Wednesday, November 18, 2015

Is it appropriate for condemned's lawyers to give up capital fight at 11th hour?

The question in the title of this post is prompted by this extended Dallas Morning News article headlined "Condemned man’s lawyers stop helping, cite ‘false hope’." Here is the start and end of the story involving a murderer scheduled to be executed today in Texas:

From his cell on death row, Raphael Holiday drafted letter after desperate letter to lawyers who represent the condemned. He begged for their help to plead for mercy from Gov. Greg Abbott, to try any last-ditch legal maneuvers that might stave off his impending execution.

Holiday’s appointed lawyers had told him that fighting to stop his punishment was futile, and they wouldn’t do it. The 36-year-old thought he’d be left to walk to the death chamber with no lawyer at his side.

Less than a month before his execution — scheduled for Wednesday — Holiday secured help. Austin attorney Gretchen Sween agreed to ask the court to find new lawyers willing to try to keep him from dying. But Holiday’s federally appointed lawyers — the ones who said they would do no more to help him — are opposing their client’s attempts to replace them.

Now, just hours before he is set to face lethal injection for burning to death three children, including his own daughter, Holiday is awaiting word from the U.S. Supreme Court on his latest request for help.

Lawyers James “Wes” Volberding and Seth Kretzer said they worked diligently to find new evidence on which to base additional appeals for Holiday, but that none exists. Seeking clemency from Abbott, a staunch death penalty supporter, would be pointless, they say. The two contend they are exercising professional judgment and doing what’s best for their client.

“We decided that it was inappropriate to file [a petition for clemency] and give false hope to a poor man on death row expecting clemency that we knew was never going to come,” Volberding said in a telephone interview.

But others say the law under which death row lawyers are appointed doesn’t allow that kind of discretion. It requires attorneys to make every possible effort to save a client’s life, if that’s what the inmate wants. “This seems unconscionable,” said Stephen Bright, president and senior counsel of the Southern Center for Human Rights and a teacher at Yale Law School. “Lawyers are often in a position of representing people for whom the legal issues are not particularly strong, but nevertheless they have a duty to make every legal argument they can.”

So far, appeals courts have sided with Volberding and Kretzer. Last Thursday, the 5th U.S. Circuit Court of Appeals denied a motion to have them replaced. On Monday, Sween appealed to the Supreme Court.

Holiday was convicted of intentionally setting fire to his wife’s home near College Station in September 2000, killing her three little girls. He forced the children’s grandmother to douse the home in gasoline. After igniting the fumes, Holiday watched from outside as flames engulfed the couch where authorities later found the corpses of 7-year-old Tierra Lynch, 5-year-old Jasmine DuPaul and 1-year-old Justice Holiday huddled together. Volberding and Kretzer were appointed in February 2011 to represent Holiday in his federal appeals. They filed a 286-page petition in federal court, alleging dozens of mistakes in Holiday’s case, ranging from assertions that he was intellectually disabled to charges that clemency is so rarely granted in Texas that the process has become meaningless.... In decades of practicing, Bright said he had never seen a case like Holiday’s in which appointed lawyers so vociferously fought to keep a death row inmate from retaining a different attorney. In some cases, he said, new lawyers have discovered evidence others overlooked pointing to an inmate’s innocence or showing people’s intellectual disabilities made them incompetent for execution. “Most people don’t get executed for crimes they committed,” Bright said. “They get executed for mistakes their lawyers made.”

November 18, 2015 in Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

"Some Women Charged Under Tennessee’s Hated Fetal Assault Law Say It’s Not So Bad"

The title of this post is the headline of this interesting new Nashville Public Radio piece (found by my great research assistant) that provides interesting perspectives on a controversial Tennessee criminal law responding to modern drug abuse concerns.  Here are excerpts:

Tennessee has attracted international attention for making it a crime to give birth to a drug-dependent baby. This means women addicted to pain pills or heroin can be charged with assault to a fetus.  After less than two years in effect, the controversial law must be renewed, or it will expire.  While the measure has drawn worldwide disdain from women's health and civil liberty advocates, some of the women who’ve been charged say the threat of jail-time was a wake-up call.

“If I didn’t go through what I went through, I’d probably be down that same road right now," says 26-year-old mother Kim Walker of Johnson City. "But now I’m a totally different person. And I’m on the good road, not the bad road.”  Last year, Walker went into labor at home....  "One push and he was out," she says. “My husband delivered him. Didn’t know he was drug exposed until we got to the hospital," she says. "When we got to the hospital, they took him straight from my hospital room. I didn’t get to see him, didn’t get to hold him, nothing.”

He spent 28 days in the neonatal intensive care unit, withdrawing from the painkillers Walker was taking illegally. Walker had to take a drug test, which she failed. Then she was charged with assault.  But like most women, she chose treatment in order to avoid conviction. Rehab was a rocky road.  There’s been a relapse along the way. But in late October, Walker gave birth to another son — Jack — this time, drug-free.

The idea for Tennessee’s fetal assault law didn’t originate from doctors, nurses or social workers.  It came from law enforcement and legislators.  In fact, the medical community lined up in resistance, saying punishment is no way to treat addiction — especially when young mothers are singled out.

Lisa Tipton falls somewhere in the middle. “I don’t feel the law is perfect," she says. "I don’t feel the law is necessarily the solution...but we were absolutely bombarded.” Tipton runs a non-profit treatment center called Families Free in Johnson City. This part of Northeast Tennessee is the epicenter of the state's — and even the country's — problem with neonatal abstinence syndrome....

Tipton recognizes that Tennessee’s law has a bad rap among women’s health advocates and civil liberty groups.  But she says she’s not hearing great alternatives from the naysayers.  “I would really invite them to go in our area, into the trailer parks where they may be living with several family members who also use drugs and sometimes abuse them, and their children as well. To go into the jails and talk to the women whose lives have been destroyed by drugs and whose children are being raised by somebody else," Tipton says. "Help come up with some very real-life and real-world solutions that are going to change the lives of these women.”

It isn't clear the fetal assault law is doing what it was supposed to do.  In the Tri-Cities, more women have been prosecuted with this misdemeanor than anywhere else in the state.  Sullivan County District Attorney Barry Staubus, who pushed for the law in the first place, has charged more than 20 women this year.  And yet the mountainous region is still home to the largest number of babies being born needing to detox.

State Rep. Terri Lynn Weaver, R-Livingston, sponsored the statute.  She says it needs more time and should be renewed.  “I’m just going to stand my ground on the fact that I believe wholeheartedly this bill does help and does help these women that are in situations that never would have gotten the help they needed,” she says.

Some women say they were too scared to get prenatal care for fear of going to jail. Even getting that medical help is tricky.  Some OBGYNs prefer drug treatment to come first. And only a handful of treatment centers in the state even accept pregnant women and their added complexities.

"I’m not really sure what I feel about the law right now. I kinda of have mixed emotions about it,” says Sabrina Sawyer of Kingsport.  Her nine-month-old son was born with drug-dependency and had to spend several days in the NICU. He's happy and healthy now, which brings to light another important point from critics: It's unclear whether there are any long-term health effects from NAS.

Sawyer, who has two other young children, says she didn't know about Tennessee's fetal assault law until a caseworker walked into her hospital room.  “I was terrified. I had never been in any kind of trouble," she says. "It sent me through an emotional mess for a while.” Sawyer was charged with assault but chose to get treatment and avoid prosecution.  While torn about the effectiveness of the law, she also admits she'd likely still be using if going to jail hadn't been a possibility.

November 18, 2015 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (3)

Tuesday, November 17, 2015

Terrific original reporting by The Crime Report on challenging extreme policing bordering on entrapment

Regular readers know I am a big fan of all the criminal justice reporting work done at The Crime Report (TCR), and a new two-part series authored by Adam Wisnieski at TCR showcases why.  In these two extended pieces, TCR highlights the extraordinary examples of extreme stings and the limited willingness of courts to police the work of police and prosecutors in this arena:

Here is an excerpt from the first of these two important pieces:

A TCR investigation found 126 motions to dismiss a case on the grounds of “outrageous government conduct” filed during an 18-month period between 2014 and August 2015. In those 126 cases, only seven were initially successful.  Three of those were overturned on appeal, and an appeal on the fourth is still pending — though it is expected to be denied.

In the rare occurrences where a claim of “outrageous government conduct” is successful, something profound happens: police behavior changes. In one instance this year, the motion’s success directly led to a law enforcement agency changing policy on undercover sting operations involving prostitution. (More on this below.)

Nevertheless, the motion’s lack of success raises troubling questions for the future of American law enforcement.  Legal scholars and critical judges say the near-overwhelming failure of courts to rule aggressive police behavior is “outrageous” when such motions arise has created a climate in which such behavior is likely to increase — while eroding the power of the judicial branch to check the government when it overreaches and, by implication, threatening Americans’ constitutionally enshrined right to due process.

November 17, 2015 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

More notable criminal justice reform bills put foward by House Judiciary Committee

As detailed in this official press release, there is more notable federal criminal justice reform news via the House Judiciary Committee this week.  The press release carries this extended heading "House Judiciary Committee Unveils Bills to Address Federal Over-Criminalization: These bills are part of the Committee’s bipartisan criminal justice reform initiative." And here are some of the essential via the press release (with links from the source):

As part of the House Judiciary Committee’s criminal justice reform initiative, members of the House Judiciary Committee unveiled four bills to rein in the explosion of federal criminal law, commonly referred to as over-criminalization.  These bills, along with the Sentencing Reform Act (H.R. 3713), will be marked up by the House Judiciary Committee on Wednesday, November 18, 2015.  

The United States Code currently contains nearly 5,000 federal crimes. Recent studies estimate that approximately 60 new federal crimes are enacted each year, and over the past three decades, Congress has averaged 500 new crimes per decade.  In addition to the statutory criminal offenses, there are thousands of federal regulations that, if violated, can also result in criminal liability.  Many of these laws and regulations impose criminal penalties on people who have no idea they are violating a law.

The bills unveiled today address the underlying issues that have contributed to over-criminalization:

The Criminal Code Improvement Act of 2015, authored by Crime, Terrorism, Homeland Security, and Investigations Subcommittee Chairman Jim Sensenbrenner (R-Wis.), creates a default mens rea standard that applies when federal law does not provide a state of mind requirement so that only those who actually intend to commit the crime can be criminally liable. It also creates uniform definitions for several terms that are used frequently throughout title 18 of the Criminal Code....

The Regulatory Reporting Act of 2015, sponsored by Congresswoman Mimi Walters (R-Calif.), which requires every federal agency to submit a report to Congress listing each rule of that agency that, if violated, may be punishable by criminal penalties, along with information about the rule.... 

The Clean Up the Code Act of 2015, authored by Congressman Steve Chabot (R-Ohio), eliminates several statutes in the U.S. Code that subject violators to criminal penalties, such as the unauthorized use of the 4-H emblem or the interstate transportation of dentures....

The Fix the Footnotes Act of 2015, sponsored by Congressman Ken Buck (R-Colo.), fixes the footnotes in the current version of the Criminal Code to address errors made by Congress in drafting the laws.

November 17, 2015 in Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

"Aging in Prison: Reducing Elder Incarceration and Promoting Public Safety"

Screen-Shot-2015-11-11-at-12.11.33-PMThe title of this post is the title of this notable new report from published by the Center for Justice at Columbia University.  Here is the report's executive summary:

Columbia University’s Center for Justice, with Release Aging People in Prison/ RAPP, the Correctional Association of New York, the Osborne Association, the Be the Evidence Project/Fordham University, and the Florence V. Burden Foundation, coordinated a symposium in Spring of 2014 to discuss the rapidly growing population of elderly and aging people in prison. In attendance at the symposium were researchers, policy advocates, current and former policy makers and administrators, elected and appointed officials, and those who have directly experienced incarceration.

All agreed that while the overall prison population of New York State has declined in the past decade, the number of people aged 50 and older has increased at an alarming rate. The symposium provided the time and space for key stakeholders and actors to think critically about how best to address the phenomenon of New York’s aging prison population without compromising public safety.

A series of papers emerged from the symposium.  Together, they provide a rich overview and analysis of aging people in prison from some of the best thinkers in this field.  While the authors differ in opinion over some issues, they share several key observations and recommendations:

In New York State, the aging prison population continues to rise.  The population of incarcerated people aged 50 and older has increased by 81% since the early 2000’s. Currently, people aged 50 and older comprise more than 17% of the prison population.  The well-documented racial disparities in the criminal justice system are also reflected in the aging prison population — a vastly disproportionate percentage of aging people in prison are Black men and women.

Prisons were not meant to be nursing homes and are poorly equipped to house an aging population.  Basic structural limitations create formidable difficulties for elderly people in prison who often have limited mobility. The lack of medical or correctional staff with specialized knowledge in geriatric care significantly impairs prisons from providing appropriate care to people experiencing chronic medical problems.

Incarcerating the elderly has serious financial implications.  The cost of incarcerating someone aged 50 and older is two to five times the cost of incarcerating someone 49 and younger. An economist who presented at the symposium estimated that the United States spends at least $16 billion annually on incarcerating elderly people.

The explosion in the aging prison population undermines basic fairness, justice, and compassion.

The boom in the aging prison population is largely the result of tough-on-crime sentencing laws and release policies.  Legislators across the political spectrum are rethinking such policies because they have proved ineffective at addressing crime and have a deleterious impact on the wellbeing and safety of poor people and people of color.

Public safety does not require that we keep aging people in prison when they pose no risk to society.  People in prison aged 50 and older are far less likely to return to prison for new crimes than their younger counterparts. For example, only 6.4% of people incarcerated in New York State released age 50 and older returned to prison for new convictions; this number was 4% for people released at the age of 65 and older. Nationally, arrest rates are just over 2% for people aged 50+ and are almost 0% for people aged 65+.

There are several measures New York State should implement to reform parole policy and release aging people from prison.  These measures are consistent with public safety and will result in significant cost savings for New York State. In addition, there are several measures New York State must implement if it is to provide humane care for its aging prison population. Lastly, reentry services specifically tailored to elders released from prison will help ensure the protection of their human rights and dignity, as well as enhancing public safety and preventing any risk of recidivism.

We are pleased to report that the symposium resulted in the creation of a model pilot project for discharge planning and reentry — the report on this pilot is attached to this series of papers as an appendix.  We hope that the knowledge collected in the symposium, the pilot on reentry, and our continued commitment to improving New York State’s justice system serve as resources for you in your efforts to create a safer and healthier New York for all its residents.  The groups and individuals who participated in the symposium and the Aging Reentry Task Force remain ready to provide expertise and resources to help our policy makers in these efforts.

