enhancements in all existing U.S. sentencing guidelines systems. Building on this base, the Sourcebook examines major variations in the approaches taken by these systems, and identifies the underlying sentencing policy issues raised by such enhancements.

The Sourcebook contains the following elements:

  • A summary of criminal history enhancements in all guidelines jurisdictions;

  • An analysis of the critical dimensions of an offender’s previous convictions;

  • A discussion of the policy options available to commissions considering amendments to their criminal history enhancements; and

  • A bibliography of key readings on the role of prior convictions at sentencing.

The Sourcebook is available for download in full text or by chapter. To download the Sourcebook or learn more about the Robina Institute’s Criminal History Enhancements Project, visit our website and the Criminal History Enhancements Project page

August 21, 2015 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Split Michigan appeals court finds juve has Sixth Amendment right to jury findings for LWOP sentence

Thanks to a few helpful readers, I learned about a very interesting split panel ruling today from the Michigan Court of Appeals in Michigan v. Skinner, No. 317892 (Mich. Ct. App. Aug. 21, 2015). Here is how this majority opinion starts in Skinner:

This case presents a constitutional issue of first impression as to whether the Sixth Amendment mandates that a jury make the findings set forth by Miller v Alabama, 576 US ___; 132 S Ct 2455; 183 L Ed 2d 407 (2012) as codified in MCL 769.25(6), before sentencing a juvenile homicide offender to life imprisonment without the possibility of parole.  We find that the Sixth Amendment mandates that juveniles convicted of homicide who face the possibility of a sentence of life without the possibility of parole have a right to have their sentence determined by a jury.  In so finding, we expressly reserve the issue of whether this defendant should receive the penalty of life in prison without the possibility of parole for a jury.  In this case, defendant requested and was denied her right to have a jury decide her sentence.  Accordingly, we vacate her sentence for first-degree murder and remand for resentencing on that offense consistent with this opinion.

Here is how this dissenting opinion in Skinner gets started:

I respectfully dissent. While the majority sets forth a strong argument, it ultimately fails because it is based upon a false premise: that Apprendi and its progeny requires that all facts relating to a sentence must be found by a jury.  Rather, the principle set forth in those cases establishes only that the Sixth Amendment right to a jury trial requires the jury to find those facts necessary to impose a sentence greater than that authorized by the legislature in the statute itself based upon the conviction itself.  And the statute adopted by the Michigan Legislature with respect to juvenile lifers does not fit within that category.

I am going to need some time to read these opinions closely before I weigh in, but I would guess that the Michigan Supreme Court (and maybe even the US Supreme Court) will have its say before long on this matter.

August 21, 2015 in Assessing Miller and its aftermath, Blakely in the States, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

"Who Built Prison America? Not Ted Kennedy"

Regular readers may recall a couple posts earlier this year (here and here) noting a fascinating book by Princeton Professor Naomi Murakawa titled The First Civil Right: How Liberals Built Prison in America.  Interestingly, Ron Weich, a prominent former staffer for Senator Ted Kennedy has this new commentary at The Crime Report (with the same headline of this post) asserting it is wrong to lay blame on Senator Kennedy for modern mass incarceration.  Here are excerpts:

One of Kennedy’s most far-reaching bipartisan accomplishments was the Sentencing Reform Act of 1984.  Yet this law serves as Exhibit A for Professor Murakawa’s theory that liberals bear responsibility for the failed criminal justice policies of that era.  She blames the sentencing guideline system established by the Act for contributing to mass incarceration and accuses Sen. Kennedy of advancing unduly punitive policies....

Murakawa has harsh words for all who supported the 1984 Act, but she singles out Kennedy for special criticism.  She decries the fact that the man she calls “the liberal lion of the Senate” included in the law various “carceral” elements such as the abolition of parole and a reduction in the availability of good-time credits for prisoners.  She tracks changes in the sentencing bills Kennedy introduced from 1977 to 1984 and argues that his bills became increasingly punitive.  She regards Kennedy as a “hard test case for my claim that Democrats aided, abetted, and legitimized a punitive law and order regime.”

The first flaw in the Murakawa book is its subtitle: How Liberals Built Prison America. No fair observer of criminal justice policy could conclude that liberals -- or conservatives or Democrats or Republicans -- bear sole responsibility for the spike in incarceration over the past half century. Rather, these disastrous criminal justice policies were a bipartisan misadventure that reflected the nation’s anger and fear about crime.

Every crime bill enacted by Congress in the 1980s and 1990s passed with broad bipartisan majorities and the support of leaders from both political parties.  Only a handful of liberal House Democrats sometimes voiced concern.  The Senate often passed crime bills by unanimous consent.

It is certainly fair to criticize Kennedy and other liberals for supporting bad crime bills. But they did not build “Prison America” by themselves, as the subtitle of Murakawa’s book unfairly suggests.

Murakawa’s narrative also fails to appreciate the complex collaborative nature of the legislative process.  She attributes to Kennedy personally the flaws she perceives in his bills. Yes, he was a lead sponsor of the Sentencing Reform Act, but he did not write the law in a vacuum.  The bill’s text is the product of years of negotiations with [Strom] Thurmond and many other members of the Senate, as well as committee markups and floor debates.

Murakawa acknowledges, but does not emphasize, the huge influence of the Justice Department in shaping the final law.  It is no surprise that a bill first introduced during President Jimmy Carter’s administration became more conservative by the time it was signed into law by President Ronald Reagan.

Too often, Murakawa conflates the role of the guideline system and mandatory minimum sentencing laws in contributing to overincarceration.  Many of the most draconian mandatory minimums for drug and gun crimes were enacted in 1986, after the passage of the Sentencing Reform Act of 1984 but before the guidelines took effect in 1987.  Kennedy recognized that mandatory minimums were unjustified once the guideline system had been established.  He repeatedly argued that guidelines are a reasonable mechanism to restrain judicial discretion, whereas mandatory minimums are blunt and unyielding.

Throughout the 1990s Kennedy fought against mandatory minimum sentencing proposals, as I detailed in my article “The Battle Against Mandatory Minimums: A Report from the Front Lines.”

He championed the safety-valve provision (18 USC 3553(f)) in the 1994 crime bill, which allows certain low-level, nonviolent offenders to be sentenced below applicable mandatory minimums.  In fact, in his 1994 reelection race against Mitt Romney, Kennedy faced brutal ads claiming he was soft on crime because he had opposed mandatory sentencing.

Kennedy and other liberals can be faulted for voting in favor of the 1986 crime bill and other bills which contained mandatory minimums, but they did not lead the charge for those policies as Kennedy had for a guideline system.  In fact, Sen. Kennedy was a leader in opposing mandatory minimums once their effect became clear and their inconsistency with the guideline system became apparent.

More generally, Kennedy was a voice for more rational criminal justice policies.  He always opposed capital punishment and, as Prof. Murakawa notes, led the unsuccessful fight to pass the Racial Justice Act which would have allowed capital defendants to challenge their sentences using statistical evidence of racial bias....

Professor Murakawa has written a thoughtful, comprehensive academic study of federal sentencing policies. A book like hers provides an important service, but it cannot be expected to take account of the rough-and-tumble aspects of the legislative arena.  During his long political career, Sen. Kennedy endured criticism that was a lot harsher and less fair than that contained in Murakawa’s book.

As someone who has been involved in criminal justice policy for many years, both before and after I worked for Sen. Kennedy, I share Murakawa’s concern about America’s overreliance on incarceration.  I also applaud the current trend toward more sensible sentencing policies.

I have no doubt that if Sen. Kennedy were alive today, he would be leading the charge for criminal justice reforms.  And he would be doing so in a bipartisan manner, working with Sens. Rand Paul, Mike Lee and other unlikely bedfellows.  That was his way.

Prior related posts:

August 21, 2015 in Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Father given significant prison term for role in deadly crash by underage daughter

As reported in this local article, sentencing took place yesterday in state case that should be a warning to all parents of teenagers (and also involves facts that would make for a challenging law school exam question in a torts or crim law class).  The article is headlined "Dad sentenced to prison in unlicensed daughter’s crash," and here are the sad details:

An New York man who admitted to handing over the keys to his SUV to his unlicensed teenage daughter was sentenced Thursday to 6 1/2 to 16 years in prison for his role in a car crash that killed three teens.

Michael Ware of Eastchester had faced a maximum of 21 years behind bars and $45,000 in fines when sentenced at the Wayne County Courthouse. In handing down the sentence, Judge Raymond Hamill repeatedly told Ware he was "a failure as a father" and that the crash had been "preventable, irresponsible, reckless, stupid, selfish" and, finally, "criminal."

Ware, 54, addressed the court briefly before Hamill pronounced his sentence. "I will never be able to feel the loss the families will forever feel," Ware said. "I can only say, hopefully, this brings some form of closure for everyone affected by this horrible tragedy. Neither I nor my daughter ... ever meant any harm to anyone that day."

Prosecutors said Ware let his daughter, then 15, drive his Chevrolet Suburban on Aug. 30, 2014, near a Pocono resort community in Paupack Township, where he owns a vacation home. His daughter took the vehicle, with five friends inside, to buy breakfast before speeding down a hill and flipping the SUV several times.

Cullen Keffer, Shamus Digney and Ryan Lesher, all 15-year-old residents of Bucks County, Pa., were killed. Another passenger was seriously injured. Ware's daughter, who lives in Pleasantville, N.Y., and another Westchester County teen were uninjured.  "He basically gave his daughter a gun and put the bullets in it for her," said Wilson Black, Digney's uncle, as he entered court.

The judge, who spoke for 20 minutes, noted Ware initially lied to investigators and, for about 60 days, let his daughter take the full blame for the crash by denying he had allowed her to drive that day.  Hamill also said Ware had failed to convince him that he was a candidate for rehabilitation.  "Not once did you say, 'I'm sorry' " until the sentencing, the judge said. "Not once did you say, 'I'm responsible.' "

The judge characterized Ware as an overly permissive father who failed to set appropriate rules.  He noted Ware's daughter told investigators she had been driving since the age of 14 and had driven from New York to the Poconos that weekend.  "Your failure to be a father and say 'No' caused these tragic deaths," he told Ware.

During the sentencing, relatives of the dead boys, who had waited nearly a year for a resolution, held hands and closed their eyes. Some of the parents sobbed while others sat stoically.  Each of the boys' parents delivered emotional victim-impact statements. As they spoke, the only sound in the room was that of relatives trying to choke back tears....

Ware's lawyer, Robert Reno, said he believed the judge had mischaracterized Ware's remorse and called the sentence "ridiculous." He said they would appeal. Ware pleaded guilty in July to three misdemeanor counts of reckless endangerment and three of involuntary manslaughter. He had initially faced felony charges.

Ware's daughter acknowledged responsibility in juvenile court to vehicular homicide counts and was placed on indefinite probation. She was also ordered to do 300 hours of community service, pay restitution and write a 2,000-word essay on the impact of her crime....

Joe Keffer, father of Cullen Keffer, spoke to reporters at the bottom of the courthouse steps after Ware's sentencing. "I'm satisfied the judge went over and above the recommended sentence," he said. "However, Mr. Ware will not have to endure the lifetime of misery our three families will."

August 21, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Victims' Rights At Sentencing | Permalink | Comments (3)

Thursday, August 20, 2015

Has Jared Fogle gotten a sweetheart plea deal and/or celebrity treatment for sex crimes?