November 17, 2015 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Fitting follow-up to cursory Dem debate comments about criminal justice

As the numerous Prez debates all start to blend into one another, I am no longer making a habit of blogging about questions I would like to see asked or about the occasional tepid comment about criminal justice reform from one candidate or another.  Nevertheless the Democratic debate over the weekend had one of the most extended (and yet still cursory) discussions of criminal justice issues, and these two recent article provide an effective review and commentary of what was said and of what still needs to be discussed a lot more:

From The New Republic here, "The Democrats Have Learned to Say, "Black Lives Matter." Now What?: Why Democrats can't get complacent about police brutality."

From Vox here, "Next time, Democrats should debate these Black Lives Matter and criminal justice questions"

I especially liked these proposed debate questions from the Vox article:

Experts say undoing mass incarceration would likely require imprisoning fewer violent offenders and even releasing some of them.  Is that something you'd be willing to consider?

Has the Obama administration done enough to prevent aggressive prosecutions by US attorneys?  What would you do differently?

More than 86 percent of prisoners are in state facilities.  What can the federal government do to encourage decarceration in the states?

Should drug courts mandate rehabilitation and treatment with the threat of incarceration?

November 17, 2015 in Elections and sentencing issues in political debates, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Monday, November 16, 2015

Should SCOTUS deal with Johnson retroactivity through an original habeas petition?

The question in the title of this post should get habeas and/or sentencing geeks like me really excited, and I apologize in advance to everyone else.  But the question is on my mind and has me excited after reading this terrific (and lengthy) new PrawfBlawg post by Steve Vladeck titled "How an Obscure SCOTUS Procedure Can Solve AEDPA's Retroactivity Catch-22 (and a Growing Circuit Split)." The full post is today's must read for habeas and/or sentencing geeks, but the start and end of the effort should whet geeky appetites:

Thanks to Montgomery v. Louisiana, the retroactivity of new Supreme Court decisions is already an important part of the Court's current Term.  But as I explain in the post that follows, a new application pending before the Justices, In re Butler, raises a far more important retroactivity question, one that is already the subject of a 5-3 (and growing) circuit split, one that has an ever-shortening clock, and, most significantly, one that may only be definitively answerable if the Court does something it hasn't done in 90 years — issue an "original" writ of habeas corpus.

To unpack this dense but significant topic, Part I flags the origins of the problem — the restrictions on second-or-successive applications for post-conviction relief in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and the Supreme Court's fractured 2001 interpretation of those provisions in Tyler v. Cain.  Part II turns to the current circuit split, which involves whether the Court's June decision in Johnson v. United States, which invalidated a provision of the Armed Career Criminals Act (ACCA), can be retroactively enforced in second-or-successive petitions.  Part III explains why that circuit split can't be resolved by the Supreme Court via certiorari — and why, instead, the best way for the Court to take up the Johnson question is through an "original" writ of habeas corpus in a case like Butler.  Finally, Part IV argues that the Court should use Butler not just to answer the Johnson question, but also to resolve the debate over Tyler, lest this exact same scenario repeat itself after the next Johnson-like ruling....

In a paper I wrote in 2011, I argued that there's actually a value in preserving the obscurity of the Supreme Court's original habeas jurisdiction — and that, if original writs became common, they'd lose their utility as a safety valve, since Congress would presumably also think to take away that authority as part of future jurisdiction-stripping initiatives.  But there's a difference between elusive remedies and illusory ones.  For two decades, we have labored under the fiction that AEDPA's gatekeeper provisions don't raise serious constitutional problems entirely because of this safety valve.  If, as a result of disuse, it turns out that the safety valve is sealed shut, then we can no longer dodge those constitutional questions.  Thus, although we may be in the midst of a perfect storm for retroactivity, a case like Butler may actually be the perfect vehicle for the Justices to remind themselves about their original habeas authority — and, in the process, to issue an opinion that dramatically reduces the need for such relief in future retroactivity cases.

November 16, 2015 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

"Risk, Race, & Recidivism: Predictive Bias and Disparate Impact"

The title of this post is the title of this notable new and timely empirical paper by Jennifer Skeem and Christopher Lowenkamp now available via SSRN.  Here is the abstract:

One way to unwind mass incarceration without compromising public safety is to use risk assessment instruments in sentencing and corrections.  These instruments figure prominently in current reforms, but controversy has begun to swirl around their use.  The principal concern is that benefits in crime control will be offset by costs in social justice — a disparate and adverse effect on racial minorities and the poor.  Based on a sample of 34,794 federal offenders, we empirically examine the relationships among race (Black vs. White), actuarial risk assessment (the Post Conviction Risk Assessment [PCRA]), and re-arrest (for any/violent crime).

First, application of well-established principles of psychological science revealed no real evidence of test bias for the PCRA — the instrument strongly predicts re-arrest for both Black and White offenders and a given score has essentially the same meaning — i.e., same probability of recidivism — across groups. Second, Black offenders obtain modestly higher average scores on the PCRA than White offenders (d = .43; appx. 27% non-overlap in groups’ scores).  So some applications of the PCRA could create disparate impact — which is defined by moral rather than empirical criteria.  Third, most (69%) of the racial difference in PCRA scores is attributable to criminal history — which strongly predicts recidivism for both groups and is embedded in sentencing guidelines.  Finally, criminal history is not a proxy for race — instead, it fully mediates the otherwise weak relationship between race and re-arrest.  Data may be more helpful than rhetoric, if the goal is to improve practice at this opportune moment in history.

November 16, 2015 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)

Sentencing prominent federal defendants: should sex offender Jared Fogle or Sunwest CEO fraudster get longer prison term?

Two notable (and notably different) federal prosecutions are to reach sentencing this week in Indiana and Oregon.  Though the crimes and defendants are not similar, the range of sentences being requested by prosecutors and defendants in these two cases are comparable.  Via press reports, here are the basic elements of these two federal cases (with links to some underlying documents):

Jared Fogle, who pleaded guilty to federal sex offenses, "Jared Fogle asks for 5-year prison term in court filing before sentencing":

Jared Fogle's attorneys asked for a five-year prison term for the former Subway restaurant pitchman in a court filing before his sentencing Thursday.  The filing says Fogle will speak publicly during his hearing before Judge Tanya Walton Pratt in federal court in Indianapolis.  "He is painfully aware of the fact that he has impacted the lives of minor victims, hurt those closest to him and, for all practical purposes, destroyed the life he worked to build over the last 18 years," the filing says.

Fogle has agreed to plead guilty to two counts: possession of child pornography and traveling across state lines to engage in sex with a minor.  The prosecutor is asking for 12½ years in prison, followed by a lifetime of supervised probation.  That was the maximum sentence the U.S. attorney had agreed to seek in a plea bargain struck with Fogle in August. Fogle faced a maximum sentence on the two federal felony charges of 50 years.  The judge has discretion to sentence Fogle to more or less than what the prosecution has requested.

The defense filing acknowledges that the advisory sentencing guideline is 135 to 168 months, but said it is "entitled to little weight because it is the result of a flawed and widely criticized set of … provisions."

Jon Michael Harder, who pleaded guilty to federal fraud offenses, "Former Sunwest CEO, facing sentencing for $130 million fraud, apologizes for 'carnage and problems'":

U.S. prosecutors accuse former Sunwest Management CEO Jon Michael Harder of orchestrating the biggest investment fraud in Oregon history, and they are asking a judge to sentence him to 15 years in prison.  IRS criminal investigators say that as the head of a vast network of assisted living centers, he helped make off with $130 million from 1,000 investors between 2006 and 2008.

Harder will go before a judge Monday morning for a rare two-day sentencing hearing before U.S. District Judge Michael H. Simon, who found him guilty last January of mail fraud and money laundering.  

Harder's legal team, seeking leniency, is asking Simon to sentence him to five years in prison. Assistant Public Defender Christopher J. Schatz took the unusual step of filing a court declaration that describes his client as possibly suffering from undiagnosed post-traumatic stress disorder from the emotional clubbing he took after Sunwest's failures.  "Many of the investors in Sunwest were family members, family friends and members of the Seventh Day Adventist community," Schatz wrote. "Mr. Harder feels that he let all the investors down, that he failed them all."  

Harder, too, filed a court paper — a letter of apology to Simon.  "I feel incredibly badly for all the carnage and problems that I have caused," he wrote. "I have obsessed, over the last 7 ½ years, about what I should have or could have done differently in operating Sunwest."

government sentencing memo paints Harder as a chief executive who burned through corporate cash as if it were his own. He drove luxury cars, owned six homes, and once flew about 100 people to Alaska — most of them Sunwest employees — to go fishing.

Intriguingly, it seems that the federal sentencing guidelines would call for a much, much longer sentence for the fraudster than the sex offender: while Jared Fogle appears to be facing a guideline sentencing range of roughly 12 to 14 years, Jon Harder appears to be facing a guideline sentencing range of life without the possibility of parole.

November 16, 2015 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (10)

Sunday, November 15, 2015

Lots of notable media reads on range of criminal justice topics

Another busy weekend for me has meant another weekend without sufficient time to blog about all the interesting criminal justice pieces I have seen in recent days in a variety of old and new media outlets.  So, to cover lots of ground, here is a round-up of piece that have caught my eye of late:

November 15, 2015 in Recommended reading | Permalink | Comments (1)

"Who's Really Sentenced to Life Without Parole?: Searching for 'Ugly Disproportionalities' in the American Criminal Justice System"

The title of this post is the title of this interesting and important new paper by Craig Lerner digging deeply into the realities of LWOP sentencing in eight states. Here is the abstract:

Critics argue that the American criminal justice system is rife with “ugly disproportionalities” and “brutal penalties on the undeserving.”  One particularly brutal punishment is the sentence of life without the possibility of parole (LWOP).  The punishment, conceived decades ago as a substitute for the death penalty, scarcely exists in the rest of the world. Today, while capital punishment wanes in the United States, steadily increasing numbers of defendants are sentenced to LWOP.  Furthermore, according to a recent ACLU Report, over 3,000 of the 50,000 inmates serving LWOP were convicted of nonviolent offenses.  There is no uglier disproportionality than a defendant, guilty of a minor crime, banished to prison for the remainder of his life.

This Article questions this narrative and therewith the contemporary wisdom as to the brutality of American criminal justice, at least in its imposition of LWOP sentences.  The author conducted a detailed study of every inmate sentenced to LWOP in eight states.  In a few states, it is impossible to find a single inmate sentenced to LWOP for any crime other than murder or the most serious violent crimes.  Even in jurisdictions that impose LWOP for crimes labeled “nonviolent,” the inmates are few in number and often present aggravating factors, such as extensive criminal histories or previous violent crimes. Inevitably, criminals sentenced to LWOP will vary in culpability, and some will appear not to merit this punishment.  Drawing attention to their plight can spur executive clemency in individual cases. But accusations that the American legal system is rife with “ugly disproportionalities,” at least insofar as this claim is applied to LWOP sentences in the states, appear to have little merit.

November 15, 2015 in Detailed sentencing data, Offense Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (6)

Can and will "big data" enable astute (and/or scary) recidivism risk assessment?

Download (3)The question in the title of this post is prompted by this interesting Christian Science Monitor article, headlined "Microsoft says its software can tell if you're going back to prison." Here are excepts:

In a scenario that seems ripped straight from science fiction, Microsoft says its machine learning software can help law enforcement agencies predict whether an inmate is likely to commit another crime by analyzing his or her prison record.

In a series of videos and events at policing conferences, such as one on Oct. 6 at the Massachusetts Institute of Technology, Microsoft has been quietly marketing its software and cloud computing storage to law enforcement agencies.

It says the software could have several uses, such as allowing departments across the country to analyze social media postings and map them in order to develop a profile for a crime suspect. The push also includes partnerships with law enforcement technology companies, including Taser – the stun gun maker – to provide police with cloud storage for body camera footage that is compliant with federal standards for law enforcement data.

But in a more visionary – or possibly dystopian – approach, the company is also expanding into a growing market for what is often called predictive policing, using data to pinpoint people most likely to be at risk of being involved in future crimes.

These techniques aren’t really new. A predictive approach — preventing crime by understanding who is involved and recognizing patterns in how crimes are committed — builds on efforts dating back to the early 1990s, when the New York City police began using maps and statistics to track areas where crimes occurred most frequently.

“Predictive policing, I think, is kind of a catch-all for using data analysis to estimate what will happen in the future with regard to crime and policing,” says Carter Price, a mathematician at the RAND Corporation in Washington who has studied the technology. “There are some people who think it’s like the movie ‘Minority Report’ ” — in which an elite police unit can predict crimes and make arrests before they occur — “but it’s not. No amount of data is able to give us that type of detail.”

Scholars caution that while data analysis can provide patterns and details about some types of crimes – such as burglary or theft – when it comes to violent crime, such approaches can yield information for police about who is at high risk of violent victimization, not a list of potential offenders.

“Thinking that you do prediction around serious violent crime is empirically inaccurate, and leads to very serious justice issues. But saying, ‘This is a high risk place,’ lets you focus on offering social services,” says David Kennedy, a professor at John Jay College of Criminal Justice. In the 1990s, he pioneered an observation-driven approach that worked with local police in Boston to target violent crime. After identifying small groups of people in particular neighborhoods at high risk of either committing a crime or becoming a victim of violence, the program, Operation Ceasefire, engaged them in meetings with police and community members and presented them with a choice – either accept social services that were offered or face a harsh police response if they committed further crimes. It eventually resulted in a widespread drop in violent crime often referred to as the “Boston Miracle.”...

In one video tutorial for law enforcement agencies, Microsoft makes a sweeping claim. Using records pulled from a database of prison inmates and looking at factors such as whether an inmate is in a gang, his or her participation in prison rehabilitation programs, and how long such programs lasted, its software predicts whether an inmate is likely to commit another crime that ends in a prison sentence. Microsoft says its software is accurate 90 percent of the time.

“The software is not explicitly programmed but patterned after nature,” Jeff King, Microsoft’s principal solutions architect, who focuses on products for state and local governments, says in the video. “The desired outcome is that we’re able to predict the future based on that past experience, and if we don’t have that past experience, we’re able to take those variables and then classify them based on dissimilar attributes."...

While predictive policing is still in the early stages, some say the data it generates could have a mixed impact. While the information could improve police transparency, it could also lead to other problems. “If police departments had access to social media accounts, and it turned out that crimes were being committed by people who liked a certain kind of music and a certain sports team, it could lead to certain kinds of racial discrepancies,” says Dr. Price, the RAND researcher. “It’s a useful tool, but it should always be done with [the idea of] keeping in mind how this will impact populations differently, and just sort of being cognizant of that when policies are put in place."

But Kennedy, the criminology professor, says that for violent crimes, using data that shows crime risks to influence policing actions could have devastating consequences. “People have been trying to predict violent crimes using risk factors for generations, and it’s never worked,” he says. “I think the inescapable truth is that, as good as the prediction about people may get, the false positives are going to swamp the actual positives ... and if we’re taking criminal action on a overwhelming pool of false positives, we’re going to be doing real injustice and real harm to real people.”

November 15, 2015 in Data on sentencing, National and State Crime Data, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

New York Times editorial makes case that California prison releases are working

The New York Times had this notable recent editorial, headlined "California’s Prison Experiment," highlighting why California is the most dynamic state to watch amidst the national debate over sentencing reform and mass incarceration.  Building on two recent reports, the editorial makes the case that California is finding success with decarceration reforms.  Here are excerpts:

Until recently, California locked up more people per capita than any other state. It has been under federal court order since 2009 to bring its severely overcrowded prison system below 137.5 percent of capacity, or about 114,000 inmates.

It met that modest goal in February, thanks in part to a 2014 ballot initiative that reclassified six low­level offenses as misdemeanors instead of felonies. The initiative, Proposition 47, was expected to lead to the release of thousands of inmates, and cut new admissions by about 3,300 per year.  It also required that the cost savings — estimated to be more than $150 million this year — be reinvested into anticrime services like drug rehabilitation,  antitruancy efforts and mental health treatment.  Victims’ services receive funding, too.

Proposition 47 followed two other major reforms: A 2011 law diverted low­level offenders from state prisons into county jails, and a 2012 ballot initiative scaled back a “three strikes” law. The latter led to the release of more than 2,100 people who had been sentenced to life without parole, some for a third strike as minor as shoplifting.

After each reform, law enforcement officials predicted that crime would rise, but it continued to drop around the state. Recidivism rates of those released under the three­-strikes reform are far below the state average.

Now, two new reports, by the American Civil Liberties Union and the Stanford Justice Advocacy Project, look at the effect of Proposition 47.  The most easily measurable impact is on the state’s prison and county jail population, which has fallen by about 13,000, with more than 4,400 prison inmates released by the end of September.  But the law remains controversial.  Some in law enforcement argue that they can’t arrest people for small crimes anymore, and point to crime upticks in some counties.

In fact, crime rates vary widely throughout the state. In Los Angeles County, property crime is up 8 percent, while the rate for all crime remains at record lows in San Diego County.  One sign that Proposition 47 is working is the recidivism rate. It is less than 5 percent for people released under the law; the state average is 42 percent....

It may be too soon to understand the full impact of Proposition 47, but the damage done by the indiscriminate and lengthy lockup of low­level offenders is all too clear. California’s voters, who have in the past given in to their most punitive impulses, have now opened the door to a more intelligent and humane justice system.

A few (of many) prior related posts on Prop 47 and its impact:

November 15, 2015 in Data on sentencing, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (2)

Saturday, November 14, 2015

"Is Deterrence Relevant in Sentencing White-Collar Defendants?"

The question in the title of this post is the title of this notable new article authored by Peter Henning and now available via SSRN. Here is the abstract:

This article is part of the Wayne Law Review symposium “Sentencing White-Collar Defendants: How Much Is Enough?” held in October, 2014.  The article looks at the primary justification for imposing punishment on a defendant convicted of a crime, which is deterrence of both the individual who committed the offense (special deterrence) and others similarly situated who will be dissuaded from pursuing similar misconduct (general deterrence). White-collar crimes are different from traditional street crimes, both in the type of conduct involved and the nature of the perpetrators.

One would expect that well-educated individuals, the type of person who commits a white-collar crime, would be easily deterred from violations because of the penalties suffered by others and knowledge of the consequences that is communicated through sentences imposed on others in the same industry or profession.  This article considers whether that message is heard because most white-collar offenses occur in seemingly unique circumstances, at least from the defendant’s point of view, and the person rarely expects to be caught, or may even believe that the conduct is not a crime.

The real value of deterrence is in keeping judges from succumbing to the impulse to view white-collar defendants as offenders who, having many good qualities, should not suffer any significant punishment.  Deterrence does not so much stop future crimes but acts as a means to inform judges about the need to impose punishments that do not let white-collar defendants use their social status and other resources to avoid the consequences of violations.

November 14, 2015 in Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (4)

Friday, November 13, 2015

Washington state prosecutors (wisely?) hoping for direction from a death-penalty referendum

This local AP article, headlined "Washington prosecutors want death-penalty referendum," reports that a number of notable executive branch officials are hoping a referendum vote might provide some clarity on how to approach the ultimate punishment. Here are the details:

The Washington Association of Prosecuting Attorneys issued a statement Thursday saying prosecutors “overwhelmingly believe that the people of the state should vote on the question of whether the state should retain the death penalty as an option in cases of aggravated murder.”

The death penalty has been on hold in Washington state since last year, when Gov. Jay Inslee issued a moratorium for as long as he’s in office. Nine men are now on death row in Washington state.

King County Prosecutor Dan Satterberg said a public vote would tell prosecutors “one way or the other” how Washingtonians feel about the death penalty. The impetus for the prosecutors’ action, according to an email from Tom McBride, executive secretary of the association, were the jury decisions in the murder cases involving the killings of a Carnation family in 2007 and a Seattle police officer in 2009.

In the Carnation case, Michele Anderson is accused of joining her then-boyfriend Joseph McEnroe in killing six members of her family. McEnroe was convicted of participating in the killings and sentenced in May to life in prison after the jury could not agree on the death penalty. In July, Satterberg said his office would not seek the death penalty against Anderson, an announcement made after Christopher Monfort was sentenced to life in prison for killing Officer Timothy Brenton.

The lack of pending death-penalty cases provides “a window where we don’t have to think through” immediate impacts, McBride said in his email, noting that the group’s Thursday statement had almost “unanimous support from elected prosecuting attorneys who both support and oppose the death penalty.”

Rep. Reuven Carlyle, D-Seattle, said the prosecutors’ statement is a “really important and momentous step forward” in public conversation over the law. But Carlyle, who has sponsored bills to ban the death penalty, said he believes any change should come from the Legislature. There’s a lot of complexity surrounding a change in the law, he said, and a public referendum would spur an expensive and difficult campaign....

Death-penalty cases in Washington are still being tried and continue to work through the system. Inslee’s moratorium means that if a death-penalty case comes to his desk, he will issue a reprieve, which means the inmate would stay in prison rather than face execution. In response to the prosecutors’ Thursday statement, Jaime Smith, spokeswoman for Inslee, called the death-penalty debate an important one. She added that “The governor made clear his reasons for enacting a moratorium and his support for a discussion among legislators and the people.”

Since 1981, most death-penalty sentences in Washington have been overturned and executions rare, according to the prepared remarks of Inslee’s 2014 moratorium announcement. “When the majority of death-penalty sentences lead to reversal,” Inslee said in the remarks, “the entire system itself must be called into question.”

November 13, 2015 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

"Alternative Courts and Drug Treatment: Finding a Rehabilitative Solution for Addicts in a Retributive System"

The title of this post is the title of this new paper by Molly Webster now available via SSRN. Here is the abstract:

Sentencing drug crimes and treating drug-addicted defendants often stem from contradictory theories of punishment. In the late twentieth century, courts traded rehabilitation for retributive ideals to fight the “War on Drugs.” However, beginning with the Miami-Dade Drug Court, treatment and rehabilitation have returned to the forefront of sentencing policy in traditional and alternative drug courts.

Jurisdictions have implemented a variety of policies designed to treat addiction as opposed to punishing it. Community courts, such as the Red Hook Community Justice Center in Brooklyn, New York, community-panel drug courts, such as the Woodbury County Community Drug Court in Iowa, and Hawaii’s Opportunity Probation with Enforcement represent efforts to address treatment within the court system. This Note argues that certain policies are more likely to benefit drug-addicted defendants than others, including procedural justice, predictable sanctions, and an increased focus on treatment. It also posits that qualitative studies measuring long-term success of drug treatment programs should be commissioned to ensure that drug courts utilize the most effective treatment policies that promote rehabilitative ideals.

November 13, 2015 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2)

Thursday, November 12, 2015

Federal prosecutors seeking plea-deal max sentence of 12.5 years for Jared Fogle

As reported in this local article, headlined "Prosecutor to ask court to sentence Jared Fogle to 12.5 years," the feds have filed their sentencing recommendations in the child sex prosecution of former Subway pitchman Jared Fogle. Here are some of the details via the press report:

A court filing by prosecutors in advance of Jared Fogle's sentencing next Thursday tells the judge she must send a message to others involved in child exploitation.  Fogle, the former Subway pitchman, has agreed to plead guilty to two counts: possession of child pornography and traveling across state lines to engage in sex with a minor.

The prosecutor is asking U.S. District Judge Tanya Walton Pratt to sentence Fogle to 12-1/2 years in prison, followed by a lifetime of supervised probation.  That was the maximum sentence the U.S. Attorney had agreed to seek in a plea bargain struck with Fogle in August.  Fogle faced a maximum sentence on the two federal felony charges of 50 years.  The judge has discretion to sentence Fogle to more or less than what the prosecution has requested.

"Persons with a sexual attraction to young children may be difficult to deter, but these sentences matter," the document said.  "These offenders frequently communicate with each other online and they are concerned about the law enforcement efforts. "In many ways, the results of these cases help to deter and teach by example.  There is no avoiding the point that, whatever the result, in this matter, it will be closely watched by current and potential offenders who have not yet been identified."

The document said that Fogle "repeatedly expressed sexual fantasies concerning children to multiple persons," but despite exhaustive investigation, "no victims under the age of 18 years could be specifically identified from those victims already charged in this case."  Prosecutors have identified 14 victims.  Prosecutors said in the filing that they were trying to prevent more trauma to the victims in a high-profile case that has already caused "substantial anguish."

"A public trial would only have made this process of healing even more protracted and difficult, without changing the outcome," the filing said. Among the new information in the court filing:

• Fogle paid for sex from adults "on hundreds of occasions."

• Some of the commercial child pornography he had, which prosecutors believe was produced in Eastern Europe, included actual or simulated sexual intercourse by children as young as 6.

• Russell Taylor, former head of Fogle's foundation, who has also agreed to plead guilty to child porn charges, gave minors drugs, alcohol and money to induce them into sex acts. Two of the minors were 14 years old.

Taylor will be sentenced Dec. 10. In his case, prosecutors agreed not to seek a sentence of more than 35 years in prison.  Taylor agreed not to ask for less than 15 years in prison.

The new court filing said that Fogle rationalized his viewing of child porn made by Taylor. Because Taylor was going to secretly produce the material anyway, "he might as well benefit from the production by seeing the results, which interested him."

Prosecutors noted that Fogle had a "good childhood" and that his wife, who has filed for divorce, "had no idea he was doing any of these things."

Prior related posts:

November 12, 2015 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (16)

"Who Gets Time for Federal Drug Offenses? Data Trends and Opportunities for Reform"

The title of this post is the title of this notable new data analysis from The Urban Institute.  Here are snippets from the start and end of the short and reader-friendly report:

Almost half (45 percent) of the 95,305 individuals in federal prison for drug offenses are in the lowest two criminal history categories, indicating minimal prior convictions and a low risk of recidivism.2 In fact, over one-quarter (26 percent) have no prior criminal history.

Further, over three-quarters of all individuals in federal prison for drug offenses have no serious history of violence before the current offense. More than half have no violent history, and nearly a quarter have minor histories of violence, such as a simple assault and other crimes that do not typically lead to serious injury....

At the end of the FY 2014, individuals serving drug sentences accounted for 49 percent of the total federal prison population. Though recent policy changes have helped reverse upward trends in population size, the Urban Institute’s Federal Prison Population Forecaster shows that continuing population declines will require significantly shorter lengths of stay for drug offenses.  Congressional leaders are considering legislative action that would reduce some mandatory minimum penalties and grant judges greater discretion to sentence individuals to shorter prison stays for drug offenses.  While the exact impact of these bills is unknown, lasting reductions in the size of the federal prison population will only come from big cuts in lengths of stay for drug offenses.  The Task Force will be considering such reforms as part of its deliberations and expects to build on the efforts under way in Congress.

November 12, 2015 in Data on sentencing, Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics | Permalink | Comments (0)

Split Ohio Supreme Court rejects constitutional challenge to registration requirement for 21-year-old who had consensual sex with 15-year-old

Any and all college guys in Ohio who may still be dating younger high school girls will want to know about the new Ohio Supreme Court opinion in Ohio v. Blankenship, No. 2015-Ohio-4624 (Nov. 12, 2015) (available here). Here is how the majority opinion gets started:

Appellant, Travis Blankenship, challenges as cruel and unusual punishment the sex-offender-registration and address-verification requirements imposed upon him as part of his sentence for violating R.C. 2907.04 by engaging in unlawful sexual conduct with M.H., a 15-year-old, when he was 21. Because we hold that the Tier II registration requirements imposed upon him are not so extreme as to be grossly disproportionate to the crime or shocking to a reasonable person and to the community’s sense of justice, we affirm the judgment of the court of appeals.

The chief dissent gets started this way:

The framework within which an issue is presented can unduly influence the outcome. For example, if you ask a stadium full of people whether requiring a Tier II sex offender to comply with certain reporting requirements shocks their sense of justice, you are unlikely to receive a single affirmative response.  But... but add that the offender was an adult male who had sex with a 15-year-old girl ...[and] add that the offender was a 21-year-old male, that the 15-year-old girl consented, and that the registration and address-verification requirements must be complied with every six months for 25 years, and now we are at the threshold.  Many will see the consent as a mitigating factor, many will see the relatively modest age difference as a mitigating factor, and many will see the 25-year time period as unnecessarily long.  As the majority notes, and I acknowledge, these potentially mitigating factors are not statutorily relevant, but they are nevertheless constitutionally relevant.