The question in the title of this post is one that I first had when I initially heard of the basics facts and basic plea deal terms (reported here) surrounding the child sex crimes committed by former Subway pitchman Jared Fogle.  In addition, a number of blog commenters have in prior posts comments likewise wondered about the sentencing range Fogle would appear to be facing under the terms of the plea deal.  Along those lines, here are now some recent media coverage on this plea deal front:

As federal practitioners know, whatever plea deal that has been put together in this case by the parties could ultimately be rejected by the district judge. Such a plea deal rejection, in a typical federal criminal case, is quite rare. But the media attention already generated by this case makes it anything but typical, and that media attention might also end up influencing the judge who has to approve the deal before it becomes official.

Helpfully, this official press release from the U.S. Attorney’s Office for the Southern District of Indiana provides a bit more detail about what seem to be the sentencing elements of the proposed plea deal: 

According to Senior Litigation Counsel Steven D. DeBrota, who is prosecuting the case for the government, under the terms of the plea agreement, Fogle faces a mandatory minimum sentence of at least 5 years of imprisonment, a fine of up to $500,000, and supervised release after serving his prison sentence for at least 5 years and up to the remainder of his life. There is no agreed sentence in the case and the government may request of up to 151 months of imprisonment. However, Fogle may not request a sentence below 5 years of imprisonment.

The Plea Agreement also requires Fogle to pay a total of $1,400,000 in restitution to the 14 victims in the case, 8 of whom are still minors, and forfeit assets of $50,000. This is the largest amount of restitution ever ordered for a child pornography or sex trafficking case in the history of the Southern District of Indiana. The victims will be able to use these funds to pay for counseling and treatment to combat the debilitating life effects of these crimes.

Reading between the lines, it seems that the plea deal as described here may only limit the severity of the sentencing that prosecutors recommend, it may not formally limit what sentence the judge could acually impose. If this is accurate, then I would predict that the district judge would be inclined to accept even a seemingly "sweetheart" deal for Fogle safe in the knowledge that he could ultimately impose a sentence longer than the 12.5 years of imprisonment likely to be recommended by prosecutors when sentencing finally rolls around.

Prior related posts:

August 20, 2015 in Celebrity sentencings, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (13)

Fourth Circuit refuses to allow convicted former Virginia Gov to remain free pending SCOTUS appeal

As reported in this local article, headlined "Bob McDonnell headed to prison after appeals court rejection," a high-profile white-collar federal defendant has just learned that he may no longer avoid serving his imposed prison sentence while continue to pursue his appeals. Here are the basics:

Former Virginia governor Bob McDonnell is likely headed to prison after a federal appeals court turned down his request to remain free while he appeals his federal corruption conviction to the Supreme Court....

The decision means we should know when and where McDonnell will serve his sentence in seven days. McDonnell’s attorneys planned to petition the Supreme Court to allow the former governor to remain free on bond.

“I am saddened by the Court’s decision today to deny me freedom while I pursue vindication in the U.S. Supreme Court,” McDonnell wrote in a statement released Thursday afternoon. “I am innocent of these charges and will petition the U.S. Supreme Court for a grant of bond. I ask my exceptional friends across the nation to continue to support and pray for me and my family during this agonizing time. I thank God for His abundant grace and strength as I continue this difficult journey.”

Earlier this month, the 4th Circuit Court unanimously rejected’s McDonnell’s second request to consider an appeal.

McDonnell was found guilty of corruption charges and sentenced in January to two years in federal prison. Since then McDonnell has been trying to get his guilty verdicts thrown out. As a result, McDonnell’s lawyer Henry Asbill said his team would appeal the conviction to the Supreme Court.

August 20, 2015 in Celebrity sentencings, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (5)

"Bernie Sanders Announces Bill to Abolish Private Prisons, Hints at Marijuana Policy Platform"

The title of this post is the headline of this notableg piece via the Marijuana Politics website that reports on some recent statements by Senator Sanders on the campaign trail that should be of special interest to sentencing law and policy fans. Here are excerpts (with links from original):

Bernie Sanders isn’t done talking about criminal justice reform — in fact, he’s merely getting started.  The presidential contender continues to rise in the polls and sensible Drug War reforms will only increase his standing with the Democratic base.

Appearing at a campaign rally in Nevada on Tuesday, the Vermont Senator and Democratic presidential candidate talked at length about the unfairly punitive policies that plague the American justice system and disproportionately affect people of color in the United States. Speaking to the crowd of 4,500 supporters gathered outside the University of Nevada, Sen. Sanders went beyond his previous speeches on the issue, announcing that, come September, he will be introducing federal legislation which would abolish for-profit private prisons.

“When Congress reconvenes in September,” Sanders said, “I will be introducing legislation, which takes corporations out of profiteering from running jails.”

Tackling the problem of for-profit prisons is a bold move for a federal legislator, as the prison industry is a hugely profitable part of the U.S. economy.  The top two private prison companies in the country, Corrections Corporation of America and GEO Group, have a combined annual revenue of over $3 billion, much of which is spent lobbying elected officials to protect their bottom line.  While some states, such as New York and Illinois, have enacted laws to ban the privatization of prisons, for-profit prisons have tragically remained a staple of the American criminal justice system, in large part due to the country’s skyrocketing incarceration rates made possible by the War on Drugs.

Bernie Sanders also indicated that the War on Drugs will be a focus of his campaign. “We want to deal with minimum sentencing,” Sanders said Tuesday,  “Too many lives have been destroyed for non-violent issues.  People that are sent to jail have police records. We have got to change that.  Our job is to keep people out of jail, not in jail.”  According to audience members, Bernie Sanders also said that his campaign will be addressing marijuana legalization in the weeks to come.

August 20, 2015 in Campaign 2016 and sentencing issues, Drug Offense Sentencing, Elections and sentencing issues in political debates, Prisons and prisoners, Who Sentences? | Permalink | Comments (3)

Connecticut Supreme Court retroactive abolition of death sentences prompting prosepctive perspectives

Because I find a lot of state supreme court sentencing rulings quite interesting and important, I am sometimes troubled that such rulings rarely too garner much media or academic attention.  But, as with many stories in the sentencing unverse, these dyanmics change dramatically when the issue is death penalty abolition.  So, I am not too surprised that last week's ruling by the Connecticut Supreme Court, which followed up the state's legislature's prospective death penalty repeal with retrospective state consitutional abolition (basics here), has got lots of folks talking a lot.  Two recent commentaries especially have caught my attention this morning:

A key passage: "Although the State of Connecticut vs. Eduardo Santiago ruling definitively bans capital punishment in Connecticut, it raises three key questions about the death penalty nationally.  The first question is for the U.S. Supreme Court: How many states must abolish the death penalty before the high court will strike it down for good?"

A key passage: "In the breadth of its perspective on the history and current problematic state of the death penalty, in its cleareyed dissection of the irreconcilable conflict at the heart of modern death­penalty jurisprudence, the Connecticut Supreme Court not only produced an important decision for its own jurisdiction; but it addressed the United States Supreme Court frankly and directly.  The decision engages the Supreme Court at a crucial moment of mounting unease, within the court and outside it, with the death penalty’s trajectory over the nearly four decades since the court permitted states to resume executions."

Meanwhile, Kent Scheidegger at Crime & Consequences also continues to ruminate on what the Connecticut Supreme Court did in these follow-up posts: "Breathtaking Hypocrisy" and "Death-penalty Deception"

Prior related post:

August 20, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Wednesday, August 19, 2015

Even with plea deal, Subway pitchman Jared likely facing at least a decade in federal prison for sex offenses

This Reuters article, headlined "Former Subway pitchman seeks to plead guilty to child pornography, sex charges," provides a lot more factual details concerning the multiple federal sex offenders committed by a renown TV figure.  Here are the ugly factual and legal specifics surrounding Jared Fogle:

Former Subway sandwich chain pitchman Jared Fogle asked a federal judge on Wednesday to accept his plea of guilty to charges of child pornography and traveling for illicit paid sex with minors.  Federal Judge Mark Dinsmore must now review the plea deal Fogle's attorneys reached with prosecutors and decide whether to accept it. In the meantime the court entered a technical plea of not guilty on Fogle's behalf.

Fogle, who became famous after losing a lot of weight on a diet that included Subway sandwiches, was placed on home detention and must wear an electronic monitoring device. No date has been set for his next appearance.

Under the deal, Fogle would serve between five and 12 years in prison, pay $1.4 million in restitution to 14 minor victims, register as a sex offender and meet other conditions....

According to the charges, Rusell Taylor, head of the Jared Foundation set up to combat child obesity, secretly taped 12 minors while they changed clothes and showered at his home, including two who were as young as 13 or 14. He shared the images with Fogle, who knew they showed minors, prosecutors said.

Prosecutors said Fogle also received commercial child pornography from Taylor, viewed it and failed to report it. He stored explicit images of children as young as six, prosecutors said.

Fogle traveled to New York City at least twice between 2010 and 2013 seeking sex with minors, and paid for sex acts with a girl he knew to be 17 years old and another girl younger than 18. He told the first girl he would "make it worth her while" if she could find him another minor to have sex with, "the younger the girl, the better," according to the indictment. Prosecutors said he repeatedly asked prostitutes and others to find him 14- and 15-year-olds for sex.

Police and prosecutors said in a news conference on Wednesday that the investigation of Taylor and Fogle started after a tip from a private citizen....

Immediately after the hearing Fogle's wife, Katie, said in a statement that she would seek an end to the marriage. "Obviously, I am extremely shocked and disappointed by the recent developments involving Jared. I am in the process of seeking a dissolution of the marriage," she said in the statement released by her lawyer.

Fogle's attorney Jeremy Margolis told reporters in a statement on the courthouse steps: "He expects to go to prison, he will do his time... He will continue to make amends to people whose lives he has affected, and at some point hopes to become again a productive member of society."

Authorities searched Fogle's home in the Zionsville suburb northwest of Indianapolis in July, two months after Taylor was arrested on federal child pornography charges. Assistant U.S. Attorney Steven DeBrota said at a news conference that Fogle continued to seek paid sex with minors even after Taylor's arrest, but was not successful.

I would need to see the text of any plea agreement in order to come up with any firm prediction as to Fogle's likely guideline sentencing range or as to what ultimate sentence he will receive. Nevertheless, the fact that Fogle's crimes included not only child porn offenses, but also repeated solicitation of under-age girls (even after he was under investigation) leads me to predict a double-digit prison sentence is already pretty likely.

Prior related post:

August 19, 2015 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (8)

"Why Not Treat Drug Crimes as White-Collar Crimes?"

The question in the title of this post is the title of this notable new article available on SSRN authored by Thea Johnson and Mark Osler. Here is the abstract:

Drug dealing is a business enterprise.  At its core is the manufacture, transport, financing, and selling of illegal narcotics.  The most successful drug dealers are the ones who are skilled in the tools of business, and success is measured in the profit generated. Given these undeniable realities, shouldn’t we treat narcotics trafficking the way we do other business-based crimes like fraud or embezzlement?

One odd point of distinction between narcotics and other business crimes has been the frequent use of harsh sentencing measures to create deterrence in the former but not the latter.  This is odd because deterrence works where a potential violator both (1) is aware of possible sanctions, and (2) performs a rational cost-benefit analysis that incorporates those possible sanctions.  White collar defendants are a better target for deterrence measures by both of these metrics, yet we use those tough measures often in addressing drug crimes and almost never in tackling other business crimes.

To conflate the punishments for narcotics crime and other business crimes would be fairly simple.  They could fall under a single guideline in a guideline system, with sentences determined in proportion to the amount of profit taken. Statutes could be similarly constructed. Many sectors of society want to lower incarceration and bring new integrity to the criminal justice system. Treating drug crimes for what they are — crimes of commerce — would go a long way towards that goal.