Assume further that the offender has been determined by a psychologist to have none of the characteristics of a sex offender and to have a low risk of reoffending. There would be many who would be shocked at the severity and length of the punishment, i.e., the reporting requirements.  Assume all of the above and add that the offender could have received a sentence of up to 18 months, see R.C. 2929.14(A)(4), that he was sentenced to six months in prison (the shortest term possible), and that a judge released him after he had served a mere 12 days.  Now the community’s sense of justice has been violated.  Few would deem it appropriate to require a person who committed a crime that warranted a 12-day sentence to comply with reporting requirements every six months for the next 25 years.

The touchstone of federal cruel-and-unusual-punishment analysis is that the punishment must be proportional to the crime. Weems v. United States, 217 U.S. 349, 367 (1910). The case before us fails this standard.

November 12, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (17)

Ninth Circuit panel reverses, on procedural grounds, district court ruling declaring California's capital system unconstitutional

Today via a procedural ruling in Jones v. Davis, No. 14-56373 (9th Cir. Nov. 12, 2015) (available here), a panel of the Ninth Circuit has reversed this ground-breaking ruling by US District Judge Cormac Carney that California's system of reviewing capital convictions and sentences " violates the Eighth Amendment’s prohibition against cruel and unusual punishment." The circuit panel's majority opinon in Jones, authored Judge Graber, gets started this way:

The State of California authorizes the execution of a capital prisoner only after affording a full opportunity to seek review in state and federal courts. Judicial review ensures that executions meet constitutional requirements, but it also takes time — too much time, in Petitioner Ernest DeWayne Jones’ view. He argues that California’s post-conviction system of judicial review creates such a long period of delay between sentencing and execution that only an “arbitrary” few prisoners actually are executed, in violation of the Eighth Amendment’s prohibition against cruel and unusual punishment. Under Teague v. Lane, 489 U.S. 288 (1989), federal courts may not consider novel constitutional theories on habeas review.  That principle “serves to ensure that gradual developments in the law over which reasonable jurists may disagree are not later used to upset the finality of state convictions valid when entered.” Sawyer v. Smith, 497 U.S. 227, 234 (1990). Because we conclude that Petitioner’s claim asks us to apply a novel constitutional rule, we must deny the claim as barred by Teague. Accordingly, we reverse the district court’s judgment granting relief.

A concurrence by Judge Watford in Jones gets started this way:

My colleagues conclude that relief is precluded by Teague v. Lane, 489 U.S. 288 (1989), which bars federal courts from applying “new rules of constitutional criminal procedure” to cases on collateral review.  Beard v. Banks, 542 U.S. 406, 416 (2004) (emphasis added). The Teague bar does not apply to new rules of substantive law. Schriro v. Summerlin, 542 U.S. 348, 352 n.4 (2004).
The rule announced by the district court, while undoubtedly “new” for Teague purposes, is substantive rather than procedural. The court held that the death penalty as administered in California constitutes cruel and unusual punishment and therefore violates the Eighth Amendment.  In particular, the court concluded that the long delays between imposition of sentence and execution, resulting from systemic dysfunction in the post-conviction review process, combined with the low probability that an inmate sentenced to death will actually be executed, preclude the death penalty from serving any deterrent or retributive purpose. Jones v. Chappell, 31 F. Supp. 3d 1050, 1053, 1062–65 (C.D. Cal. 2014); see Glossip v. Gross, 135 S. Ct. 2726, 2767–70 (2015) (Breyer, J., dissenting).  The Supreme Court has held that capital punishment violates the Eighth Amendment if it does not fulfill those two penological purposes.  Kennedy v. Louisiana, 554 U.S. 407, 441 (2008). Thus, the effect of the district court’s ruling is to categorically forbid death as a punishment for anyone convicted of a capital offense in California.  A rule “placing a certain class of individuals beyond the State’s power to punish by death” is as substantive as rules come.  Penry v. Lynaugh, 492 U.S. 302, 330 (1989).  
I would reverse the district court’s judgment on a different ground.  A federal court may not grant habeas relief unless the petitioner has first exhausted the remedies available in state court.  28 U.S.C. § 2254(b)(1)(A).  Jones concedes he has not done that.  He never presented the claim at issue here to the California Supreme Court to give that court an opportunity to rule on the claim in the first instance.  Jones did present a so-called Lackey claim to the California Supreme Court, which asserted that the long post-conviction delay in Jones’ own case has rendered his death sentence cruel and unusual punishment. See Lackey v. Texas, 514 U.S. 1045 (1995) (Stevens, J., respecting denial of certiorari).  But the claim on which the district court granted relief rests on a different set of factual allegations and a different legal theory. Presenting the Lackey claim to the California Supreme Court therefore did not satisfy the exhaustion requirement.  See Gray v. Netherland, 518 U.S. 152, 162–63 (1996).  
Jones contends that exhaustion should be excused here. The federal habeas statute provides just two scenarios in which a petitioner’s failure to satisfy the exhaustion requirement may be excused: (1) when “there is an absence of available State corrective process,” or (2) when “circumstances exist that render such process ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B). Jones’ case does not fit within either of these exceptions. He does not dispute that he can file another habeas petition in the California Supreme Court to exhaust the claim at issue here, so the first exception doesn’t apply.  And the second exception does not apply because Jones can’t show that filing a new habeas petition with the California Supreme Court would be ineffective to protect his rights.

I will have some commentary on this significant and interesting circuit court ruling later today in a follow-up post after I find some time to read the opinions here closely. But even without a full read, I can predict with certainty that the defense team (and their amici) are all-but-certain to seek en banc review before the full Ninth Circuit and/or certiorari review in the Supreme Court. In all likelihood, those further appeals will keep this case going (and provide an excuse for California to not set any execution dates) throughout the rest of 2015 and probably all of 2016.

November 12, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Notable new ACLU report on impact of California's Prop 47 one year later

ACLUcaCoverIn this prior post last week, I reported on this Stanford Justice Advocacy Project report providing one perspective on the impact and import of California voters' embrace of criminal justice reform last year through Proposition 47.  I have just seen that the ALCU of California has this week released its own report on this important topic.  This report, titled "Changing Gears: California’s Shift to Smart Justice," covers lots of ground about local implementation of Prop 47.  Here are excerpts from its six main findings (which has its numbering a bit off):

For this survey, the ACLU obtained and reviewed public records from sheriffs, probation chiefs, district attorneys, and behavioral health departments from around the state. The findings below are offered as a starting point for policymakers and advocates working to better understand the choices local agencies are making in responding to Prop 47 and the voter mandate behind it – and begin to evaluate whether those choices are appropriate.

1. Thousands are waiting for their Prop 47 resentencing/ reclassification petitions to be reviewed. Under Prop 47, people who may be eligible to change the felony on their record to a misdemeanor have a limited time to ask the court to make the change. The November 2017 deadline to apply is now just two years away.  As of June 2015, courts statewide had reported a total of about 160,000 applications for Prop 47 relief – both for resentencing and reclassification.29 Responding to public records requests by the ACLU, many counties were unable to provide accurate data on how many people may still be incarcerated or under supervision awaiting resentencing.  Although most counties acted quickly to establish a process for resentencing eligible incarcerated people, it is less clear how many people eligible for Prop 47 resentencing are still serving felony sentences under community supervision.  According to Californians for Safety and Justice, there may be up to one million Californians who have an old felony on their record that may be eligible for reclassification....

2. Jail populations fell after Prop 47, but they are rising again. Due to overcrowding, jail populations in California are largely determined by jail administrators’ decisions about how to manage jail capacity.  They determine who will be booked into jail and who will be released, how and under what conditions.  Following enactment of Prop 47, jail populations statewide dropped by almost 11% from October 2014 to March 2015.  During the same period, the number of people who were released early due to jail overcrowding dropped by one-third. However, jail populations soon began to increase again as administrators adjusted detention policies and practices....

3. Some in law enforcement have prioritized low-level arrests while others de-prioritized them. The ACLU obtained several county sheriff departments’ arrest numbers for low-level drug and property offenses for each month in 2014 through mid-2015. (Sheriff’s departments represent a small sample of the hundreds of law enforcement agencies in the state.)  Changes in arrests in the fi rst six months of 2014 compared to the fi rst six months of 2015 demonstrate that local agencies are applying their discretion to arrest for Prop 47 offenses very differently....

4. Some county jails are making room for people charged with low-level offenses. The facts belie the claim by some in law enforcement that people facing misdemeanor charges cannot be jailed. In 2015, people facing misdemeanor charges are taking up a growing number of jail beds....

4. A majority of counties already require supervision for some people convicted of a low-level offense. In response to ACLU inquiries, 38 county probation departments reported supervising some people for misdemeanor convictions. Other counties put misdemeanants on court probation (which does not involve active monitoring). Following Prop 47, some counties reported putting people who have been resentenced from a felony to a misdemeanor under the supervision of the probation department. Other counties have chosen not to provide formal supervision....

5. Agencies have been focused on individual agency roles, rather than collaborative planning. In records provided to the ACLU, communication among criminal justice agencies at the county level have focused on the individual roles of each agency rather than on how best to maintain the county’s overall public safety goals. Few counties appear to have made the space to discuss how various agencies and the county as a whole should adjust policies and practices to ensure that counties adhere both to the legal requirements and the voter intent behind Prop 47.

A few (of many) prior related posts on Prop 47 and its impact:

November 12, 2015 in Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Tennessee soon to become first state with animal abuser registry

As reported in this local article, headlined "TBI will soon post animal abuse offenders," the Volunteer State is soon to have animal abuse offenders subject to required on-line registration. Here are the details:

Come January 1, Tennessee will post online a list of animals abusers near you. It will be similar to a sex offender registry, and Tennessee will be the first to have a statewide site.

"Her hind legs were put into a pot of water. Boiling water," said Cindy Marx-Sanders as she held Molly the chihuahua. Molly was rescued from an abusive home. "She is exactly why we need an animal abuser registry," Marx-Sanders said.

Marx-Sanders was one of the lobbyists who helped make an animal abuser registry a reality. By January, the Tennessee Bureau of Investigation will have the statewide website up and running. It will be a registry open to the public with pictures of people convicted of felony animal cruelty.

A person convicted of hurting an animal would have their picture up for two years, but if convicted again, their picture would be up for five years.

State Rep. Darren Jernigan of Nashville was a sponsor. "We want to put it in one spot so someone in Memphis can't drive to Knoxville and get an animal if they're going to abuse it. It's going to be statewide," he said.

Angela Klein, with the Bartlett Animal Shelter, has seen her fair share of animal abuse. "Sometimes it can be pretty heart-breaking," she said Monday. She's glad to now have another resource to help combat abuse. "We can go online now and check to see if people are on that registry, and it will give us one more tool to help place animals into better homes," Klein said....

Marx-Sanders said it's a great start, but there's more that needs to be done. "It does need to be expanded to include state-level misdemeanors, which are just a little bit lower on the cruelty scale than the felony level, but is still neglect and cruelty."

November 12, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offense Characteristics, Who Sentences? | Permalink | Comments (11)

"How Parental Incarceration Affects a Child’s Education"

The title of this post is the headline of this notable new Atlantic article, which summarizes some of the findings from this research report titled "Parents Behind Bars: What Happens to Their Children?" authored by David Murphey and P. Mae Cooper.  Here are excerpts from the Atlantic article:

Research has long found that children who have (or have had) a parent behind bars tend to suffer from problems including poor health, behavior challenges, and grade retention, but it’s been difficult to suss out the degree to which those issues are attributable more generally to other realities common in communities with high incarceration rates. “It can be challenging to disentangle the effects of parental incarceration from … other risk factors, such as extreme poverty,” Murphey and Cooper write. “Complicating matters further, parental incarceration can also exacerbate these associated risk factors, through loss of income, for example.”...

The researchers also found that a child who’s had a parent in prison is more likely than one who hasn’t to experience additional “adverse childhood experiences,” or ACEs—long-term, “toxic” circumstances such as witnessing domestic or community violence, suffering from extreme poverty, or living with someone who’s mentally ill. Research has shown that ACEs, especially when they’re cumulative, often cause childhood trauma, which can ultimately result in poor immunity and mental-health problems in adulthood and even early mortality. As James Perrin, the president of the American Academy of Pediatrics, told The Atlantic’s Olga Khazan last year, “If you have a whole bunch of bad experiences growing up, you set up your brain in such a way that it’s your expectation that that’s what life is about.”

Parental incarceration often acts as one such ACE because it causes a confusing, troubling loss of an attachment figure and involves ongoing contact with law enforcement, the corrections system, and child-welfare officials. But what Murphey and Cooper find is that having a parent in prison is likely to coincide with even more traumatic experiences: Children who’ve undergone parental incarceration suffer from 2.7 ACEs on average, according to their analysis of of the National Survey of Children’s Health, which lists 8 ACEs total. Children who haven’t experienced parental incarceration suffered from 0.7 ACEs on average.

Ultimately, the researchers conclude that “the harm associated with parental incarceration can compound the already difficult circumstances of vulnerable children,” a reality that’s particularly evident in their schooling. Yet, as the University of Minnesota paper shows, education policy has done little to address these kids’ particular needs. And in this age of mass incarceration, perhaps it should. In his recent cover story for The Atlantic about the topic, Ta-Nehisi Coates described mass incarceration as a vicious cycle that victimizes entire families, holding them “in a kind of orbit, on the outskirts, by the relentless gravity of the carceral state.” “Through it all,” Coates wrote, “children suffer.”

November 12, 2015 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Wednesday, November 11, 2015

How many vets, after serving to secure liberty, are now serving LWOP sentences?

The question in the title of this post, in addition to raising an important empirical question on a day devoted to honoring our veterans, seeks to highlight my view that even more disconcerting than the number of veterans who many be on death row (as dicusses in this new DPIC report) is the surely much larger number of vets who are serving a sentence ensuring they will never experience true freedom again after they served to protect that very freedom.

The DPIC report indicates that around 300 veterans may be on death row, which would make vets a little less than 10% of the condemned population.  Using that rough percentage and knowing that at least 100,000 persons (and likely many more) are serving LWOP sentences in the United States, it think it would be reasonable to guess that as many as 10,000 veterans might be serving the ultimate American liberty-depriving sentence after having devoted part of their life to protecting American liberties.

November 11, 2015 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (10)

"What Mass Incarceration Looks Like for Juveniles"

The title of this post is the headline of this New York Times op-ed by Vincent Schiraldi. Here are excerpts:

After two decades of researching mass incarceration — and advocating for its demise — I decided in 2005 to take more direct action and accepted a job running corrections departments, first in Washington, D.C., then in New York City.  It was a rude awakening.