August 19, 2015 in Drug Offense Sentencing, Offense Characteristics, White-collar sentencing | Permalink | Comments (4)

"FDA warns Ohio not to illegally import execution drugs"

The title of this post is the headline of this notable new article in my own Columbus Dispatch. The piece provides both the latest news and effective background on the difficulties Ohio has been facing of late in the operation of its death machinery:

A U.S. Food and Drug Administration official wrote June 26 to Gary Mohr, director of the Ohio Department of Rehabilitation Correction, saying the agency learned the state “intends to obtain bulk and finished dosage forms of sodium thiopental.  Since sodium thiopental is not available in the United States, we assume the product would be obtained from an overseas source.”

“Please note that there is no FDA approved application for sodium thiopental,” wrote Domenic Veneziano, the federal agency’s director of import operations, “and it is illegal to import an unapproved new drug into the United States.”

Prisons spokeswoman JoEllen Smith confirmed receipt of the letter, but she would not say if the state followed through with an overseas purchase of the drug used in executions.  “DRC continues to seek all legal means to obtain the drugs necessary to carry out court ordered executions. This process has included multiple options,” Smith said.  The agency does not yet have drugs for the next execution, she said....

The latest development comes less than five months before Ohio’s scheduled execution of Ronald Phillips of Summit County on Jan. 21, 2016.  Another 20 executions have been set through May 2019.

Ohio’s last execution was Jan. 16, 2014, when Dennis McGuire struggled and gasped for several minutes before succumbing to a combination of midazolam, a sedative, and hydromorphone, a morphine derivative.  The drugs had never been used in combination for an execution anywhere in the U.S.  Prison officials subsequently abandoned using those drugs, and turned to the General Assembly for help.   The legislature passed a law permitting the agency to buy drugs under a secret contract with a “compounding pharmacy,” typically smaller businesses which mix ingredients to user specifications.

Sodium thiopental is no longer available for purchase in the U.S. The last domestic manufacturer stopped production in 2011, largely because states were using it for executions.  Ohio’s revised execution policy calls for using large doses of sedatives, either sodium thiopental or pentobarbital.  

August 19, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Tuesday, August 18, 2015

What sort of child porn federal plea deal might be in works for Subway pitchman Jared Fogle?

The question in the title of this post is prompted by this (celebrity?) federal criminal justice news emerging from Indiana late today: "Jared Fogle, the former Subway spokesman, is expected to plead guilty to possession of child pornography charges."  Here are the details:

Sources say Fogle will accept a plea deal Wednesday. The U.S. Attorney’s Office will hold a press conference tomorrow afternoon to discuss the deal and charges against Fogle. Fogle’s attorney, Ron Elberger, had no comment in regards to the plea deal. He said any information regarding the charges would come from the attorney’s office. Elberger did say Fogle’s suspension with Subway continues....

The charges come after federal agents raided Fogle’s Zionsville home in early July. FBI sources confirmed to FOX59 state and federal investigators were serving warrants at his home in connection with a child pornography investigation. Several computers and DVDs were seized from Fogle’s home.

Earlier this year, Russell Taylor, the former director of the Jared Foundation started by Fogle, was arrested in a child pornography case. He was accused of possessing and producing child pornography. Investigators said a search of Taylor’s home turned up more than 500 videos with images of child pornography. In May, Taylor unsuccessfully tried to kill himself while in jail.

Fogle gained national fame after attributing massive weight loss to eating Subway sandwiches. He was a freshman at Indiana University at the time. He later became a visible presence in Subway ad campaigns, pitching the restaurant’s sandwiches and touting their health benefits.

Subway suspended their relationship with the spokesman shortly after the raid.

Prior related post:

August 18, 2015 in Celebrity sentencings, Sex Offender Sentencing | Permalink | Comments (3)

Lots and lots of good summer reads about US criminal justice problems

Among the many benefits I see in lots more political and policy attention to mass incarceration and broader American criminal justice concerns is the presence of lots more thoughtful (old and new) media coverage of problems in current US policies and pactices.  Here are just a few examples of both news coverage and commentary catching my eye early in this mid-summer week:

August 18, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

Finally, a bit more (though inadequate and unfair) discussion of sentencing finality issues

I am intrigued to see this potent new New York Times op-ed by civil rights attorney Alec Karakatsanis headlined "President Obama’s Department of Injustice."  But, as explained below (and as hinted in the post title), though this piece does a useful job of highlighting concerns with doctrines and policies that give too much significance to the "finality" of problematic federal prison sentences, I fear this op-ed is itself a problematic version of "shooting the messenger."  Here are excerpts (with some key phrases emphasized for the comments to follow):

Last month, President Obama used his clemency power to reduce the sentences of 46 federal prisoners locked up on drug­-related charges.  But for the last six years, his administration has worked repeatedly behind the scenes to ensure that tens of thousands of poor people — disproportionately minorities — languish in federal prison on sentences declared by the courts, and even the president himself, to be illegal and unjustifiable.

The case of Ezell Gilbert is emblematic of this injustice.  In March 1997, he was sentenced to 24 years and four months in federal prison for possession with the intent to distribute more than 50 grams of crack cocaine.  Because of mandatory sentencing laws, Mr. Gilbert was automatically sentenced to a quarter-century in prison, though even the judge who sentenced him admitted that this was too harsh.

At his sentencing, Mr. Gilbert noted a legal error that improperly increased his sentence by approximately a decade based on a misclassification of one of his prior offenses. In 1999, without a lawyer, he filed a petition seeking his release.  A court ruled against him. Nearly 10 years later, the Supreme Court issued a ruling in another prisoner’s case, confirming that Mr. Gilbert had been right.  A public defender helped him file a new petition for immediate release in light of this new decision.

Mr. Obama’s Justice Department, however, convinced a Florida federal judge that even if Mr. Gilbert’s sentence was illegal, he had to remain in prison because prisoners should not be able to petition more than once for release.  The “finality” of criminal cases was too important, the department argued, to allow prisoners more than one petition, even if a previous one was wrongly denied.

A federal appellate court disagreed, and in June 2010, three judges set Mr. Gilbert free. The judges rejected the administration’s argument as a departure from basic fairness and explained that it simply could not be the law in America that a person had to serve a prison sentence that everyone admitted was illegal.  Mr. Gilbert returned home and stayed out of trouble.

Here’s where it gets interesting. There are many people like Mr. Gilbert in America’s federal prisons — people whose sentences are now obviously illegal. Instead of rushing to ensure that all those thousands of men and women illegally imprisoned at taxpayer expense were set free, the Justice Department said that it did not want a rule that allowed other prisoners like Mr. Gilbert to retroactively challenge their now illegal sentences.  If the “floodgates” were opened, too many others — mostly poor, mostly black — would have to be released.  The Obama administration’s fear of the political ramifications of thousands of poor minority prisoners being released at once around the country, what Justice William J. Brennan Jr. once called “a fear of too much justice,” is the real justification.

In May 2011, the same court, led by a different group of judges, sided with the original judge, saying that the “finality” of sentences was too important a principle to allow prisoners to be released on a second rather than first petition, even if the prison sentence was illegal.  A contrary rule would force the courts to hear the complaints of too many other prisoners. Mr. Gilbert was rearrested and sent back to prison to serve out his illegal sentence.

Judge James Hill, then an 87-­year­old senior judge on the appellate court in Atlanta, wrote a passionate dissent.  Judge Hill, a conservative who served in World War II and was appointed by Richard M. Nixon, called the decision “shocking” and declared that a “judicial system that values finality over justice is morally bankrupt.”  Judge Hill wrote that the result was “urged by a department of the United States that calls itself, without a trace of irony, the Department of Justice.”  Judge Hill concluded: “The government hints that there are many others in Gilbert’s position — sitting in prison serving sentences that were illegally imposed. We used to call such systems ‘gulags.’ Now, apparently, we call them the United States.”

Two years later, the Justice Department used a similar tactic to overturn an entirely different federal appellate court decision that could have freed thousands of prisoners convicted of nonviolent crack cocaine offenses — again, mostly impoverished and mostly black — on the grounds that their sentences were discriminatory and unjustifiable.  The administration again did its work without fanfare in esoteric legal briefs, even as the president publicly called the crack­-cocaine sentencing system “unfair.”

In 2013, several years after sending him back to prison, Mr. Obama granted Mr. Gilbert clemency, and the president has recently won praise for doing the same for several dozen other prisoners of the war on drugs....  

But Mr. Obama must take steps to further undo the damage that he has done.  He should use his clemency power to release all those currently held in a federal prison on an illegal sentence.  And he should appoint a permanent special counsel whose job would be to review new laws and federal court cases on a continuing basis to identify and release other prisoners whose sentences retroactively become clearly unlawful.  That the Department of Justice and Bureau of Prisons have never created such a position is an outrage.  If we fail to demand change now, this moment for justice may be lost.

I very much like this author's suggestion that DOJ and BOP have special counsel who would seek to identify and advocate for the release of those currently held in a federal prison on an illegal sentence. But, as a matter of substance, given that vast majority of federal prisoners sentenced before the 2005 Booker ruling were sentenced in violation of the Sixth Amendment, the author is arguably asserting that it is unjust that any federal prisoner is still serving any pre-Booker guideline sentence (let alone any other sentence impacted by any of the many pro-defendant Supreme Court sentencing rulings of the last decade).

Even more troublesome, as a matter of process, DOJ has not really been "working behind the scenes" or using any novel "tactic... in esoteric legal briefs" in order to keep prisoners behind bars based on illegal sentences.  Rather, DOJ has been just doing its job, namely seeking to faithfully execute the laws duly enacted by Congress and interpretted by the courts.  In the Gilbert case and in the other cases referenced in this op-ed, the real "villian" in these complicated legal stories is not really DOJ, but the text of the AEDPA and the Fair Sentencing Act which DOJ is duty-bound to seek to faithfully apply.  

This op-ed is not entirely off-base for suggesting that DOJ could be more inclined to read federal statutes and court rulings in a more defendant-friendly way.  But, especially in recent years, DOJ under the Obama Administration has actually been pretty willing to help prior-sentenced defendants get an extra day in court.  For example, after a few lower courts ruled that the FSA's lower crack mandatory minimums applied to "pipeline cases," DOJ changes its litigation arguments to a more defendant-friendly position.  In addition, Obama's DOJ has generally endorsed retroactive application of defendant-friendly guideline amendments.  And, most recently, DOJ appears to be taking a pro-defendant stance on the broad retroactivity of the Supeme Court's recent constitutional rulings in Miller concerning juve LWOP sentences and Johnson concerning ACCA sentences.

As regular readers know, I pull few punches when it comes to criticizing the Obama Administration and its Justice Department when making what I view as misguided discretionary decisions concerning the application and enforcement of federal sentencing laws and procedures.  But this op-ed, rather than highlight fundamental problems with laws like AEDPA and court jurisprudence that gives excessive weight to sentence finality, seems problematically eager to suggest a star-chamber deep inside Main Justice has Obama Administration officials twirling their mustashes while devising esoteric tactics for keeping innocent people in prison for as long as possible.  

I do not want to unduly criticize this op-ed because I have long been motivated by the same concerns as the author concerning courts having ample means to remedy problematic prior-imposed prison sentences. But the core problem is not really Obama's DOJ and its litigation positions, but the laws put in place by Congress and interpretted by the courts which largely demand that DOJ take many of its seemingly hard-hearted litigation positions.