The juvenile corrections department in Washington had about 1,000 clients, about 200 of whom were confined to a detention facility, and a staff of 800. For the previous 19 years, the department had been under a court order for unconstitutional conditions; I was the 20th leader in that time.  In the year prior, two scathing reports, one by the district’s inspector general and another from plaintiffs’ experts, detailed appalling conditions: Beatings of children in custody were commonplace, inmates stuffed clothing around the toilets to keep out rats and cockroaches, young people were locked up for so long that they often defecated or urinated in their cells.  Youths who came in clean tested positive for marijuana after 30 days of confinement, suggesting that it was easier to score drugs in my facility than on the streets of the District of Columbia.

My staff and I quickly uncovered more abuses.  Staff members were sexually harassing the kids and one another.  One of my corrections officers married a youth shortly after the boy was released from custody.  A teacher who had been confined in the facility when she was a teenager confided to us that she had been sexually assaulted by a staff member who was still in our employ years later.  The female staff members widely complained that, if they didn’t perform sexually for their supervisors, they were threatened with finding themselves alone and unaided with the facility’s inmates in dangerous situations.

These abuses are not meted out equally in the United States, with African-Americans and Latinos incarcerated at far higher rates than whites.  In my five years running the Washington system, I never saw one white youth (other than volunteers) in my correctional facility....

In New York, where I ran the probation department, I didn’t witness the same hair­raising institutional abuse, mostly because we didn’t run any facilities.  But probation officers reported that they routinely re­incarcerated people on their caseloads for technical, noncriminal violations largely because they were afraid that if they didn’t, and their client was rearrested, they’d be held to account.  As a result, our clients were frivolously deposited into New York’s jail and juvenile facilities, both of which were sued by the Justice Department during my tenure for conditions chillingly similar to what I had witnessed in Washington.  When we put a stop to the over-incarceration, crime did not spike and there was a remarkably low felony rearrest rate of 4 percent a year for people who completed probation.

Two things surprised me about my experiences on the inside.  First, horrific institutional conditions are common, not exceptional.... Since 1970, systemic violence, abuse and excessive use of isolation and restraints have been documented in juvenile institutions in 39 states, the District of Columbia and Puerto Rico, according to the Annie E. Casey Foundation, a philanthropic group devoted to children’s poverty issues....

The second major surprise was how much I liked many of my staff members.  I charged into my job with an air of moral superiority.  Surely, I thought, such conditions could be created only by ethically bankrupt characters who would wear their depravity on their sleeves.  But it was far more complicated.  Just about everyone in my Washington facility knew who was beating the kids, having sex with them and selling them drugs.  After all, our facility housed only about 200 young people, roughly the size of a small middle school.

Yet many of the church-going people on my staff were ostensibly very friendly people who, despite their silence, believed they were advancing public safety.  They attended our football games and plays and cheered the youths on, sitting in the stands with their parents.  They were the good guys, rendered complicit by years in a corrupt system....

From what I witnessed during my decade on the inside, the end of mass incarceration can’t come soon enough; conditions poison staff members and kids alike and harm, rather than improve, public safety. Incarceration should be the backstop, not the backbone, of our crime­-control efforts.

November 11, 2015 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Tuesday, November 10, 2015

What should be the minimum age for charging a juve with murder?

The question in the title of this post is prompted by this depressing local article, headlined "8-year-old charged with murder in beating death of Birmingham toddler," which suggests that there is apparently no minimum age for prosecution for murder in Alabama.  Here are the sad specifics:

An 8-year-old Birmingham boy is charged with murder in the beating death of a toddler girl left in his care, the youngest person in recent memory charged with murder in Jefferson County. The girl's mother is charged with manslaughter after police say she left her young daughter in the care of a group of children while she partied at a nightclub.

"This is one of the most heartbreaking investigations that I have seen in over 30 years of my law enforcement career," said Birmingham police Chief A.C. Roper. "There are just too many deep rooted issues in this horrific crime. It's extremely troubling from so many different angles and there are no law enforcement answers to prevent it," Roper said. "We've been concerned about the kids and the future effect on their lives. The bottom line is an innocent young baby lost her life and that should be a wake-up call for our community."

Kelci Devine Lewis, who turned 1 in May, was found unresponsive in her crib at 10:45 a.m. Oct. 12. Police were called to the home on Second Avenue South, and Kelci was taken to Children's of Alabama where she was pronounced dead at 11:07 a.m. Authorities have said there were visible injuries to the girl. She died from blunt force trauma to the head, and internal injuries, Birmingham police spokesman Lt. Sean Edwards has said.

Family members said 26-year-old Katerra Lewis and Kelci, her only child, didn't live at the home where Kelci was killed. Grandmother Waynetta Callens said in an earlier interview that they were staying there temporarily with friends while Katerra Lewis waited for Section 8 housing of her own. Edwards said Kelci was left alone that night in the home with five other children, ages 2, 4, 6, 7 and 8. Katerra Lewis, he said, had gone to a nightclub with a friend who was the person she was staying with.

"It is believed that while the mother and friend were at the club, the 8-year-old viciously attacked the 1-year-old because the 1-year-old would not stop crying," Edwards said. "The 1-year-old suffered from severe head trauma as well as major internal organ damage with ultimately led to her death."

Police believe the 8-year-old put the injured Kelci back in her crib, where she remained until her mother found her the following day. Katerra Lewis and the other adult were reportedly gone from 11:30 p.m. until 2 a.m. Police have not and will not release the name of the 8-year-old boy. He is in the custody of the Department of Human Resources....

Katerra Lewis is charged with manslaughter. She turned herself in to the Jefferson County Jail Monday at 3:42 p.m. and was released at 5:02 p.m. after posting $15,000 bond. Katerra Lewis attended a vigil held Oct. 20 at Avondale Park but was too distraught to speak to the group. They lit candles and released white balloons in Kelci's memory. The day after the vigil, Katerra Lewis posted on her Facebook that she was suffering following the loss of her child. "I keep asking can dey bring u back and take me instead."

DHR spokesman Barry Spear said the agency had no prior involvement with Katerra Lewis or Kelci. Privacy laws, he said, prevent him from commenting about the 8-year-old suspect.

November 10, 2015 in Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (6)

Urging AG Lynch to ensure DOJ policies on § 851 enhancements are followed consistently

I was pleased over this weekend to be part of an effort spearheaded by Prof Kate Stith to write to Attorney General Loretta Lynch to express concerns about federal prosecutors' charging practices in drug cases.  The short letter sent yesterday to AG Lynch on this matter, which can be downloaded below, gets started and ends as follows:

We write to urge you to issue renewed guidance to all U.S. Attorneys to reiterate and enhance compliance with former Attorney General Eric Holder’s September 2014 Memorandum (“Holder Memo”) instructing U.S. Attorneys not to leverage 21 U.S.C. § 851 enhancements to induce defendants to plead guilty.  Recent statements by Steven H. Cook, head of the National Association of Assistant United States Attorneys (NAAUSA), as well as field research being conducted by students at Yale Law School, suggest that at least some federal prosecutors are not consistently complying with this policy.  This creates prosecutor­-driven disparities that are plainly unwarranted....

[T]here is mounting evidence that at least some U.S. Attorneys still consider it appropriate to routinely threaten to file § 851 enhancements if defendants exercise their right to go to trial.  Last week, the Washington Post reported that Steven Cook of NAAUSA “said the rates of cooperation have not changed in part because mandatory sentences are still in play as leverage in negotiations.  The Holder memo, he said, has been interpreted differently by individual prosecutors, sometimes in the same office.  Defense attorneys ‘understand that this tool is still in our pocket.’”

Though the study is still ongoing, preliminary inquiries and data analysis by students at Yale Law School likewise reveal inconsistent application of the Holder Memos.  Moreover, prosecutors in many districts continue to wield the explicit or implicit threat of § 851 enhancements to induce defendants to plead guilty.  In numerous districts across the country, it is common knowledge that a prosecutor will almost certainly file an enhancement if a defendant elects to go to trial.  Such practices contravene the spirit and letter of the Holder Memos.

We urge you to issue renewed guidance to all U.S. Attorneys in order to ensure compliance with and consistent application of the August 2013 and September 2014 Holder Memos. Additionally, in order to foster and facilitate consistent application of federal sentencing laws nationwide, we recommend that you (1) include these policies in the U.S. Attorneys’ Manual, and (2) require U.S. Attorneys to report when they file § 851 enhancements, and their reasons for doing so pursuant to the Holder Memos.

Download Letter to Hon. Loretta E. Lynch from Professor Kate Stith_Douglas Berman_and Mark Osler

November 10, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

"Battle Scars: Military Veterans and the Death Penalty"

BattleScarsCoverThe title of this post is the title of this notable new report from the Death Penalty Information Center.  Here are excerpts from its Executive Summary:

In many respects, veterans in the United States are again receiving the respect and gratitude they deserve for having risked their lives and served their country. Wounded soldiers are welcomed home, and their courage in starting a new and difficult journey in civilian life is rightly applauded.  But some veterans with debilitating scars from their time in combat have received a very different reception.  They have been judged to be the "worst of the worst" criminals, deprived of mercy, sentenced to death, and executed by the government they served.

Veterans with Post-Traumatic Stress Disorder (PTSD) who have committed heinous crimes present hard cases for our system of justice.  The violence that occasionally erupts into murder can easily overcome the special respect that is afforded most veterans.  However, looking away and ignoring this issue serves neither veterans nor victims....

PTSD is now formally recognized in the medical community as a serious illness.  But for those who have crossed an indefinable line and have been charged with capital murder, compassion and understanding seem to disappear.  Although a definitive count has yet to be made, approximately 300 veterans are on death row today, and many others have already been executed.

Perhaps even more surprising, when many of these veterans faced death penalty trials, their service and related illnesses were barely touched on as their lives were being weighed by judges and juries.  Defense attorneys failed to investigate this critical area of mitigation; prosecutors dismissed, or even belittled, their claims of mental trauma from the war; judges discounted such evidence on appeal; and governors passed on their opportunity to bestow the country's mercy.  In older cases, some of that dismissiveness might be attributed to ignorance about PTSD and related problems.  But many of those death sentences still stand today when the country knows better.

Unfortunately, the plight of veterans facing execution is not of another era.  The first person executed in 2015, Andrew Brannan, was a decorated Vietnam veteran with a diagnosis of PTSD and other forms of mental illness.  Despite being given 100% mental disability by the Veterans Administration after returning from the war, Georgia sought and won a death sentence because he bizarrely killed a police officer after a traffic stop.  The Pardons Board refused him clemency.  Others, like Courtney Lockhart in Alabama, returned more recently with PTSD from service in Iraq.  He was sentenced to death by a judge, even though the jury recommended life.  The U.S. Supreme Court turned down a request to review his case this year.

This report is not a definitive study of all the veterans who have been sentenced to death in the modern era of capital punishment.  Rather, it is a wake-up call to the justice system and the public at large: As the death penalty is being questioned in many areas, it should certainly be more closely scrutinized when used against veterans with PTSD and other mental disabilities stemming from their service.  Recognizing the difficult challenges many veterans face after their service should warrant a close examination of the punishment of death for those wounded warriors who have committed capital crimes.  Moreover, a better understanding of the disabilities some veterans face could lead to a broader conversation about the wide use of the death penalty for others suffering from severe mental illness.

November 10, 2015 in Death Penalty Reforms, Offender Characteristics, Prisons and prisoners | Permalink | Comments (4)

Will new House Speaker Paul Ryan significantly help getting federal sentencing reform enacted?

The inside-the-Beltway question in the title of this post is prompted by this inside-the-Beltway report from The Hill headlined "Paul Ryan seen as boost to criminal justice reform push." Here are excerpts:

Proponents of criminal justice reform view new Speaker Paul Ryan as an ally, and see his ascension as a boost to the bipartisan push to overhaul decades-old sentencing and drug laws. Lawmakers and advocates pushing reform legislation base their optimism on Ryan’s past proposals, the signals he has sent about the way he plans to run the House — and even the Wisconsin Republican’s age.

Members of both the House and the Senate told The Hill they believe Ryan’s election last week will help smooth legislation now pending before both chambers. “It helps,” said Sen. Lindsey Graham (R-S.C.) “I think he’s sensitive to the issue and would be willing to look at sensible reform.”

Ryan included criminal justice and sentencing reforms in a sweeping anti-poverty plan he penned in 2014, when he served as chairman of the House Budget Committee. The proposal called for more flexibility within mandatory minimum guidelines judges use when sentencing non-violent drug offenders and for federal assistance in helping inmates re-enter society.

To the extent he decides to focus on the issue, Ryan could play an important role in bringing the issue to the floor this session. “I know Paul has been a supporter of the concept over the years and so one would reasonably conclude it might be a little easier,” said Rep. Steve Chabot (R-Ohio), who himself has concerns about moving too aggressively on a criminal justice overhaul.

Advocates, meanwhile, are bullish on the prospect, saying Ryan’s history and experience all bode well for reform efforts. “I think Paul Ryan sees it as something that’s part of a social fabric fix not just criminal justice reform,” said Kevin Ring, director of strategic initiatives at Families Against Mandatory Minimums (FAMM), a group that’s fighting for sentencing reforms.

Danyelle Solomon, policy counsel for the Brennan Center for Justice at New York University Law School, said Ryan is uniquely positioned to become a leader on proposals that have failed to gain traction in recent years. “With his time on the Budget and Ways and Means committees, he is well aware of the cost burden the system has on the federal budget,” she said. “Speaker Ryan has made positive comments about the need to address the criminal justice system and we’re excited to see movement.”...

Two reform bills have been offered in the House: the SAFE Justice Reinvestment Act, introduced by Rep. Jim Sensenbrenner (R-Wisc.) and Rep. Bobby Scott (D-Va.), and the Sentencing Reform Act of 2015, authored by House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and Rep. John Conyers (D-Mich.). The latter legislation has also been introduces in the Senate and both bills have bipartisan support....

Though Scott noted that Ryan has been an advocate for relying heavily on research in drafting social policies — something he says his bill does — he admits Goodlatte’s legislation has a better chance of getting a vote in the House. “I think it’s fair to say the bill number that reaches the floor with be Goodlatte’s bill,” he said. “The question is what gets added to it. There are a lot of provisions that would significantly improve the Goodlatte bill.”