Some (of many) prior posts on sentencing finality:

August 18, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

"Can a Federal Prisoner Be Too Old to Jail?"

The title of this post is the headline of this notable new National Journal article.  Here are excerpts:

When you're locked in federal prison, how old do you have to be to count as "aging"?

That's the question two federal agencies are grappling over, and the answer they pick will determine how the government spends more than $800 million in public funding for prisons.  And for tens of thousands of federal inmates, it could mean the difference between becoming eligible for a late-life release program and spending their twilight years behind bars.

The Federal Bureau of Prisons is struggling to adjust to an aging prison population, a product, in part, of criminal-justice reforms of the late 1980s that dramatically reduced federal parole and imposed mandatory minimum sentences for some offenses.  In fiscal 2013, the Federal Bureau of Prisons spent nearly 20 percent of its $6.9 billion budget to incarcerate inmates aged 50 and older.  And without a policy intervention, those costs are set to rise: Inmates aged 50 and older make up the fastest-growing segment of the prison population, according to Justice Department Inspector General Michael Horowitz.

To meet those costs, the Bureau of Prisons is requesting a 6.1 percent increase in funding for fiscal 2016, an increase from the bureau's $6.9 billion budget in 2015.  But in a report released in May, the Justice Department Office of the Inspector General suggested the Bureau of Prisons consider an alternative solution: expand a "compassionate-release" program that reduces the term of imprisonment for elderly inmates.

To be eligible for the reduced sentencing program, inmates must have "chronic or serious medical conditions relating to the aging process" that "substantially diminish their ability to function in a correctional facility" for which "conventional treatment promises no substantial improvement," according to a statement from the Bureau of Prisons.  They must also have served more than half of their sentence.  For inmates looking for early release under nonmedical circumstances, the time-served bar is higher: "the greater of 10 years or 75 percent of their term."...

But for any of the above criteria to be considered, the inmate must be aged 65 or older. The Inspector General report did not explicitly call on the Bureau of Prisons to lower the limit in its May report.  Instead, it recommended the bureau reconsider the age bar and noted the potential advantages of setting it at age 50.

The lower threshold would cut incarceration costs and relieve prison overcrowding without significantly increasing recidivism rates, the report said.  The report notes several ways in which prisoners 50 and over differ from the rest of the prison population.  Older inmates cost an average of 8 percent more to confine, but they are also less likely to end up back in prison after release.  While the recidivism rate among all prisoners is 41 percent, for those released after age 50, the rate falls to 15 percent.

According to the Inspector General report, lowering the threshold age from 65 to 50 and instituting a 5 percent release rate for only those inmates in minimum or low-security institutions or medical centers could reduce incarceration costs by approximately $28 million per year.  Federal prisons with the most aging inmates spent "five times more per inmate on medical care" and "14 times more per inmate on medication" than institutions with the fewest aging inmates, the report said.

The 65-or-over bar for the program is relatively new, set in 2013 in an effort to clarify the release program's eligibility criteria following a separate Inspector General report released earlier that year....  For now, it's unclear whether the Bureau of Prisons will lower the minimum age for its compassionate-release program.  In its response to the May Inspector General report, the agency said it would "raise the issue with relevant stakeholders for further discussion."

August 18, 2015 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Three months after jury's death verdict, Tsarnaev lawyers move for new penalty trial

As reported in this AP article, headlined "Lawyers ask for new trial outside Boston for marathon bomber," the Dzhokhar Tsarnaev's attorneys have now moved in federal district court for a new penalty phase trial based mostly their claim that "due to continuous and unrelenting publicity combined with pervasive connections between jurors and the events surrounding the Boston Marathon Bombing that precluded impartial adjudication in both appearance and fact."  (This last phrase comes from the start of the papers filed yesterday, which can be accessed at this link thanks to The Marshall Project.)  

Here is a partial summary of the filing via the AP piece (including an extra legal twist thanks to the Supreme Court's recent Johnson ruling):

They argued that, because of widespread outrage in Boston after the deadly 2013 attack, jurors in the city couldn't be objective before finding him guilty and recommending a death sentence.  As evidence of "continuous and unrelenting publicity," they provided a long list of public events held in honor of the victims, including a new city holiday and several races.

Widespread media coverage featured stories about survivors, including one "powerfully emotional" moment during the 2015 marathon when amputee Rebekah Gregory ran the last 3.5 miles on a prosthetic leg before falling to her knees at the finish line, crying, the filing said.  Banners posted around the city urged solidarity.  Even on social media, the lawyers wrote, jurors were inundated with posts from relatives and friends.

"Put simply, prejudicial media coverage, events and environment saturated greater Boston, including the social networks of actual trial jurors, and made it an improper venue for the trial of this case," the filing said.

The filing concludes that the atmosphere tainted Tsarnaev's constitutional right to an impartial trial.  It asks that his guilty verdict be overturned and that the court provide a new trial to determine his guilt and his penalty....

The defense tried unsuccessfully during the trial to have it moved elsewhere, warning that too many people had personal ties to the marathon or the attack and that anguish in Boston was too powerful to provide a fair trial.

The filing Monday reiterated that request and added new legal arguments, including that a recent U.S. Supreme Court ruling throws many convictions into question.  That ruling centered on the legal definition of a "crime of violence," a distinction that can carry heavier penalties.  The court ruled that part of the federal definition was unconstitutionally vague and struck it down.

In the Tsarnaev case, jurors were told that 15 of his convictions were for crimes of violence, but the trial court didn't explain which part of the definition they met, according to the filing.  Therefore, Tsarnaev should be acquitted for all of those charges, his attorneys wrote.  Tsarnaev was charged with placing and discharging an explosive in public, for example, but his lawyers said "the 'delivery' and 'placement' of an explosive do not involve violent force."

August 18, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (1)

Monday, August 17, 2015

"Prosecutorial Constitutionalism"

The title of this post is the title of this interesting-looking new paper available via SSRN authored by Eric Fish. Here is the abstract:

As adversary lawyers, prosecutors are obligated to seek convictions.  But as executive branch officials, prosecutors are obligated to interpret and apply the Constitution in good faith.  These two roles are fundamentally at odds.  The first requires prosecutors to interpret the Constitution strategically so as to limit defendants’ rights, while the second requires them to interpret the Constitution evenhandedly much like judges do. The crucial question is: when should prosecutors be partisan advocates, and when should they be quasi-judicial rights enforcers? 

This Article argues that prosecutors should adopt the latter role in situations where the adversary system fails.  This happens when judges are unable to effectively control prosecutors’ actions (for example, with regard to the duty to reveal exculpatory evidence), and also when judges fail to enforce the relevant right out of concern for the limits of judicial doctrine (for example, with regard to charging decisions and plea bargaining).  In such situations, prosecutors should protect defendants’ constitutional rights even if judicial doctrine does not require it, and even if doing so lowers the chance of obtaining a conviction.

But individual prosecutors can hardly be expected to decide by themselves when to switch between these two roles.  Rather, prosecutors’ offices must enforce defendants’ constitutional rights by establishing internal policies that govern prosecutorial decision-making.  Such policies can be found in places like the American Bar Association’s Rules of Professional Conduct, the United States Attorneys’ Manual, and the State of Washington’s Recommended Prosecution Standards.  Indeed, although these documents are not presently understood as tools of constitutional enforcement, they already protect defendants’ constitutional rights above the baseline set by judges in a wide variety of areas: charging decisions, plea bargaining, grand jury proceedings, the disclosure of exculpatory evidence, exonerations, and more.  Consequently, these internal systems of regulation for prosecutors function as important sites of constitutional lawmaking.

August 17, 2015 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

US Sentencing Commission releases new data on retroactive application of "drugs -2" guideline amendment

I just noticed on the US Sentencing Commission's website this notable new document titled "2014 Drug Guidelines Amendment Retroactivity Data Report." This part of the report's introduction provides the basic back-story for the data which follow:

On April 30, 2014, the Commission submitted to Congress an amendment to the federal sentencing guidelines that revised the guidelines applicable to drug trafficking offenses by changing how the base offense levels in the drug or chemical quantity tables in sections 2D1.1 and 2D1.11 of the Guidelines Manual incorporate the statutory mandatory minimum penalties for drug trafficking offenses (Amendment 782). Specifically, the amendment reduced by two levels the offense levels assigned to the quantities that trigger the statutory mandatory minimum penalties, resulting in corresponding guideline ranges that include the mandatory minimum penalties, and made conforming changes to section 2D1.1. Amendment 782 became effective on November 1, 2014.

On July 18, 2014, the Commission voted to give retroactive effect to Amendment 782 beginning on the effective date of the amendment. The Commission also voted to require that courts not release any offender whose term of imprisonment was reduced pursuant to retroactive applications of Amendment 782 prior to November 1, 2015.  To effectuate these decisions, the Commission promulgated Amendment 788, which added Amendment 782 to the list of amendments in section 1B1.10 (Reduction in Term of Imprisonment as a Result of an Amended Guideline Range)(Policy Statement) that apply retroactively. Amendment 788 also added a new special instruction to section 1B1.10 requiring that the effective date of all orders reducing a term of imprisonment pursuant to retroactive application of Amendment 782 be November 1, 2015 or later.  Amendment 788 became effective on November 1, 2014.

The data in this report represents information concerning motions for a reduced sentence pursuant to the retroactive application of Amendment 782.  The data in this report reflects all motions decided through July 24, 2015 and for which court documentation was received, coded, and edited at the Commission by August 3, 2015.

The subsequent official data indicate that, thanks to the USSC's decision to make its "drugs -2" guideline amendment retroactive, approximately 13,000 federal prisoners have had their federal drug prison sentences reduced by an average of nearly two years.

So, given the (conservative) estimate of each extra year of imprisonment for federal drug offenders costing on average $35,000, the USSC's decision to make its "drugs -2" guideline amendment retroactive so far appears to be on track to save federal taxpayers close to one billion dollars.  Kudos to the US Sentencing Commission for providing at least some proof that at least some government bureaucrats inside the Beltway will sometimes vote to reduce the size and costs of the federal government.

August 17, 2015 in Drug Offense Sentencing, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Split Ninth Circuit panel upholds federal conviction in "stash house" sting operation

The Ninth Circuit released a notable split panel decision today in US v. Pedrin, No. 11-10623 (9th Cir. Aug. 17, 2015) (available here), which rejects a notable challenge to a conviction emerging from ATF's "stash house sting" operations. This unofficial summary of the Pedrin ruling highlights why the two opinions in the case make for an interesting read:

Affirming a conviction and sentence for conspiracy to possess with intent to distribute cocaine, the panel held that the defendant’s prosecution did not result from “outrageous government conduct.”

The defendant was the target of a drug “stash house” sting, in which an undercover agent of the Bureau of Alcohol, Tobacco, and Firearms suggested that he, the defendant, and a co-conspirator join forces, rob a fictitious stash house, and split the proceeds.  Following United States v. Black, 733 F.3d 294 (9th Cir. 2014), the panel held that this reverse sting operation was not outrageous government conduct warranting the dismissal of the indictment where the co-conspirator reached out to the government, and not vice versa; the defendant readily agreed to participate in the supposed stash-house robbery; and the defendant supplied plans and materials.  These circumstances provided a sufficient basis for the government to infer that the defendant had a predisposition to take part in the planned robbery.

Dissenting, Judge Noonan wrote that the defendant was not known to the government to be predisposed to raid a stash house at the time when an agent of the ATF proposed this action to him.  Accordingly, even though the defendant did not argue entrapment, the court should hold that he was entrapped because the ATF originated the criminal design, implanted it in the defendant’s mind, and induced him to commit the crime that the government then prosecuted.

August 17, 2015 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

"Does the Calculation Matter? The Federal Sentencing Guidelines and the Doctrine of Alternate Variance Sentences"

The title of this post is the title of this notable federal sentencing paper available via SSRN authored by James Harlow. Here is the abstract:

The Federal Sentencing Guidelines play a central role in the sentencing of federal criminal defendants.  A decade ago, in United States v. Booker, the Supreme Court undercut the original purpose for the Guidelines — to bring binding structure to a previously discretionary sentencing scheme — by declaring that the Guidelines were advisory only.

Even though advisory, the Guidelines remain at the procedural heart of the sentencing process and provide “the framework for sentencing.”  All sentencing proceedings in the district court begin with the proper calculation of the advisory Guidelines range. Similarly, on review, the courts of appeals initially determine whether the sentencing process was free of procedural errors, including whether the advisory Guidelines range was correctly calculated.

However, the Guidelines are no longer the beginning and end of a sentencing hearing. A defendant’s advisory Guidelines range is but one of several important factors enumerated in 18 U.S.C. § 3553(a) that a sentencing court must consider.  In a case when other, non-Guidelines considerations clearly steered the sentencing court’s discretion, should it matter whether the advisory Guidelines range was correctly calculated in the first place?

This Article examines the Fourth Circuit’s emergent and evolving doctrine of alternate variance sentences.  Under this doctrine, a sentence will not be vacated even if the sentencing court may have erred when calculating the advisory Guidelines range.  If it is clear from the record that an advisory Guidelines issue did not influence the ultimate sentence, the appellate panel will assume any Guidelines errors are harmless and proceed to evaluate whether the sentence is substantively reasonable.  The doctrine's increasingly frequent application has a significant impact on all actors in the federal criminal sentencing process — prosecutors, defense counsel, defendants, and judges. Moreover, the doctrine implicates important debates about the meaning and effect of the Guidelines after Booker, the distribution of power between district and appellate judges in sentencing, and judicial efficiency.

August 17, 2015 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (0)

Should there really be so much left-leaning distrust for the Koch brothers' criminal justice reform work?

MaxresdefaultThe question in the title of this post emerged as read this lengthy Washington Post article about recent federal sentencing reform efforts headlined "Unlikely allies: A bipartisan push for sentencing reform unites President Obama and the Koch brothers, but many are still waiting behind bars."  Here are the excerpts that especially generated the question in the title of this post (with some links preserved):

When he gives speeches, Charles Koch says he asks those in the audience to raise their hand if they have never made a mistake that could have gotten them in serious trouble.  “I’ve never had anyone raise his or her hand,” he said in his office on the sprawling Koch Industries campus here.  “There, but for the grace of God or good luck or good fortune go all of us.”

The industrialist said his interest in overhauling the criminal justice system is not new.  For 12 years, Koch Industries, the country’s second-largest private company with a $115 billion valuation according to Forbes, has been working with the National Association of Criminal Defense Lawyers, and is providing funding to train lawyers who represent indigent defendants.  The group honored Koch Industries a few years ago with its Defender of Justice Leadership award.

He describes his focus on sentencing reform as part of his libertarian philosophy of limited government and his commitment to removing barriers of opportunity for the poor.  He said Obama should do more and do it faster to rectify the effects of mandatory minimum sentences, especially for the disadvantaged and men and women of color.

“Clemency for a few — to me, that isn’t just,” said Koch, noting that the president has not granted clemency to Angelos despite appeals to do so from a large group of bipartisan lawmakers.  “If you have 1,000 people who got unjust sentences, to give clemency to [a few] — what about the others? Why should they suffer?”

But some Democratic groups remain skeptical about any recasting of the Kochs’ image as anything other than megadonors who have long backed Republican politicians, including tea party candidates.  They’ve ridiculed the effort as “Kochshank Redemption,” playing off the name of the 1994 movie “Shawshank Redemption,” about an inmate sentenced to two life terms.

Liberal blog ThinkProgress has questioned how the Kochs can support criminal justice reform while also supporting candidates such as Wisconsin Gov. Scott Walker.  As a state legislator, Walker sponsored dozens of tough-on-crime bills, including ones to increase mandatory minimum sentences and not allow parole for many offenders.

Critics have also noted the Kochs’ support for the American Legislative Exchange Council (ALEC), an advocacy group that helped push for mandatory minimum sentences, tough three-strikes laws and privatization of the prison industry.

Liberal watchdog group Bridge Project last month released a report, “The Koch Brothers’ Criminal Justice Pump-Fake,” attacking their work on criminal justice issues, saying the Kochs’ interest in reform stems from a 97-count indictment and prosecution charging the Koch Petroleum Group and several employees with violating the Clean Air Act at its refinery in Corpus Christi, Tex.

David Uhlmann — the federal prosecutor who was head of the environmental crimes section of the Justice Department — described the lawsuit as “a classic case of environmental crime: illegal emissions of benzene — a known carcinogen — at levels 15 times greater than those allowed under federal law.” “Koch pleaded guilty and admitted that its employees engaged in an orchestrated scheme to conceal the benzene violations from state regulators and the Corpus Christi community,” said Uhlmann, now a law professor at the University of Michigan Law School.

Uhlmann, along with other critics, are reluctant to accept the Kochs’ support for criminal justice reform at face value, and believe there must be a deeper political agenda — possibly to include the later pursuit of legal reforms that will benefit corporations. “Their advocacy for less draconian drug laws could prove to be a stalking horse for their long-standing efforts to protect corporate criminals and roll back environmental, health and safety laws,” he said.

Koch Petroleum was fined $10 million in the Corpus Christi case and ordered to pay another $10 million to fund environmental projects. In a plea agreement, the charges were dropped against the four employees. In Charles Koch’s opinion, the federal case was unjust. “We had four innocent employees indicted,” he said. “Okay, the company can handle it. Okay, we pay a fine and so on. What’s so upsetting is seeing what it did to them personally and their families.”

And Mark Holden, Koch Industries’ general counsel and senior vice president, said the company “was railroaded” and its experience in the Corpus Christi case “is what really started us working on criminal justice issues.”

Of the skeptics, Holden said, “People are going to believe what they want to believe. We’ve been working on these issues for 12 years now.  Charles has had these views his whole life, by and large.  Just judge us by our actions. We’re in this for the long haul.” In a nod to the moment, Holden has a T-shirt in his office with the words: “Koch. Not Entirely Awful,” playing off the words of a recent article.

Van Jones, the president of #Cut50, a group seeking to cut the incarcerated population by 50 percent over the next 10 years, and the former special adviser on Obama’s Council on Environmental Quality, defends the Kochs.

“In a democracy, when you disagree with somebody, you should really work hard against them,” Jones said. “We oppose the Koch agenda when it comes to their pro-polluter, extremist agenda for the environment, and we fight real hard.  But when you agree with them, you should work really hard alongside them.  On criminal justice reform, we’re very proud to work alongside them.”

“And,” Jones added, “I never met a single person in prison who said, ‘I sure hope the Republicans and the Koch brothers don’t help me.’ ”

This final quote from Van Jones highlights one reason why I am such a big supporter of the Kochs' criminal-justice reform efforts.  But, perhaps even more significantly, because much of my own affinity for modern sentencing refrom comes from a libertarian distrust-for-big-government, dislike-of-wasteful-government-spending foundation, I see the Kochs' efforts here as a natural out-growth of their broader philosophy and not a "pump-fake" in any way.  But maybe I am just naive in the ways of the world, and perhaps others have different views on the question in the title of this post.

Some prior related posts on Koch family efforts in support of criminal justice reform:

August 17, 2015 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (9)

Sunday, August 16, 2015

"Sex Offenders Locked Up on a Hunch"

The title of this post is the headline of this lengthy New York Times editorial. Here are excerpts:

The essence of the American criminal justice system is reactive, not predictive: You are punished for the crime you committed.  You can’t be punished simply because you might commit one someday.  You certainly can’t be held indefinitely to prevent that possibility.

And yet that is exactly what is happening to about 5,000 people convicted of sex crimes around the country.  This population, which nearly doubled in the last decade, has completed prison sentences but remains held in what is deceptively called civil commitment — the practice of keeping someone locked up in an institution for months, years or even decades for the purpose of preventing possible future offenses.

The authorities have the power to detain people with mental illnesses or disorders who cannot function independently, or who pose a danger to themselves or others.  But since the early 1990s, this power has been used increasingly to imprison one distinct group: sex offenders....

In a decision in June, a federal judge ruled that Minnesota’s civil-commitment law for sex offenders violates the Constitution.  Federal District Judge Donovan Frank said the law imposes “a punitive system that segregates and indefinitely detains a class of potentially dangerous individuals without the safeguards of the criminal justice system.”  For example, local prosecutors — not clinicians or mental health professionals — choose whether to seek continued detention based on a screening test that claims to predict a person’s likelihood of committing another sex offense, though there is no clear evidence such tests are accurate.

Yet based largely on those screening tests, more than 700 Minnesotans who have completed their prison sentences are locked up, at an annual cost of more than $120,000 per person — triple the cost of prison.  This civil commitment rate is by far the highest in the country. Some people have been held for more than 20 years.  During that time, not one person has been released from the program unconditionally.

A central flaw, Judge Frank said, is that Minnesota does not perform reassessments of risk, so the burden lies with the detainees to prove they no longer pose a danger.  On Aug. 12, Judge Frank ordered the state to come up with constitutionally valid reforms by the end of September, or he “may demand a more forceful solution.”

Despite the public perception that all sex offenders are recidivists — a belief that drove these laws in the first place — sexual re­offense rates are in fact lower than those for other crimes (though an unknown number of sex crimes go unreported).  In addition, while some states’ laws make it easier for detainees to earn their way out, 30 states have no civil­-commitment laws at all, and there is no evidence that a state’s sexual­-violence rate is affected by whether it has such a law....

Public safety would be better served if resources were directed toward community supervision and other services for those leaving prison, rather than toward skirting the edges of the Constitution to keep them locked away.

August 16, 2015 in Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (12)

Lots of important (and challenging) questions raised at The Crime Report

Regular readers are likely now getting regularly tired of my suggestion that The Crime Report be a regular read for all sentencing fans.  But I always find the mix of news and commentary at that site to be a terrific means to consider and ponder lots of important and hard criminal justice questions, and these three recent Crime Report pieces with questions for headlines reinforce this reality:

August 16, 2015 | Permalink | Comments (0)

New York Times magazine highlights link between bail and pleas

Images (10)This cover story from today's New York Times magazine is headlined "The Bail Trap," and this pull-out quote appearing in the article captures why sentencing fans ought to pay attention to bail reform efforts: "Across the criminal-justice system, bail acts as a tool of compulsion, forcing people who would not otherwise plead guilty to do so."  Here is a bit more from a lengthy article that merits a full read:

In 1689, the English Bill of Rights outlawed the widespread practice of keeping defendants in jail by setting deliberately unaffordable bail, declaring that "excessive bail shall not be required, nor excessive fines imposed."  The same language was adopted word for word a century later in the Eighth Amendment to the United States Constitution.