In a statement to The Hill, Goodlatte said the Judiciary Committee is taking a step-by-step approach. "There is a growing consensus across the political spectrum that our criminal justice system is in need of reform and I am hopeful that reforms can be passed and enacted this Congress,” he said.

Reformers also draw hope from Ryan’s age. At 45, he’s two decades younger than the man he succeeded, former Speaker John Boehner (R-Ohio). “Younger members have a better sense of this issue and there is less of this binary ‘you tough on crime; me soft on crime,’” Ring said. “The younger guys aren’t burdened by the older fights, so they are freer to look at it in different ways.”

A few prior related posts about Paul Ryan and federal sentencing reform:

November 10, 2015 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0)

Monday, November 9, 2015

New research suggests overcrowding in California prisons increased post-release parole violations

Opponents of modern sentencing reform efforts are often quick and eager to highlight research showing high rates of recidivism among those released from prison to argue that public safety could be adversely affected by any and all sentencing reform.  In light of such claims, I find notable this new published empirical research suggesting that prison overcrowding in California may be in part responsible for high recidivism rates.    The published research is titled "Does Prison Crowding Predict Higher Rates of Substance Use Related Parole Violations? A Recurrent Events Multi-Level Survival Analysis," and here are excerpts from the abstract:


This administrative data-linkage cohort study examines the association between prison crowding and the rate of post-release parole violations in a random sample of prisoners released with parole conditions in California, for an observation period of two years (January 2003 through December 2004).


Crowding overextends prison resources needed to adequately protect inmates and provide drug rehabilitation services. Violence and lack of access to treatment are known risk factors for drug use and substance use disorders. These and other psychosocial effects of crowding may lead to higher rates of recidivism in California parolees.


Rates of parole violation for parolees exposed to high and medium levels of prison crowding were compared to parolees with low prison crowding exposure. Hazard ratios (HRs) with 95% confidence intervals (CIs) were estimated using a Cox model for recurrent events. Our dataset included 13070 parolees in California, combining individual level parolee data with aggregate level crowding data for multilevel analysis....


Prison crowding predicted higher rates of parole violations after release from prison. The effect was magnitude-dependent and particularly strong for drug charges. Further research into whether adverse prison experiences, such as crowding, are associated with recidivism and drug use in particular may be warranted.

November 9, 2015 in Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (8)

Via lengthy summary reversal, SCOTUS grants qualified immunity to police officer involved in fatal shooting

Though not technically a sentencing issue, folks who closely follow all "hot" criminal justice issues (and/or the work of the Supreme Court) will want to make time to read the Supreme Court's lengthy per curiam opinion handed down today. In Mullenix v. Luna, No. 14-1143 (S. Ct. Nov. 9, 2015) (available here), the Court via a 12-page per curiam opinion decided the Fifth Circuit was wrong to deny summary judgment based on qualified immunity to an officer involved in a fatal shooting.

Justice Sotomayor was a lone dissenter in the ruling, and the start of her dissent highlights the facts that kept this civil rights case going until SCOTUS decided to jump in today:

Chadrin Mullenix fired six rounds in the dark at a car traveling 85 miles per hour.  He did so without any training in that tactic, against the wait order of his superior officer, and less than a second before the car hit spike strips deployed to stop it.  Mullenix’s rogue conduct killed the driver, Israel Leija, Jr.  Because it was clearly established under the Fourth Amendment that an officer in Mullenix’s position should not have fired the shots, I respectfully dissent from the grant of summary reversal.

Anyone interested in early coverage on this ruling can check out Kent Scheidegger at Crime and Consequences and Lyle Denniston at SCOTUSblog.

November 9, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

"The Most Ambitious Effort Yet To Abolish The Death Penalty Is Already Happening"

The title of this post is the headline of this extraordinary new BuzzFeed News piece about the significant on-going effort to build a case for the Supreme Court to abolish the death penalty through a major constitutional ruling.  The very lengthy article by Chris Geidner covers lots of ground, making the full piece a must-read for any and everyone who follows any aspect of the debate over the modern death penalty.  Here is how the piece gets started:

Henderson Hill and Rob Smith are the odd couple shepherding a collaborative effort to end the death penalty in America at the most significant moment for that movement in decades.

As talk of mass incarceration, racial disparities, and criminal justice legislation has permeated the public debate on both sides of the political spectrum, another effort has taken shape under the radar: the laying of the groundwork for a Supreme Court ruling that the death penalty is unconstitutional, a violation of the Eighth Amendment’s ban on cruel and unusual punishments.

When Supreme Court Justice Stephen Breyer, along with Justice Ruth Bader Ginsburg, raised the prospect this June of the Supreme Court revisiting the constitutionality of the death penalty — using a key part of Smith’s work as evidence — the ground shifted overnight, and discussions went from hypothetical to hyperdrive.

In the wake of that change, two of the death penalty’s most strident abolitionists sat down with BuzzFeed News to make their case not only for ending the death penalty in the United States — but for doing so in the next few years. The effort, as with so many focused on the Supreme Court, ultimately comes down to Justice Anthony Kennedy.

The 8th Amendment Project, which Hill and Smith run, is a centralized effort to advance death penalty abolition research, raise issues of legal system accountability, and help capital defense efforts — all with the Supreme Court in mind.  It has a $1 million budget and six full-time staff members this year.  It is part of a national effort backed by the Themis Fund, a donor collaborative dedicated to ending the death penalty in America, the fund’s director told BuzzFeed News.  The Themis Fund was launched as an initiative of the progressive Proteus Fund in 2007, when a broad array of opponents of capital punishment — from litigators to funders — came together to figure out a way to end capital punishment in the country.

As death sentences and executions slowed down across the country — and some states got rid of it altogether — the Themis Fund donors decided to ramp up their efforts. In 2014, Hill, a 59-year-old black lawyer who began his career decades ago as a public defender, was made the head of the project, giving it its current name. He has since brought on Smith, a 34-year-old white law professor who graduated from law school in 2007, to serve as the project’s litigation director.

November 9, 2015 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Former Virginia AG explains why he finds conservative opposition to sentencing reform "so baffling"

Ken Cuccinelli, the former attorney general for Virginia, has authored this notable FoxNews commentary asserting that true conservatives should be true supporters of modern sentencing reform efforts. The piece, headlined "Criminal justice reform: Conservative states have a record of success. So why ignore it?", merits a full read. Here is how it gets started:

With Congress currently considering several different approaches to criminal justice reform, interested parties have long noted that the current situation at the federal level is untenable, featuring stubbornly high recidivism rates, a ballooning prison population, and a Bureau of Prisons that constitutes an ever-growing proportion of the Justice Department’s budget.

In short, we aren’t getting the sort of return on investment — both in terms of cost, but most importantly, public safety — that we’ve come to demand of other areas of government. In such situations, conservatives must take the lead when government has grown inefficient, which is why some recent opposition to reform from the right is so baffling.

Commentators have variously suggested that this effort is “bipartisanship at its worst,” or that our crime rate has declined in recent years because “we have taken crime more seriously” by keeping “serious criminals in jail, not letting them out” despite an entire body of scholarship to the contrary.

Unfortunately, such commentary is long on histrionics — with suggestions that essentially equate re-evaluating mandatory sentences to allow for more tailored, individualized punishments as tantamount to Congress throwing open prison doors indiscriminately — and short on facts and experience which, hitherto, conservatives have prized.

America’s crime rate has indeed fallen substantially in recent decades, but this is due in large part to a paradigm shift in what it means to be “tough on crime.” We can agree that keeping serious criminals in prison is an effective means of preserving public safety, but we must also recognize that the axiom of “putting people in jail and throwing away the key” does not apply to all offenders universally, and can actually be counterproductive.

Incarcerating non-violent offenders in the same population as more dangerous criminals has the effect of inculcating the former into a culture of criminality common among the latter, making them more of a risk to public safety upon release than when they originally went in.

“Tough on crime” policies, particularly mandatory sentences, tend to set such circumstances in stone, and vitiates the possibility of seeking out alternative, evidence-based programs that can divert amenable offenders into treatment. Such programs are more cost-effective, and most importantly, have been proven to reduce the likelihood of recidivism.

November 9, 2015 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Connecticut Gov calls for older teens to be treated as juves in state criminal justice system

As effectively reported in this local article, headlined "Malloy: Raise the age for juvenile justice system to 20," Connecticut's Governor Dan Malloy delivered a significant criminal justice policy speech on Friday focused on bail reform and juvenile justice. Here are some details:

"I would like to begin a statewide conversation about raising the age of eligibility for our juvenile justice system and considering how we think about our young offenders," Malloy said at the University of Connecticut School of Law in Hartford.  "Let's consider this: age within our laws and criminal justice system is largely arbitrary…You can commit a nonviolent offense at 17 without a criminal record, but if you're 18 and you commit the same crime, it lasts a lifetime."

Malloy also would overhaul the bail system, always a politically fraught undertaking at the General Assembly, with the intention of ensuring that no one is jailed for want of a minimal bail, a change that one policy analyst said could shrink the state's jail population by up to 1,000 inmates.

He was the keynote speaker at an all-day symposium sponsored by the Connecticut Law Review.  His audience included judges, prosecutors and the commissioner of correction, Scott Semple.

Malloy, a Democrat who won bipartisan passage earlier this year for a Second Chance Society initiative aimed at reducing incarceration for non-violent crimes, proposed that the records of those under 25 who commit less severe offenses be shielded from public disclosure and possibly expunged.

Malloy said such a change would "wipe the slate clean" for low-risk offenders that have not matured entirely.  "Is it right that that 17 year-old can have a second chance but a 22 year-old cannot? This is the question that we should collectively answer," Malloy said.  He intends to propose a package of reforms to the General Assembly for its 2016 session, which convenes in February.

The changes Malloy proposed would make Connecticut the first state in the nation to raise the age for its juvenile justice system past 18....  He said one inspiration for the idea came on a trip with Semple to Germany, where offenders are treated as juvenile up to age 20.

“This is uncharted territory in terms of going that far," said David McGuire, the legislative and policy director for the American Civil Liberties Union of Connecticut.  "It makes a lot of sense. It will save a lot of lives. It will really impact an entire generation."

In 2007, state lawmakers changed state law so that 16- and 17-year-olds charged with less serious offenses enter the juvenile justice system, where they are often provided with a range of community-based supports, rather than automatically being sent to the adult court system.  A study commissioned by the state before the age was raised to 18 found that up to 75 percent of teenagers sent to the adult system were receiving no rehabilitative services.  And the services other teens received were subpar, according to the study.

Malloy said the current age is still too low.  "It's time to think about changing the artificial barriers that we imposed. It's time that we get it right.  For that reason we need to take a different approach for these young adults between the ages of 18 and 24," Malloy said, pointing out that many of these young offenders are victims of trauma.

November 9, 2015 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Sunday, November 8, 2015

California (finally!) officially announces switch to one-drug lethal injection protocol

95498_600California, the state with the largest death row and the seemingly most-dysfunctional and expensive capital punishment system, late last week announced that it is finally going to try to modernize its long-dormant execution protocol.  This extended Los Angeles Times piece provides the details and the back-story:

California unveiled a new method for executing prisoners Friday, proposing a “humane and dignified” single-drug injection protocol that could restart capital punishment after a nearly 10-year hiatus. The regimen would replace a three-chemical method the state used in the past. That mixture was struck down in 2006 by a judge who said it could cause inhumane suffering if one of the drugs failed to work.

The new proposal stems from a lawsuit filed against the state by crime victims' families who favored the death penalty and wished to see it enforced. A settlement of the suit, brought by the Criminal Justice Legal Foundation, required the state to devise a new lethal injection method by this month.

Executions are not likely to resume immediately, however. Public vetting of the proposal could take a year, and court challenges may follow. In addition, voters may see one or more ballot measures on the death penalty next year....

The new California protocol would allow a choice of four barbiturates for lethal injection: amobarbital, pentobarbital, secobarbital and thiopental. The selection would be made on a “case-by-case basis, taking into account changing factors such as the availability of a supply of chemical,” according to the proposal, published online Friday by the California Department of Corrections and Rehabilitation.

The single-drug protocol creates “a better flexibility, a better system of options,” said Michael Rushford, who heads the foundation that filed the suit. Rushford expressed chagrin over the state's decision to use the regulatory process, which allows two months for public comment and will delay the resumption of executions.

He said officials had dragged their feet in crafting a new policy. He attributed that to Gov. Jerry Brown and Atty. Gen. Kamala D. Harris, who oppose the death penalty although they have said they would enforce it. “If we had a different governor and a different attorney general, these wouldn't be problems,” Rushford said.

Harris' office did not immediately respond to requests for comment. Corrections spokeswoman Terry Thornton, speaking for the Brown administration, ascribed the delay to the developing national debate over execution methods, not resolved until a U.S. Supreme Court ruling in June.

At least 16 death row inmates in California have exhausted their appeals and could be executed if the protocol is adopted. The inmates range in age from 49 to 78. One was condemned for crimes that took place 36 years ago.

Some condemned prisoners were stoic when told about the impending arrival of a new execution protocol. “In the meantime, I have my life,” Clifton Perry, 46, said in a recent interview, noting that legal challenges could drag on for years. He was sentenced to death for the 1995 killing of a convenience store owner during a robbery.

California has 749 inmates on death row, the most in the country. Since 1978, the state has executed 13 prisoners, 68 condemned offenders have died from natural causes and 24 have committed suicide....

California voters narrowly defeated a ballot measure in 2012 that would have abolished the death penalty. Eight states have rescinded capital punishment laws since 2000. Death penalty opponents have proposed an initiative for the November 2016 ballot that would replace capital punishment with life without the possibility of parole. Legislative analysts this week said such a move would save California some $150 million a year, by reducing the costs of capital punishment trials and subsequent penalty appeals.

A competing measure, sponsored by law enforcement and victim groups, also has been submitted for state review. That measure would propose changes to speed up executions.

November 8, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6)

"How Doctors Helped Drive the Addiction Crisis"

The title of this post is the headline of this extended New York Times op-ed authored by Richard Friedman, which reinforces my long-standing view that drug use/abuse and related social ills are most properly considered and addressed as public health concerns rather than criminal justice issues.  Here are excerpts:

There has been an alarming and steady increase in the mortality rate of middle-­aged white Americans since 1999, according to a study published last week.  This increase — half a percent annually — contrasts starkly with decreasing death rates in all other age and ethnic groups and with middle­-aged people in other developed countries.