But as bail has evolved in America, it has become less and less a tool for keeping people out of jail, and more and more a trap door for those who cannot afford to pay it. Unsecured bond has become vanishingly rare, and in most jurisdictions, there are only two ways to make bail: post the entire amount yourself up front — what’s called "money bail" or "cash bail" — or pay a commercial bail bondsman to do so. For relatively low bail amounts — say, below $2,000, the range in which most New York City bails fall — the second option often doesn’t even exist; bondsmen can’t make enough money from such small bails to make it worth their while.

With national attention suddenly focused on the criminal­-justice system, bail has been cited as an easy target for reformers.  But ensuring that no one is held in jail based on poverty would, in many respects, necessitate a complete reordering of criminal justice. The open secret is that in most jurisdictions, bail is the grease that keeps the gears of the overburdened system turning.  Faced with the prospect of going to jail for want of bail, many defendants accept plea deals instead, sometimes at their arraignments.  New York City courts processed 365,000 arraignments in 2013; well under 5 percent of those cases went all the way to a trial resolution.  If even a small fraction of those defendants asserted their right to a trial, criminal courts would be overwhelmed.  By encouraging poor defendants to plead guilty, bail keeps the system afloat....

In early 2013, Jonathan Lippman, chief judge of the State of New York, decided that the business­as­usual approach to setting bail could not be tolerated any longer. "We still have a long way to go before we can claim that we have established a coherent, rational approach to pretrial justice," he said in his annual State of the Judiciary address. "Incarcerating indigent defendants for no other reason than that they cannot meet even a minimum bail amount strips our justice system of its credibility and distorts its operation." Lippman sent a package of proposed legislation to reduce the reliance on cash bail to lawmakers in Albany, and he lobbied for the reforms hard in the press. His efforts went nowhere. "Zero," Lippman says, shaking his head. "Nothing." Lawmakers had no appetite for bail reform.

Two years later, that may be changing. This summer, the New York City Council took a tentative step toward reform by earmarking $1.4 million for a citywide fund to bail out low­-level offenders. The fund, proposed with much fanfare by Speaker Melissa Mark-­Viverito in her State of the City address in February, is modeled on a number of smaller bail funds around the city. The oldest of these, the Bronx Freedom Fund, was established in 2007 in association with the Bronx Defenders, a public­-defender organization. The founders shut down the fund after only a year and a half, after a judge argued that it was effectively operating as an unlicensed bail­bond business. But before they did, the fund bailed out nearly 200 defendants and generated some illuminating statistics. Ninety-­six percent of the fund’s clients made it toevery one of their court appearances, a return rate higher even than that of people who posted their own bail. More than half of the Freedom Fund’s clients, now able to fight their cases outside jail, saw their charges completely dismissed. Not a single client went to jail on the charges for which bail had been posted. By comparison, defendants held on bail for the duration of their cases were convicted 92 percent of the time. The numbers showed what everyone familiar with the system already knew anecdotally: Bail makes poor people who would otherwise win their cases plead guilty.

August 16, 2015 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing | Permalink | Comments (1)

Saturday, August 15, 2015

"The Circuit Split on Johnson Retroactivity"

The title of this post is the headline of this effective new Casetext analysis of the intricate lower-court legal story already emerging in the wake of the Supreme Court's big Johnson Armed Career Criminal Act ruling declaring the residual clause of ACCA void for vagueness.  Authored by Leah Litman, the full piece merits a full read, and here is how it gets started:

In Johnson v. United States, the Supreme Court held that the “residual clause” of the Armed Career Criminal Act (ACCA) is unconstitutionally vague.  Defendants therefore can no longer be sentenced under the residual clause to a 15-year mandatory minimum term of imprisonment.  But what about defendants who have already been sentenced under ACCA’s residual clause?  I predicted in April, before Johnson was decided, that determining who can be resentenced in light of Johnson would be fraught with difficulties.  The courts of appeals have begun to sort through this question, and I’ll highlight one such case in this post.

In In re Rivero, the Eleventh Circuit purported to decide an important question that affects who can be resentenced in light of Johnson — namely, whether the Supreme Court has made Johnson retroactive.  Generally, new rules of constitutional law do not apply to convictions that have become final.  But certain “retroactive” rules apply to convictions that have become final; prisoners can raise claims that are based on retroactive rules in post-conviction review — review that occurs after a defendant’s conviction has become final.  If a prisoner has already filed one petition for post-conviction review, he may file a second or successive petition for post-conviction review only if the Supreme Court has made a rule retroactive (as opposed to a court of appeals or district court doing so).

I said that the Eleventh Circuit “purported” to decide whether the Supreme Court has made Johnson retroactive because the Eleventh Circuit’s decision is a bit quirky.  Most importantly, the defendant wasn’t actually sentenced under ACCA — he was sentenced under an analogous provision of the Sentencing Guidelines (the “career-offender Guideline”).  But the Eleventh Circuit “assumed” that Johnson applied to the career-offender Guideline and that the career-offender Guideline was therefore unconstitutional. Working off that assumption, the Eleventh Circuit went out of its way to disagree with the Seventh Circuit on whether the Supreme Court has made Johnson retroactive.

Rivero has thus created a potentially unnecessary circuit split, as well as some uncertainty about who can be resentenced in light of Johnson.  I’ll offer some thoughts on how narrowly or broadly Rivero can be read. (Spoiler: I think it should be read pretty narrowly.)

Some prior related posts:

August 15, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Friday, August 14, 2015

In Ohio, "State prisons chief calls for softened hearts"

The quote in the title of this post is the headline of this local AP story about notable recent comments from the Director of Ohio's Department of Rehabilitation and Correction. Here are the details:

Ohio’s prisons chief is calling for more compassion toward wrongdoers as he continues a push to reduce the state’s inmate population.  Too often an “us vs. them” mentality gets in the way of instituting programs to prevent people from going to prison and to keep former inmates from returning, corrections director Gary Mohr told a legislative prison-inspection committee on Thursday in remarks that at times were closer to a sermon than a speech.

“Our hearts need to be softened to some degree,” said Mohr, director of the Department of Rehabilitation and Correction.  “We have to think about the sense of forgiveness.” When Mohr started his prisons career 41 years ago, Ohio had 8,300 inmates in seven prisons, including 291 female inmates.  The total now is holding steady at about 50,000 in 27 prisons, including 4,200 female prisoners.

The state’s incarceration rate was 5.3 per 100,000 citizens, compared with 68.1 today, said Mohr in a 40-minute speech to the bipartisan Correctional Institution Inspection Committee.  Mohr is also dissatisfied that 1 in 4 state employees now work in adult corrections.

Society’s tough-on-crime attitude doesn’t match statistics showing violent crime at historic lows, he added.  But Mohr also sees signs of optimism as commitments from the state’s biggest counties drop thanks to the growth of community alternatives in urban areas.  The next challenge is extending such programs to the 82 counties where commitments have increased.  The state is taking advantage of programs seeking to better integrate prisoners into society, as well, Mohr said. And the expansion of Medicaid will help inmates as they re-enter communities.

Among other issues Mohr said:

• 8,400 Ohio inmates spend less than a year in prison, a short period of time likely better served in communities in some form.

• 1 in 4 inmates is a probation violator, a trend that needs to be reversed by giving judges more discretion when ex-offenders make mistakes.

• The high population of some Ohio prisons raises security concerns.

Under Gov. John Kasich, the state has made efforts to slow the inmate population by easing penalties on first-time offenders, providing some early-release opportunities and boosting community-based options.  At the same time, the state’s painkiller- and heroin-addiction epidemic has led to a rash of thefts, burglaries and other crimes that have increased prosecutions.

August 14, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Thursday, August 13, 2015

Fourth Circuit reverses district court's conclusion that Eighth Amendment precluded mandatory LWOP for piracy

Thanks to a helpful reader, I saw that the Fourth Circuit today handed down a panel decision in US v. Said, No. 14-4420 (4th Cir. Aug. 13, 2015) (available here), which reverses a district court's prior ruling that the Eighth Amendment precluded the imposition of mandatory LWOP federal sentences on defendants convicted of piracy.  The main opinion in Said ends its Eighth Amendment analysis this way:

Victims of piracy are robbed of their vessels, kidnapped, held hostage, and even tortured and murdered, while pirates are often able to find safe refuge in the territorial waters off Somalia and collect multi-milliondollar ransom payments.  In these circumstances, we agree with the government “that Congress could with reason conclude [that piracy] calls for the strong medicine of a life sentence for those who are apprehended.” See Br. of Appellant 39.

We are satisfied that “the relationship between the gravity of [the defendants’] offenses and the severity of [their proposed] punishment fails to create the threshold inference of gross disproportionality that is required” to satisfy prong one of the Eighth Amendment analysis.  See Cobler, 748 F.3d at 580.  Thus, without moving to prong two, we rule that the district court erred in invalidating § 1651’s mandatory life sentence as to these defendants and is obliged to impose such sentences on remand.

Judge Davis wrote an intriguing little concurring opinion urging Congress to no longer mandate LWOP sentences in all piracy cases because "not all piracy offenses are equal in severity, in heinousness, and in the dire consequences visited on innocent seafarers."  In so doing, Judge Davis dropped this notable footnote:

Indeed, in this case, Mr. Ibrahim, who was “the group’s leader” and who “led the new mission,” ante at 7, would seem to have earned a life sentence.  But he avoided that fate through the magic of “substantial assistance” and the fiction of “acceptance of responsibility,” the coins of the federal prosecutorial realm.  The inference is unavoidable that it is not really those who participate in piracy who receive a life sentence upon conviction (as we imagine Congress might believe), but rather those who are convicted after electing to go to trial.

August 13, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (10)

Connecticut Supreme Court follows legislature's prospective DP repeal with retrospective state consitutional abolition

The Connecticut Supreme Court today finally resolved, via a split vote, what is to become of the other capital murderers on te state's death row in the aftermath of the legislative repeal of death penalty back in 2012. Here is the lengthy paragraph that starts the lengthy marjority opinion in Connecticut v. Santiago, No. SC 17413 (Conn. Aug 13, 2015) (available here):

Although the death penalty has been a fixture of Connecticut’s criminal law since early colonial times, public opinion concerning it has long been divided.  In 2009, growing opposition to capital punishment led the legislature to enact Public Acts 2009, No. 09-107 (P.A. 09-107), which would have repealed the death penalty for all crimes committed on or after the date of enactment but retained the death penalty for capital felonies committed prior to that date.  Then Governor M. Jodi Rell vetoed P.A. 09-107, however, and it did not become law.  Three years later, in 2012, the legislature passed a materially identical act that prospectively repealed the death penalty; see Public Acts 2012, No. 12-5 (P.A. 12-5); and, this time, Governor Dannel P. Malloy signed it into law.  During the public hearings on both P.A. 09-107 and P.A. 12-5, supporters argued that the proposed legislation represented a measured and lawful approach to the issue.  Others raised serious concerns, however, as to whether, following a prospective only repeal, the imposition of the death penalty would violate the state constitutional prohibition against cruel and unusual punishment.  Perhaps most notably, Chief State’s Attorney Kevin T. Kane, who serves as this state’s chief law enforcement officer and represents the state in the present case, testified before the legislature that such a statute could not pass constitutional muster.  Additionally, the Division of Criminal Justice submitted written testimony, in which it advised the legislature that a prospective only repeal would be a "fiction" and that, "[i]n reality, it would effectively abolish the death penalty for anyone who has not yet been executed because it would be untenable as a matter of constitutional law . . . . [A]ny death penalty that has been imposed and not carried out would effectively be nullified."  In the present appeal, the defendant, Eduardo Santiago, raises similar claims, contending that, following the decision by the elected branches to abolish capital punishment for all crimes committed on or after April 25, 2012, it would be unconstitutionally cruel and unusual to execute offenders who committed capital crimes before that date.  Upon careful consideration ofthe defendant’s claims in light ofthe governing constitutional principles and Connecticut’s unique historical and legal landscape, we are persuaded that, following its prospective abolition, this state’s death penalty no longer comports with contemporary standards of decency and no longer serves any legitimate penological purpose.  For these reasons, execution of those offenders who committed capital felonies prior to April 25, 2012, would violate the state constitutional prohibition against cruel and unusual punishment.

Over at Crime & Consequences, Kent has this post in reaction to the Santiago ruling titled "A Broken Promise In Connecticut."

August 13, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (23)

What can and should voters know about the criminal justice impact of marijuana prohibition as they consider repeal?

I will be off-line for most of the rest of the day in order to have a meeting with a retired Ohio judge (and perhaps some others) to discuss the question that is the title of this post.  The question has become especially salient for Ohio voters today: as detailed in this post at MLP&R, as of yesterday it became official that, in less than 90 days,  Ohio voters will be deciding whether to legalize marijuana in the Buckeye State for recreational and medical use.

I have spent a fair bit of time trying to rigorously assess, for Ohio and other jurisdictions, just how to measure and describe the "criminal justice footprint" of modern marijuana prohibition and how that footprint can be impacted by marijuana reform.  But while I am off-line today, I would be grateful to hear from readers just what they would be eager to know, as a voter considering a reform proposal, about how the criminal justice might change (or not change) due to repeal of marijuana prohibition in a jurisdiction.

August 13, 2015 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1)

Split Eleventh Circuit panel splits from Seventh Circuit approach on Johnson retroactivity

I had an inkling it might not take too long for lower courts to become divided on what the Supreme Court's big Johnson Armed Career Criminal Act ruling, which declared the residual clause of ACCA was void for vagueness, could and should mean for long-ago imposed sentences.  And, sure enough, less than seven weeks after the Johnson ruling, we already have a big circuit split.

As detailed in this post last week, the Seventh Circuit in Price v. US, No. 15-2527 (7th Cir. Aug. 4, 2015) (available here), decided that a defendant serving an ACCA-influenced sentence of 20+ years imposed way back in 2006 could bring a new, successor 2255 motion based on the Johnson ruling.  But, now as flagged effective via this post at the "Southern District of Florida" blog, a divided three-judge panel of the the Eleventh Circuit had a different take on this issue in In re Rivero, No. 15-13089 (11th Cir. Aug. 12, 2015) (available here). Here is a key passage from the marjority opinion in Rivero:

We acknowledge that one of our sister circuits has held that Johnson applies retroactively to decisions on collateral review, but we are unpersuaded by that decision. See Price v. United States, No. 15-2427 (7th Cir. Aug. 4, 2015).  In Price, the Seventh Circuit explained that “[t]here is no escaping the logical conclusion that the [Supreme] Court itself has made Johnson categorically retroactive to cases on collateral review” because “[a] defendant who was sentenced under the residual clause necessarily bears a significant risk of facing a punishment that the law cannot impose upon him.”  Id. at *7.  We disagree.  We can “escap[e] th[at] logical conclusion” because Congress could impose the punishment in Johnson if Congress did so with specific, not vague, language.

Our dissenting colleague assumes that the new rule announced in Johnson also applies to the residual clause of the career offender enhancement in the Sentencing Guidelines, U.S.S.G. § 4B1.2(a)(2), but that assumption makes clear that precedents of the Supreme Court do not “necessarily dictate,” In re Anderson, 396 F.3d at 1339 (internal quotation marks and citation omitted), that Rivero may file his second or successive motion to vacate, set aside, or correct his sentence.  See Dissenting Op. at 15 n.2.  The Supreme Court has never held that the Sentencing Guidelines are subject to a vagueness challenge. And four of our sister circuits have held that the Sentencing Guidelines — whether mandatory or advisory — cannot be unconstitutionally vague because they “do not establish the illegality of any conduct” and are “designed to assist and limit the discretion of the sentencing judge.” United States v. Tichenor, 683 F.3d 358, 363–66, 365 n.3 (7th Cir. 2012); see also United States v. Smith, 73 F.3d 1414, 1418 (6th Cir. 1996); United States v. Pearson, 910 F.2d 221, 223 (5th Cir. 1990); United States v. Wivell, 893 F.2d 156, 159–160 (8th Cir. 1990).  But the absence of Supreme Court precedent provides an alternative ground for why we must deny Rivero’s application for leave to file a second or successive motion.

Especially because the Justice Department appears to be supporting Johnson retroactivity, I suspect we may end up with more circuits lining up behind Price than behind Rivero in the weeks ahead. But whatever transpires in other lower courts, it is now already clear that SCOTUS is going to need to take up Johnson's application before too long.

Some prior related posts:

August 13, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (3)

New juve research suggests punishment certainty matters over severity to achieve deterence

This recent posting via the Juvenile Justice Information Exchange, titled "Report: Certainty, Not Severity, Key in Deterring Juvenile Crime," spotlights recent research on juvenile punishment's impact. Here are excerpts:

Researchers first reported several years ago that a major longitudinal study of serious adolescent offenders showed the severity of their punishments had little effect on their recidivism rates. Digging into the data, the researchers also found that teenagers who commit serious crimes do respond to the threat or risk of sanctions, though not in a one-size-fits-all way.

In a new report released by the federal Office of Juvenile Justice and Delinquency Prevention [available here], researchers say the findings point to the need to devote resources to change risk perceptions, rather than prisons.

The report, “Studying Deterrence Among High-Risk Adolescents,” is one of several OJJDP bulletins based on research from “Pathways to Desistance,” the study that followed more than 1,300 young offenders for seven years after their court involvement.

The resulting research has found no meaningful reduction in offending or arrests due to more severe punishment, such as correctional placement versus probation or longer periods of institutional placement, the researchers said. But it did find that the certainty of punishment can play a role in deterring future crimes. Among adolescents who commit serious offenses, “recidivism is tied strongly and directly to their perceptions of how certain they are that they will be arrested,” the report said.

Edward Mulvey, the principal investigator on the Pathways study, said the idea that adolescents respond to the certainty of punishment, not severity, has found an audience with some policymakers. They are asking whether states should have to justify why the criminal justice system should hold an adolescent offender for a long time....

The new bulletin looks at how young offenders evaluate the risks of crime, which has a deterrence effect. Young people slightly increased their risk perceptions in response to an arrest, it found. The researchers said, though, there is no standard response to the certainty of punishment because risk perceptions vary based on individuals’ prior experiences or history of offenses and other factors.

August 13, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Data on sentencing, Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4)

Wednesday, August 12, 2015

Lots of great reads via The Marshall Project

I really enjoy all the work being done by The Marshall Project, and this collection of recent items from the site highlights why sentencing fans should be making regular visits there:

August 12, 2015 in Death Penalty Reforms, Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

"Make Them Hear You: Participatory Defense and the Struggle for Criminal Justice Reform"

The title of this post is the title of this interesting paper available via SSRN authored by Janet Moore, Marla Sandys and Raj Jayadev. Here is the abstract:

This Article introduces participatory defense as a powerful new model for improving public defense and challenging mass incarceration.  This grassroots movement empowers the key stakeholders — people who face criminal charges, their families, and their communities — to become change agents who force greater transparency, accountability, and fairness from criminal justice systems.  After introducing the model’s core principles and goals, the Article offers innovative analyses from doctrinal, theoretical and empirical perspectives.

First, the Article connects participatory defense with the crisis-ridden history of the constitutional right to counsel, including that doctrine’s roots in the Due Process right to be heard.  Second, the Article frames participatory defense within a new theory of criminal justice that emphasizes equality in the generation and administration of law. Finally, core principles of participatory defense are applied in cutting-edge empirical research that amplifies the voices of the key stakeholders in system assessment and offers new support for reform litigation and policy advocacy. 

August 12, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

New Hampshire enacts novel law requiring defendant's presence in courtroom for victim impact statements

As reported in this Reuters piece, headlined "New Hampshire to make criminals face victims' families at sentencing," one ugly sentencing case has lead the Granite State to enact a novel sentencing procedure law. Here are the details:

New Hampshire Governor Maggie Hassan on Tuesday signed a law that requires convicted criminals to appear in court at sentencing when victims’ families and friends are given the opportunity to express their pain. The law, believed to be the first of its kind in the United States, was proposed after a man convicted last year of murdering a 19-year-old college student asked not to attend his sentencing, saying he didn't want to hear the victim's family “yell and whine and bitch and moan.”

In the end, convicted murderer Seth Mazzaglia, 33, dropped the request and attended the sentencing, where family members of his victim, Elizabeth "Lizzy" Marriott, expressed profound grief and anger toward him.

Her father, Bob Marriott, was among several relatives of crime victims who backed the bill. At the bill-signing ceremony, Hassan praised Marriott “for speaking up on behalf of his daughter Lizzy, for his family, and for all families impacted by crime.”...

The signing comes almost a year to the day after Mazzaglia was sentenced to life in prison without parole for first degree murder involving sexual assault, among other crimes. He was accused of having his girlfriend lure Marriott to their apartment so he could have sex with her. Prosecutors alleged Mazzaglia strangled Marriott after she rejected his sexual advances and then raped her lifeless body.

The key text of this new law, which can be found here, provides that the "defendant shall personally appear in court when the victim or victim's next of kin addresses the judge, unless excused by the court." The final phrase of this provision, which allows the court to excuse the defendant, confirms my instinct that this new sentencing law is much more about symbolism than substance. That said, especially because the symbolism of the sentencing process is often quite important to crime vicitms, this novel law strikes me as a beneficial way to give victims that much more respect in a sentencing process that sometimes forgets about their various concerns.

August 12, 2015 in Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (0)

Tuesday, August 11, 2015

"Does Plea Bargaining Add to Criminal Court Caseloads?"

The question in the title of this post is the title of this new commentary by LawProf Darryl Brown at Casetext.  Here are excerpts:

Crime rates have been declining for twenty years, and more recently the caseloads in many state and federal courts have been declining as well, although somewhat more modestly. Yet as courts got a little breathing room, the rate of guilty pleas has not declined. Instead, in the federal system and some states, guilty pleas increased—usually from an already-high rate (as a share of total convictions) of 90 or 95 percent.  To legal scholars who have examined plea bargaining for decades, this was not a surprise.  Studies of courts in the 1970s found that plea bargaining did not decline even when caseloads for a local court system sharply fell, leaving prosecutors and judges with proportionately more time to handle the rest.  Federal plea bargaining, it now seems clear, increased as prosecutors gained more bargaining leverage from mandatory sentencing laws and federal guidelines that greatly restricted judges’ sentencing discretion.

Plea bargaining, in short, is not simply of function of crime rates and the criminal caseloads that result from them. It depends many things: whether the parties want to reach a deal, strength of the evidence, and — far from least — how much bargaining leverage the law gives to prosecutors. To say merely that “plea bargaining is essential” begs the real question.  It doesn’t answer whether all plea bargains we now achieve — 95 percent in federal courts — are compelled by caseloads and strapped budgets.  Plea bargaining may be essential, but how many — or what percentage of — cases must be resolved by guilty pleas rather than trials?...