So what is killing middle­-aged white Americans?  Much of the excess death is attributable to suicide and drug and alcohol poisonings.  Opioid painkillers like OxyContin prescribed by physicians contribute significantly to these drug overdoses.

Thus, it seems that an opioid overdose epidemic is at the heart of this rise in white middle­-age mortality.... Driving this opioid epidemic, in large part, is a disturbing change in the attitude within the medical profession about the use of these drugs to treat pain....

[S]tarting in the 1990s, there has been a vast expansion in the long­term use of opioid painkillers to treat chronic nonmalignant medical conditions, like low­back pain, sciatica and various musculoskeletal problems.  To no small degree, this change in clinical practice was encouraged through aggressive marketing by drug companies that made new and powerful opioids, like OxyContin, an extended­release form of oxycodone that was approved for use in 1995....

The consequences of this epidemic have been staggering.  Opioids are reported in 39 percent of all emergency room visits for nonmedical drug use.  They are highly addictive and can produce significant depressive and anxiety states. And the annual direct health care costs of opioid users has been estimated to be more than eight times that of nonusers.

But most surprising — and disturbing — of all is that there is actually very weak evidence that opioids are safe or effective for the long­term treatment of nonmalignant pain. So how did they become so popular for these uses?  A large review article conducted between 1983 and 2012 found that only 25 of these were randomized controlled trials and only one study lasted three months or longer.  The review concluded that there was little good evidence to support the safety or efficacy of long­term opioid therapy for nonmalignant pain....

What is really needed is a sea change within the medical profession itself.  We should be educating and training our medical students and residents about the risks and limited benefits of opioids in treating pain.... It is physicians who, in large part, unleashed the current opioid epidemic with their promiscuous use of these drugs; we have a large responsibility to end it.

This commentary fittingly highlights that, in modern times, doctors and Big Pharma are the most significant (and potentially dangerous) drug dealers for most Americans.  It also informs my own disinclination to defer completely to doctors and Big Pharma when they express concern about the potential harms of marijuana reform or to trust politicians when they suggest doctors and Big Pharma should guide us through modern marijuana reform debates.  When it comes to pain management and the developments of safe drugs to treat chronic pain, doctors and Big Pharma have a track record in recent decades that should prompt much more suspicion than confidence.

Some prior related posts:

November 8, 2015 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (2)

Saturday, November 7, 2015

Split NC Supreme Court upholds state prohibition on sex offenders using social media available to kids

As reported in this local article, yesterday the "N.C. Supreme Court has upheld a state law prohibiting registered sex offenders from using Facebook or other social networking sites that minors can join." Here is more about the notable ruling:

In the split opinion issued Friday, the justices reversed an N.C. Court of Appeals ruling that found the 2008 law too broad and vague, and therefore unconstitutional. The challenge was brought by Lester Gerard Parkingham Jr., a registered sex offender in North Carolina, who faced additional charges after Durham police found a Facebook page he created under an assumed name.

The case raises questions about whether such laws prohibit sex offenders from participating in web-based forums, which have become virtual town squares, as they re-enter society. The four justices in the majority ruled that the “incidental burden imposed” upon convicted sex offenders “is not greater than necessary to further the governmental interest of protecting children from registered sex offenders.”

Writing for the majority, Justice Robert Edmunds stated, “the General Assembly has carefully tailored the statute in such a way as to prohibit registered sex offenders from accessing only those Web sites that allow them the opportunity to gather information” about minors. For example, Edmunds wrote, the defendant could join The Paula Deen Network site, where people swap recipes, because users must be at least 18.

Edmunds wrote that the law is meant to limit conduct and that it only incidentally affects speech. “The justification of the statute — protecting minors from registered sex offenders — is unrelated to any speech on a regulated site,” he wrote.

Emails and text messages aren’t restricted by the law. “Accordingly, the regulation leaves open ample channels of communication that registered sex offenders may freely access,” Edmunds stated in the majority opinion.

Justice Robin Hudson dissented, and Justice Cheri Beasley joined her in a minority opinion describing the law as unconstitutionally vague. They contended that the law prohibits sex offenders from “communicating with others through many widely used commercial networking sites.” It also could restrict sex offenders from joining news sites and being able to use retailers such as Amazon....

In North Carolina, where 14,268 people are entered in the N.C. Sex Offender and Public Protection Registry database, civil liberty organizations have paid close attention to Packingham’s case. The 2008 restriction was part of a legislative package that N.C. Attorney General Roy Cooper advocated for years. Packingham argued that prohibiting him from those social media sites is a violation of his rights to “free speech, expression, association, assembly and the press under the First and Fourteenth Amendments.”...

Glenn Gerding, the Chapel Hill attorney who represented Packingham, argued several years ago that the law as written could make it difficult for a registered offender to engage in routine Internet activity, such as a Google search. The law defines a “commercial social networking website” as one that derives revenue from membership fees or advertising, facilitates social introductions and allows users to create pages to post information.

The full ruling in North Carolina v. Packingham, No. 366PA13 (N.C. Nov. 7, 2015), is available at this link. The majority opinion in this case explained why the court believed that the North Carolina statute being challlenged was more narrowly tailored than somewhat similar statutes struck down by federal courts in Indiana and Louisiana. But the dissent cites some recent US Supreme Court rulings to make the case that the NC statute is still not sufficiently limited to be compliant with the First Amendment.

Though I am never good at predicting whether and when the Supreme Court will take up an important criminal justice issue, I would not be at all surprised if the Justices show some interest in this case if (when?) the defendant were to seek certiorari.

November 7, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (8)

"Incentives Structures and Criminal Justice"

The title of this post is the title of this interesting article authored by Aurelie Ouss now available via SSRN.  Here is the abstract:

The conventional assumption in economics of crime is that criminal justice system actors behave like social planners, choosing punishment levels to equate the marginal benefits and costs from society’s perspective.  This paper presents empirical evidence suggesting in practice, punishment is based on a much narrower objective function, leading to over-incarceration.  The costs and benefits of various punishment options are reflected at different government levels in the US.

The 1996 California Juvenile Justice Realignment can be used as a natural experiment: it shifted the costs of juvenile corrections from states to counties, keeping overall costs and responsibilities unchanged.  Moving the cost of incarceration from state to counties resulted in a discontinuous drop in the number of juveniles being sent to state facilities, but no change in juvenile arrests.  

This indicates that when costs and benefits of incarceration are not borne by the same agency, there is excess incarceration: not only is there more demand for prison than when costs are fully internalized; but there are no gains in terms of crime reduction from this extra incarceration.

November 7, 2015 in Purposes of Punishment and Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (0)

Thanks to retroactive drug guidelines, federal prison population under 200,000 for first time in nearly a decade

I was pleased to discover from this webpage providing a weekly updating of the official federal prisoner headcount that, for the first time in nearly a decade, the federal prison population is now officially under 200,000.  I believe that the official count last week was around 205,000, and thus it would seem that this milestone was achieved officially as a result of the implementation of the first set of drug-2 retroactivity early prisoner releases.

I have heard talk in various settings of an interest in having the federal prison population down eventually to 150,000 (which, I believe, would still have the facitlities officially a bot above their standard capacity).  I think the passage and effective implementation of the bipartisan federal sentencing reform bills now in Congress would likely go a long way to getting to that goal in a responsible way.     

November 7, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (2)

Some more highlights from a busy week at Marijuana Law, Policy and Reform

Though I previously highlighted here my reactions to this past week's big Ohio vote on a controversial marijuana reform initiaitve, lots more of note happened nationally and internationally this past week in the marijuana reform space.  Here are some posts covering some of the developments from Marijuana Law, Policy & Reform:

November 7, 2015 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1)

A citizen's notable (and radical?) suggestions for improving the Ohio execution process

Yesterday I received an interesting e-mail from an Ohioan styled as a "letter to the editor" and which I received permission to reprint here:

Dear Mr. Berman,

In reference to the PD article "Ohio in quandary over how to resume executions " (Oct 24) about lethal-injection drugs, I would like to comment.

Since I live in Ohio, I would like to address our execution dilemma. Allow me to suggest an alternative to lethal injection.

I am disappointed to see the failure of execution cocktails that have taken an half an hour or more to end a prisoners life.  Although the suffering of these dying criminals does not seem unfair.

But I would like to solve -- once and for all -- the problems with inefficient lethal drugs. Let's make execution less painful for us all.  As an alternative to drugs, we simply use the Red Cross method of donating a pint of blood, but using a 20 ounce bag to hold all of a person's blood, resulting in a complete draining of all blood for a quick and painless eternal sleep.  

I call this the 'Total Blood Withdrawl' execution.  I wrote the protocol for this method.  Maybe Red Cross can use the blood.

Let's use this transition method to a day when there will be no more executions.


Brian Taylor

I have no idea if this plan for "Total Blood Withdrawal" would actually produce a "quick and painless eternal sleep." But given that officials in Ohio and elsehwere seem unwilling and/or unable to come up with viable alternatives to problematic lethal injection protocols, I am pleased to highlight here that even average citizens are eager to offer alternative execution methods for consideration.

November 7, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (14)

Friday, November 6, 2015

SCOTUS grants review on federal/international sex offender registration issue

The big news from the US Supreme Court's order list this afternoon is the grant of review on another issue concerning the intersection of religious liberty and Obamacare requirements.  But sentencing fans might be interested to see SCOTUS also took up a federal case involving sex offender registration laws: by granted cert on just question 1 in the case of Nichols v. United States, the Justices will consider later this Term "whether 42 U.S.C. $ 16913(a) requires a sex offender who resides in a foreign country to update his registration in the jurisdiction where he formerly resided, a question that divides the courts of appeals."  

November 6, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (12)

"How Federal Judges Contribute to Mass Incarceration and What They Can Do About It"

The title of this post is the title of this notable new article by US District Judge Lynn Adelman and his clerk Jon Deitrich now available via SSRN. Here is the abstract:

Talk of reforming federal sentencing law by eliminating some mandatory minimum sentences is much in the air. The fact is, however, that many federal offenders are unnecessarily imprisoned in cases where there is no mandatory minimum.

This article attempts to expand the conversation about excessive imprisonment by discussing first how the federal sentencing guidelines place far too much emphasis on prison and far too little on sentences served in the community. Next, we discuss federal judges' excessive attachment to the guidelines despite their deep flaws and even after the Supreme Court has made clear that judges are free to reject them. Finally, we propose an approach to federal sentencing that is much less deferential to the guidelines and places much more emphasis on 18 U.S. § 3553(a), the parsimony statute, which requires judges to impose the least punitive sentence necessary to achieve the goals of sentencing.

November 6, 2015 in Booker in district courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6)

Reflecting on 2015's historically low number of executions (and on death penalty dogs not barking)

Exo_yearThis DPIC yearly execution page highlights that we have had only 25 executions so far throughout the United States in 2015, and this page listing scheduled executions suggests it is very unlikely we will have more than a couple more executions before the end of the year.  Statistically and historically speaking, then, 2015 will be a year with a remarkably low number of executions in the US: in every single year since 1992,there have been 30 or more executions and there were 98 executions nationwide in 1999; throughout both the 1990s and 2000s, the US averaged nearly 60 executions per year.

Lots of factors have contributed to the significant recent decline in yearly executions now resulting in 2015 becoming a record-low execution year: abolition of the death penalty in a few states, moratoria on executions in a few others, persistently effective litigation challenging state lethal injection protocols, persistently ineffective efforts by states to improve lethal injection protocols and obtain needed execution drugs, and continued judicial and public scrutiny long-ago-imposed death sentences even after standard appeals have concluded.  For what it is worth, I am highly disinclined to attribute a decline in US executions to diminished public support for the death penalty: both national polls and surveys in the states that have historically carried out the most death sentences indicate that, at least among the general public, support for a functioning death penalty system remains strong and deep. 

Though I encourage comments about what most accounts for 2015's historically low number of executions, I was moved to write this post by the realization that I have not seen or heard a single traditional death penalty advocate or "tough-and-tougher-on-crime" proponent claim that the widely-discussed uptick in homicides in some US cities might be attributable to the US now being softer on murderers.  Not long ago, when the US was averaging five or six executions every month and murder rates were in decline, there was considerable complex empirical research contending that every execution might save a dozen or more innocent lives.  But I noticed less and less of this kind research in the years before 2015, perhaps because we were still generally exeperiencing declining murder rates even as the number of yearly executions have started to decline.

Given how much talk and concern there is concerning an uptick in homicides in a number of cities, and especially given that there is much discussion and debate over whether and how criticisms of the police or recent drug epidemics or recent sentencing reforms might be playing a role, I am now struck and intrigued by the realization that traditional death penalty advocates and "tough-and-tougher-on-crime" proponents have not yet suggested there could be a link between fewer executions and more homicides in 2015.  Critically, I am not trying to make any accusations about research agendas nor to suggest that there readily could or should be significant research efforts seeking to link modern execution trends and homicide rates.  I am just observing that, despite what seems like a tendency for the "tough-and-tougher" crowd to attribute any crime spike to the nation "going soft" in some way, I have seen no effort to link the remarkably low number of executions in the US in 2015 to any crime patterns. 

November 6, 2015 in Data on sentencing, Death Penalty Reforms, National and State Crime Data, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Thursday, November 5, 2015

Lots of interesting commentary on lots of interesting criminal justice topics

Every so often I have a day when, after spending just a little time surfing the web, I find a whole lot of materials that merit a read and attention.  Today is one of those days, and here is a round-up of pieces that perhaps all merit their own post:

November 5, 2015 in Recommended reading | Permalink | Comments (2)

"Proposition 47 Progress Report: Year One Implementation"

The title of this post is the title of this recently-released report from the Stanford Justice Advocacy Project, which "was involved in the drafting of Proposition 47 and currently assists its implementation, including litigation on behalf of individual prisoners seeking reduced sentences under the new law."  Perhaps unsurprisingly, this report tells a much more positive story about the impact of Proposition 47 than has been reported by law enforcement officials and various others.  Here are the short report's "Key Findings" (without the many footnotes):

Since the enactment of Proposition 47 on November 14, 2014, the number of people incarcerated in California’s prisons and jails has decreased by approximately 13,000 inmates, helping alleviate crowding conditions in those institutions. Proposition 47 has also reduced the number of jail inmates released from custody early due to overcrowding and should generate over $150 million in state savings this fiscal year. County governments stand to save even more money: over $200 million annually, in aggregate.