Discretionary decisions play out differently when courts and prosecutors can handle more cases thanks to the efficiency of plea bargaining.  If it doesn’t “cost” as much to charge and convict, it is more tempting to do so.  Police know courts can process some additional petty offenses, and prosecutors know that they can handle more as well.  This doesn’t have to be a conscious recognition in every officials’ mind ... [but] plea bargaining helps to create a new set of norms or baselines — about how many cases prosecutors and judges ought to handle, about which defendants ought to plead guilty, and perhaps about which events deserve to be charged as crimes.  Cases with evidence so weak that a trial conviction is highly uncertain now look worth the effort because, with hard-ball right plea bargaining, they can be turned into convictions.  After years of achieving 95 percent of convictions through guilty pleas, a court system that suddenly had trials in 15 percent of cases would look like it is doing something wrong.  The defendants who insisted on those additional trials would seem like ones whose cases didn’t “deserve” a trial and, consequently, that merit a harsher sentence because they had one.

All of these things are hard to measure.  Empirical researchers have not yet demonstrated that plea bargaining actually drives up the number of cases in criminal courts.  It may be the kind of phenomena that simply can’t be reliably measured. But ... recall that criminal caseloads continue to increase long after crime began to decline in the early 1990s.  More tellingly, Professor John Pfaff has found that evidence that, in many states, prosecutors file charges a higher percentage of cases they receive from police than they did twenty or thirty years ago.  That is, they use their discretion less often to decline to prosecute.  Reasons for this are unclear.  Maybe police now collectively send prosecutors case reports backed by stronger evidence.  Maybe the current generation of prosecutors has tougher-on-crime views than the previous generation did.  But we ought to be concerned that we have made plea bargaining so common, and so efficient, that its effect has not simply been to enable the criminal justice system to process more cases without more judges and prosecutors.  There is a good chance that plea bargaining has also increased the number of criminal cases in the system.

That might be good thing if crime was increasing.  Or if we simply couldn’t afford to increase funding for prosecutors and judges at the same that we do for police and prisons.  Or if we placed no social and political value on trial by jury.  But none of that is true.  What is true is that, as we have increased the rate of guilty pleas from already high levels of 75 or 85 percent of convictions to 90 or 95 percent, the United States also created the single most punitive criminal justice system, with by far the highest incarceration rate, in modern world history.  That alone ought to be reason to worry that our exceedingly efficient system of plea bargaining has triggered “rebound effects.”

August 11, 2015 in Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7)

Thanks to prior commutation, Missouri marijuana lifer now to get paroled

As reported in this Huffington Post piece, headlined "Man Who Was Serving Life In Prison For Marijuana To Be Set Free," there has been a notable development in a notable drug sentencing case in Missouri. Here are the details:

Jeff Mizanskey, a 61-year-old Missouri man who was serving life in prison for nonviolent marijuana offenses, will be set free in a matter of days, his attorney confirmed Monday to The Huffington Post. "We were notified today that he will be granted parole and be released within '10 to 25 days,'" lawyer Dan Viets said about the Missouri Department of Corrections' decision. Mizanskey had met with the parole board just last Thursday.

After two decades in prison, Mizanskey became eligible for parole in May when Missouri Gov. Jay Nixon (D) commuted his life sentence, while granting pardons to five other nonviolent offenders who had already completed their punishments. Parole was an option that Mizanskey did not have previously because he had been sentenced as a "prior and persistent drug offender" under Missouri's three strikes law, which was repealed last year.

All three of Mizanskey's offenses involved marijuana. He was given a life sentence after a conviction for attempting to sell about six pounds of pot in a 1993 police sting operation.

A Change.org petition seeking clemency for Mizanskey had received nearly 400,000 signatures. "Great news everyone... Jeff is coming home this month!" said a post Monday on the Free Jeff Mizanskey Facebook page. "We want everyone to know how greatful [sic] we are for all the support received throughout this whole ordeal."

Marijuana offenses, mainly involving simple possession, account for roughly half of all drug-related crimes. According to a recent report from the American Civil Liberties Union, 88 percent of the more than 8 million marijuana arrests between 2001 and 2010 were for possession alone. There were more arrests in the U.S. for marijuana possession in 2011 than for all violent crimes combined, according to the FBI's uniform crime report. The ACLU report also found significant racial disparities in the arrest patterns. While black and white Americans use marijuana at about the same rates, blacks were nearly four times more likely than whites to be arrested for marijuana during the years examined.

August 11, 2015 in Drug Offense Sentencing, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

"Buying Access: How Corporations Influence Decision Makers at Corrections Conferences, Trainings, and Meetings"

The title of this post is the title of this new report issued by In the Public Interest.  Here is the report's executive summary:

Private corrections companies, which contract with corrections departments and facilities to oversee and provide services to incarcerated people, make up a multibillion-dollar industry.  Every year, they devote resources to building influence with decision makers in order to find and capitalize on new business opportunities.  One key avenue of influence is through professional corrections associations, which are non-profit organizations that support corrections officials, including wardens, administrators, state Department of Corrections staff, sheriffs, and others through events, trainings, and public policy advocacy.

This report first details how companies spend millions of dollars sponsoring conferences, paying vendor fees, and providing other funding to gain access to the professional corrections associations.  This report then shows how corrections companies leverage this access in ways that can influence decision makers and benefit the companies’ bottom lines.

Considering corrections companies’ track records of providing low-quality services that harm prisoners, communities, and taxpayers, the influence they exert through professional corrections associations is cause for concern.

The research in this report is based on limited information that professional corrections associations make publicly available.  Consequently, the report’s findings constitute only a portion of the total contributions made by companies and the subsequent opportunities they receive to influence decision makers.

Private companies make contributions to professional corrections associations. In 2014, sponsors, vendors, corporate partners, and other non-individual entities contributed at least $3 million to five of the largest professional corrections associations, including the American Correctional Association, the American Jail Association, the Association of State Correctional Administrators, the Corrections Technology Association, and the National Sheriffs’ Association.

In return, corrections contractors are able to build relationships with and influence decision makers in key ways:

  • Corrections companies send executives and staff to professional corrections association conferences to meet decision makers. Many companies receive lists of attendees, allowing the corporate staff to target certain corrections officials.

  • Corrections companies lead trainings and workshops at conferences. Often times, companies will directly market goods and services.

  • Corrections companies host conference events where their executives and marketing staff meet with and give speeches to corrections officials.

  • Corrections companies market their products and services at conference vendor booths to identify potential government customers and generate leads.

  • Corrections companies advertise on conference materials, such as the program books, hotel room key cards, tote bags, and take-home mugs. This marketing encourages officials to consider the companies’ products and services when making purchasing and outsourcing decisions.

August 11, 2015 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Urban Institute creates intriguing on-line "Prison Population Forecaster"

I just learned about this notable new on-line resource from the Urban Institute, which it calls "The Prison Population Forecaster." Here is how the tool is described at the site:

Roughly 2.2 million people are locked up in prison or jail; 7 million are under correctional control, which includes parole and probation; and more than $80 billion is spent on corrections every year.

Research has shown that policy changes over the past four decades have put more people in prison and kept them there longer, leading to exponential growth in the prison population even while crime has dropped to historic lows.

But despite widespread agreement that mass incarceration is a serious problem, the national conversation is light on details about what it will take to achieve meaningful and sustainable reductions. What do states actually need to do roll back their prison populations by 10 percent? 20 percent? 50 percent?

To advance the policy conversation, decisionmakers and the public need to know the impact of potential policy changes. Our Prison Population Forecaster can estimate the effect, by state, of policies that aim to reduce prison admissions and length of stay for the most common types of offenses.

The tool currently uses data from 15 states, representing nearly 40 percent of the national prison population, to forecast population trends and project the impact of changes on rates of admission or lengths of stay in prison.

Using the tool, we can see that in some states, limiting prison admissions to only new crimes and diverting parole and probation revocations will substantially reduce the number of people behind bars. Other states can stem prison growth by tackling how they address drug and property offenses. Still others may discover that modest reductions in time served for violent offenses are necessary.

This forecasting tool paves the way for a more productive conversation about the need for tailored reforms that address the unique drivers of mass incarceration in each jurisdiction.

August 11, 2015 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Monday, August 10, 2015

"Just Facts: America’s Non-Existent 'Spike in Crime'"

The title of this post is the headline of this interesting discussion and analysis by Matthew Friedman over at The Brennan Center for Justice. I recommend a full read of the post to get all the important details (and to see how LeBron James' free-throw shooting record is incorporated into the discussion). Here is how the post starts and ends to whet appetites:

Newspapers lately have been filled with disturbing headlines about “spikes in crime.”  In March, the New York Daily News wrote, “The murder rate in New York City has spiked an alarming 20% in the first two months of the year, prompting NYPD brass to rethink strategy to curb the deadly trend.”  The Los Angeles Times reported “LAPD struggles with spike in violent crime, shootings.”  Even the BBC asked “Why has the murder rate in some US cities suddenly spiked?”

These headlines, however, conflict with statistical data showing that we are actually enjoying some of the lowest crime rates in more than half a century.  Why then do we continue to see headlines that seem to say the exact opposite?  Moreover, how is it that most Americans inaccurately believe that crime is on the rise?

Well, when we don’t read past the headlines, it is hard to see the forest for the trees.  A closer analysis of crime over time provides a less alarming and more accurate picture of crime trends than the short-term analysis headline writers often rely on....

Data shows that there is no nationwide crime wave washing over our cities. And there is no compelling evidence that one is imminent either.  New York, like many other cities around the country, is experiencing an historic ebb in most types of crime.  So readers beware, don’t take headlines at face value.  Startling headlines need not lead to dire conclusions.

August 10, 2015 in National and State Crime Data | Permalink | Comments (2)

Could USSC's proposed amendment dealing with SCOTUS Johnson ruling be made retroactive (and how many federal prisioners could then get reduced sentences)?

Readers know that I have been making much of the potential practical impact of the Supreme Court's big ruling in Johnson v. United States, 135 S. Ct. 2551 (June 26, 2015) (available here).  Johnson declared that that a key clause defining violent offenses in the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws."   I have made much of the Johnson ruling's potental impact in part because its holding is inevitably going to echo for quite some time — in some ways predictable and in some ways unpredictable — through other important parts of federal sentencing law.

Perhaps the biggest early post-Johnson federal sentencing echo emerged late last week when, as reported in this US Sentencing Commission news release, the USSC put forth "proposed changes to the existing guideline definitions of a 'crime of violence' [which are] primarily intended to make the guideline consistent with the Supreme Court’s recent decision in Johnson v. United States, __ U.S. __, 135 S. Ct. 2551 (2015)."   This recent post provides the basic details of what the USSC is proposing, and all the official details appear in this USSC document.  

I am still working through the potential import and impact of what the USSC is proposing, and the USSC itself stresses that its proposed guideline amendment is not just preliminary.  But, as the question in the title of this post suggests, the import and impact of what the USSC is proposing would be that much bigger and that much more consequential if any USSC post-Johnson amendments were to be made fully retroactive by the Commission to all federal prisoners currently serving long guideline-career-offender-based sentences.

As hard-core federal sentencing practitioners know, sorting through whether, how and for whom guidelines amendments are made retroactive can be a tough slog both legally and practically.  But because many current prisoners potentially impacted any post-Johnson guideline amendments may already be able to bring Johnson-based constitutional challenges to their existing sentences, it might actually prove more efficient and effective for all actors in the federal sentencing system for the USSC to make any of its post-Johnson guideline amendments fully retroactive — rather than to have everyone in the system await court rulings (and inevitable circuit splits?) on just what Johnson means for prisoners now serving long prison sentences based on the existing (constitutionally suspect) guideline definitions of "crime of violence."

Some prior posts on Johnson and its possible impact:

August 10, 2015 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (3)