According to the Legislative Analyst’s Office, prior to Proposition 47 approximately 40,000 people per year received felony sentences for the drug and property crimes targeted by the initiative.  Those offenses are now punished as misdemeanors, significantly reducing sentence lengths and costs for incarceration, litigation and law enforcement.

According to the Department of Corrections, 4,454 state prisoners have been released under Proposition 47 as of September 30, 2015.  In addition, the state will incarcerate an estimated 3,300 fewer prisoners every year because these offenders will receive misdemeanor jail sentences under Proposition 47 rather than new prison terms. In February, the prison population dropped below the capacity level ordered by the U.S. Supreme Court in Plata v. Brown, one year ahead of schedule.

According to the Board of State Community Corrections, the total statewide jail population has dropped by almost 9,000 inmates since the enactment of Proposition 47.9 Early releases from county jails due to overcrowding are down approximately 35 percent statewide.

Financial savings to the state from reduced prison costs under Proposition 47 is estimated at over $156 million this fiscal year.  Long term annual savings are estimated at $93.4 million.  These savings will be directed to the Safe Neighborhoods and Schools Fund to support mental health and drug treatment, K-12 public schools, and services for crime victims.  In May, the Governor cut over $70 million dollars from the state prison budget because of population reductions from Proposition 47.

Fewer than five percent of state prisoners released early under Proposition 47 have been convicted of a new crime and returned to prison.  Although law enforcement officials in some jurisdictions have recently complained about increasing crime rates, there is no evidence that state prisoners released early under Proposition 47 are committing those crimes. Statewide data on crime rates is not currently available, making it impossible to measure any impact on crimes rates by Proposition 47.

November 5, 2015 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (1)

Reviewing oral arguments during a dynamic SCOTUS criminal justice week that was

As detailed in this post at the start of this week, the US Supreme Court heard oral arguments this week in six cases, four of which involved criminal law issues.  Drawing from the always-terrific SCOTUSblog coverage of the work of the Justices, here are links to reviews of the arguments in the cases:

Foster v. Chapman:  "To decide, or not — that is the question"

Lockhart v. United States:  "Court appears fractured in child pornography mandatory minimum case"

Torres v. Lynch:  "The surprising absence of canons from a debate over the meaning of ambiguous statutory text"

Bruce v. Samuels:  "Surprises for both sides in prisoner fee dispute"

November 5, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

"Prosecutors are addicted to the War on Drugs: Inside law enforcement’s rabid defense of mandatory minimums"

The title of this post is the headline of this lengthy Salon article authored by Daniel Denvir. Here are excerpts:

Federal prosecutors are fighting a rearguard action to defeat criminal justice reform legislation in Congress, warning that modestly dialing back harsh mandatory minimum sentences for nonviolent drug offenders would hinder their campaign against drugs amidst a heroin crisis.

“Slashing federal mandatory minimum sentences will undermine the ability of law enforcement officials to dismantle drug trafficking organizations,” a National Association of Assistant United States Attorneys white paper on “the dangerous myths of drug sentencing ‘reform'” warns.  Reduced sentences “threaten the prosecution of many of the most dangerous and high level criminals involved in drug trafficking by undermining the cooperation incentive that the current sentencing structure creates.”

Because of harsh mandatory minimums in federal and state law, many nonviolent drug dealers have been sentenced to spend much of their life behind bars — including sentences of life without parole — for crimes as minor as delivering LSD to fellow Deadheads. Defending the justice or proportionality of such sentences is a rather difficult task. So NAAUSA isn’t focusing on that.  Instead, the group, which represents many federal prosecutors, is warning that they need the threat of harsh sentences to scare low level offenders into selling out their superiors: the big-time kingpins who have blood on their hands.

“The leverage, the hammer we have comes in those penalties,” federal prosecutor and NAAUSA president Steven H. Cook told the Washington Post in an article highlighting the group’s case against reform. “It is the one and only tool we have on the other side.”...

Cook concedes that prosecutors need the threat of draconian sentencing to tip the scales of justice in their favor, scaring defendants into pleading guilty and snitching.  In 2013, more than 97 percent of all federal cases that weren’t dismissed (which was just 8 percent) ended in guilty pleas.  The practice effectively denies people their constitutionally-enshrined right to trial, deprives judges of their role, leads to the conviction of the innocent, and disproportionately punishes people who simply lack information to trade.

“I can understand prosecutors who want to have their jobs made easier by maintaining mandatory minimums in their current form,” says Michael Collins, deputy director of the Drug Policy Alliance’s Office of National Affairs.  “At the end of the day, the criminal justice system does not exist to make the workload of certain individuals easier.”

That federal prosecutors are defending mandatory minimums in such instrumental terms might be a concession that they can no longer make a compelling argument that such harsh sentences fit the crimes for which they are imposed....

The federal drug war grinds on despite the Obama Administration’s calls for moderation. Most notably, Cook makes the startling suggestion, according to the Post, that then-Attorney General Eric Holder’s 2013 memo calling for U.S. Attorneys to limit the use of mandatory minimums is being ignored or resisted by some prosecutors....

Cook emails that “one of the fundamental concepts of any criminal justice system is that it have a deterrent effect.  Long prison sentences serve to deter people.  Trafficking in heroin is a highly profitable business and to offset the attractiveness we have to make the cost of engaging in that activity high.”

But there is no evidence that harsh prosecutions actually do anything to keep heroin off the streets and out of users noses and arms.  To the contrary, the evidence shows that the drug war has entirely failed to limit heroin supply if we look at two standard measures: price and purity.  According to a 2012 Global Commission on Drug Policy report, “since the early 1980s, the price of heroin in the US has decreased by approximately 80 percent…and heroin purity has increased by more than 900 percent.”

Indeed, the irony is that many of the most dangerous things about heroin use are created not by the drug — which is no doubt plenty dangerous and addictive — but by its prohibition, which make it difficult to measure dosage and detect dangerous adulterants like fentanyl.

The current push for reform is modest and will by no means even come close to ending mass incarceration.  But it is nonetheless historic and significant for those whose lives will be somewhat less ruined if it is passed and signed into law.  The legislation has received bipartisan support, extending beyond Congress to odd-bedfellow advocates like the ACLU, Koch Industries and a new coalition called Law Enforcement Leaders to Reduce Crime and Incarceration.

Doug Jones, a member of the law enforcement reform group and the former US Attorney for the Northern District of Alabama, says that he understands that prosecutors are concerned for their communities and also, he says, with managing their heavy caseloads. But he says that pro-reform law enforcement officials “are looking at a broader perspective” that takes account of the toll of having some of the highest incarceration rates on earth.  “More incarceration is not necessarily the safest way to do things.”

To make his case, Cook is trying to turn the political clock back to 1990, warning that “reforms” may already be causing “homicides and other violent crimes” to be “spiraling upward in cities across the country.”  This is similar to the argument in favor of a so-called “Ferguson effect,” the idea that increased scrutiny of police has deterred them from doing their job and thus caused more crime.  This idea persists despite statistics showing that there is no demonstrable nationwide violent crime spike.  In reality, violent crime has continued its long decline....

Cook states that harsh mandatory minimums are “the one and only tool we have.” But prosecutors, as evidenced by the fact that so few cases ever make it to trial, wield incredible power in the courtroom and have too often supplanted judges as the real arbiter of justice. In a just society governed by the rule of law, the only tool that prosecutors are supposed to have in court is evidence that proves beyond a reasonable doubt that a defendant committed a crime.  And when they prove it, the punishment should be proportionate.

As American Bar Association standards state, “The duty of the prosecutor is to seek justice, not merely to convict.”  For many federal prosecutors, however, the maximum amount of incarceration is still the favored solution.

November 5, 2015 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

US Sentencing Commission hearing about how to fix Johnson problems in sentencing guidelines

As this webpage reports, this morning the US Sentencing Commission is holding a public hearing in Washington, DC "to receive testimony from invited witnesses on proposed amendments to the federal sentencing guidelines."  This hearing is being live-streamed here, and this hearing agenda now has links to all the scheduled witnesses' written testimony.

Helpfully, the start of this written testimony from the first witness, Judge Irene Keeley, Chair, Committee on Criminal Law of the Judicial Conference of the United States, provide a useful overview of what the USSC is working on:

On behalf of the Criminal Law Committee of the Judicial Conference of the United States, I thank the Sentencing Commission for providing us the opportunity to comment on proposed changes to the sentencing guidelines definitions of “crime of violence” and related issues.  The topic of today’s hearing is important to the Judicial Conference and judges throughout the nation.  We applaud the Commission for undertaking its multi-year study of statutory and guideline definitions relating to the nature of a defendant’s prior conviction and the impact of such definitions on the relevant statutory and guideline provisions. We also thank the Commission for considering whether to promulgate these guideline amendments to address questions that have been or may be raised by the Supreme Court’s recent opinion in Johnson v. United States, 135 S. Ct. 2551 (2015).

The Judicial Conference has authorized the Criminal Law Committee to act with regard to submission from time to time to the Sentencing Commission of proposed amendments to the sentencing guidelines, including proposals that would increase the flexibility of the guidelines.  The Judicial Conference has also resolved “that the federal judiciary is committed to a sentencing guideline system that is fair, workable, transparent, predictable, and flexible.”

As I discuss below, the Criminal Law Committee is generally in favor of the Commission’s proposed amendments, particularly those intended to address or anticipate questions raised by Johnson.  As you know, the definition of the term “crime of violence” for purposes of the career offender guideline has been the subject of substantial litigation in the federal courts.  We support any efforts to resolve ambiguity and simplify the legal approaches required by Supreme Court jurisprudence.  Additionally, our Committee has repeatedly urged the Commission to resolve circuit conflicts in order to avoid unnecessary litigation and to eliminate unwarranted disparity in application of the guidelines.  The Commission’s proposed amendment would reduce uncertainty raised by the opinion while making the guidelines more clear and workable.  

With regard to the proposed guideline amendments concerning issues unrelated to Johnson, the Committee generally supports or defers to the Commission’s recommendations.  The Committee opposes amending, however, the current definition of “felony” in the career offender guideline. Finally, the Committee supports revising other guidelines to conform to the definitions used in the career offender guideline to reduce complexity and make the guidelines system more simple and workable. 

November 5, 2015 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Wednesday, November 4, 2015

"Death sentences are down across the country — except for where one of these guys is the defense attorney."

The title of this post is the subheadline of this notable new Slate commentary authored by Robert Smith. The piece merits a full read, and here are some excerpts:

“He looks like a killer, not a retard,” Nathaniel Carr, a lawyer in Maricopa County, Arizona, wrote about his client, Israel Naranjo, who is now on death row. Naranjo has a standardized IQ score of 72, but Carr badly botched the introduction of this evidence at trial. The trial judge found that Carr “violated the rules of criminal procedure” and admonished him for both lacking candor and filing “offensive” and “incomprehensible” motions. The Arizona Supreme Court said Carr’s behavior could be described as “willful misconduct.” Carr has represented four of the men who currently occupy Arizona’s death row....

Carr might not visit his capital clients very often, but he does seem to be dedicated to his job — his other job as a high school football coach. People who knew Carr at the county courthouse told Paul Rubin of the Phoenix New Times that “coaching seems Carr’s true passion.” Indeed, Carr “often was unavailable to clients and co-counsel on most weekday afternoons during football season—and always on game days.” This dual career did not stop Carr from billing the county an average of $370,000 per year for his services — even though some the hours he billed were for team meetings and prison visits that appear to be fictitious. (Carr did not respond to requests for comment.)

Last year marked the lowest number of new death sentences in modern American history. Nationwide, in the five-year period from 2010 through 2014, only 13 counties imposed five or more death sentences. Maricopa County is one of those 13. With 24 new death sentences between 2010 and 2014, Maricopa is the nation’s second highest producer of death sentences, after Los Angeles County, which is twice as populous.

One explanation for why counties like Maricopa hang on to capital punishment is that the prosecutors in these places are outliers who continue to pursue death sentences with abandon, mitigating circumstances and flaws in the system be damned. But prisoners sentenced to death in these counties often suffer a double whammy — they get both the deadliest prosecutors in America and some of the country’s worst capital defense lawyers. Nathanial Carr makes that list of awful lawyers, but he is not the only one from Maricopa who deserves to be included.

Herman Alcantar has been called, by a lawyer intervening on behalf of one of his former clients, “arguably the busiest capital defense attorney in the entire United States.” That’s not a compliment. Capital cases are notoriously complex and time-consuming. One trial-level capital case can be a full caseload for a defense attorney, and almost no one considers it a good idea to handle more than two active death penalty cases at a time. During the winter of 2009, Alcantar represented five pretrial capital defendants at once. He was so busy, in fact, that one month before the trial of Fabio Gomez was set to begin, Alcantar had neither filed a single substantive motion nor visited his client in more than a year. Six of Alcantar’s former clients are on death row....

Like Maricopa, Duval County, Florida, is among the few counties in America that continue to regularly impose death sentences. Since 2010, it is the second highest producer of death sentences per capita, after Caddo Parish, Louisiana. MO When Shirk took over, he fired 10 lawyers, including senior capital litigators Ann Finnell and Pat McGuinness, whose stellar representation of a wrongfully arrested 15-year-old, Brenton Butler, was the subject of an Oscar-winning documentary film, Murder on a Sunday Morning. With his experienced capital litigators gone, Shirk hired Refik Eler to be his deputy chief and the head of homicide prosecutions. Since 2008, Eler has been a defense lawyer on at least eight cases that resulted in a death sentence. That’s more than any other lawyer in Florida. (Eler declined to comment.)...

The quality of defense representation in capital cases has substantially improved in many places. But not in Caddo Parish. Like Maricopa and Duval counties, Caddo Parish, Louisiana, is one of the few districts that continue to regularly impose the death penalty. Indeed, Caddo has become the leading per capita death-sentencing machine in America. Of the death sentences imposed in Caddo Parish since 2005, 75 percent of the cases involved at least one defense lawyer who, under the new case representation standards, is no longer certified to try capital cases in Louisiana....

In the counties with the most death sentences, prosecutors and defense lawyers, often abetted by judges and other local officials, fight to maintain the status quo that Stephen Bright wrote about 20 years ago. In these places, the death penalty is still a punishment reserved mostly for the people with the worst lawyers. Disproportionate numbers of death sentences in these few counties do not result from a high number of murders, or even the unique fervor of the residents who reside there, but instead from the operation of death’s double whammy—bloodthirsty, overreaching prosecutors and woefully inadequate defense lawyers.

November 4, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)