Tuesday, April 18, 2017
US Sentencing Commission conducting public hearing with testimony on alternatives to incarceration and synthetic drugs
As detailed on this USSC webpage, the United States Sentencing Commission in now conducting a public hearing through early this afternoon. As the page details, "the purpose of the public hearing is for the Commission to receive testimony on alternatives to incarceration programs in the federal court system. The Commission will also receive testimony from experts on synthetic drugs, including their chemical structure, pharmacological effects, trafficking patterns, and community impact." The hearing is being streamed live here.
This webpage with the USSC hearing agenda has links to written testimony from all the scheduled witnesses, and this testimony provide a wealth of information and research about alternatives to incarceration and synthetic drugs.
Monday, April 17, 2017
Lots of litigation leading to lots of uncertainty as Arkansas execution dates arrive
This CNN article, headlined "Arkansas inmate has last meal as courts decide fate," reports on some of the still-in-development litigation in the Natural State as it tries to get its machinery of death operational. Here are the highlights:
After the Arkansas Supreme Court stayed the execution of two inmates, the state's attorney general asked the US Supreme Court to overturn the ruling so the execution of one could proceed.
While Bruce Ward has one other stay in place, Don Davis -- who had his last meal -- could be the first executed over the next 10 days if Attorney General Leslie Rutledge prevails with the U.S. Supreme Court.
Amid the flurry, the 8th U.S. Circuit Court of Appeals overturned a Saturday ruling by a federal judge that temporarily halted all eight executions.
That U.S. District Court judge had ruled that the prisoners will likely succeed in demonstrating the state's proposed method of lethal injection is unconstitutional. But the appeals court said the use of the method of execution, which includes the drug, midazolam, did not create undue severe pain.
The executions were set for this month because Arkansas' supply of midazolam expires on May 1.
Gov. Asa Hutchinson issued a statement Monday evening that said, in part, "We have asked the US Supreme Court and hope to get a decision later tonight."
The attorney for Davis and Ward requested stays of execution until the US Supreme Court rules on an upcoming case concerning inmate access to independent mental health experts. The justices are set to hold oral arguments on April 24....
Late Monday, the Arkansas Supreme Court also overturned a temporary restraining order, issued by a state judge, that prevented Arkansas from using vecuronium bromide it had purchased from McKesson Medical-Surgical in executions. The company had argued the medication was not meant to be used in capital punishment.
The Arkansas Supreme Court had already blocked Ward's execution due to questions about his mental competency. As of Monday evening, that stay remained.
As officials awaited further court action, Davis had his "last meal" at the Cummins Unit, where the execution chamber is located. According to the Arkansas Department of Correction, Davis chose fried chicken, rolls, great northern beans, mashed potatoes and strawberry cake.
Davis' current execution warrant expires at 1 a.m. ET (midnight CT).
UPDATE: This New York Times article provides a more fulsome accounting of all of Monday's litigation that ended up with two scheduled executions being stay. And the lengthy article ends with a preview of what the rest of this week holds:
A spokesman for the state prison system, Solomon Graves, said the Arkansas authorities would be prepared to carry out the other executions that Mr. Hutchinson set.
“The Department of Correction’s attention now shifts to the executions that are scheduled for Thursday,” Mr. Graves said. “We are under the impression, and under the assumption, that those executions will be carried out as scheduled.”
They are scheduled for 7 p.m. on Thursday.
"Should NC sex offenders pay to be on registry?"
The question in the title of this post is the headline of this local article, which gets started this way:
Sex offenders would have to pay an annual fine to be listed on the state’s sex offender registry under a bill proposed by N.C. Rep. Ted Davis, R-New Hanover. “There is a cost to continuing to have them on that registry,” Davis said. “The point of this is to get revenue to keep these people on the sex offender registry.”
House Bill 684 calls for sex offenders to pay an initial and annual fee of $90 to be on the registry. The money would be directed to county sheriff’s offices to offset the costs associated with registering sex offenders, according to the bill. Failure to pay the fee does not mean a registered sex offender isn’t listed on the registry -- the state attorney general’s office could sue to collect unpaid fees, according to the bill.
Many states require fees to be listed on the registry. In Tennessee, for example, the fee is $150 per year.
Cristina Becker, criminal justice debt fellow for the American Civil Liberties Union of North Carolina (ACLU), said the bill could amount to adding an additional burden to someone who has served their jail term, serves on probation, lives under the restriction of the sex offender registry and is already facing a host of other fees associated with their conviction. “It can become a perpetual form of punishment,” she said of an annual fee. Becker said that because many released offenders “are indigent, their probationary periods can be extended for as long as they owe money.”
Split Second Circuit panel declares within-guideline child porn possession sentence of 225 months "substantively unreasonable"
A dozen years after Booker, the reversal of any federal sentence as substantively unreasonable is still quite rare and notable. Today, a Second Circuit panel has issued such a rare and notable decision in US v. Jenkinss, No. 14-4295 (2d Cir. April 17, 2017) (available here). Here are excerpts from the start and heart of the majority opinion:
A jury found Joseph Vincent Jenkins guilty of one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and one count of transportation of child pornography in violation of 18 U.S.C. § 2252A(a)(1), based on the government’s proof at trial that Jenkins owned a collection of child pornography and brought it across the U.S.-Canada border on the way to a family vacation for his personal viewing.
The United States District Court for the Northern District of New York (Glenn T. Suddaby, Chief Judge) imposed concurrent sentences of 120 months for the possession count, the statutory maximum, and 225 months for the transportation count, just below the statutory maximum of 240 months. The court also imposed a term of 25 years of supervised release. Jenkins challenges his conviction and the procedural and substantive reasonableness of his sentence....
Here, § 2G2.2 yielded a sentence that derived substantially from “outdated” enhancements related to Jenkins’s collecting behavior. Meanwhile, the government has not alleged that he was involved in the production or distribution of child pornography or that he was involved in any child pornography community. In particular, the government did not claim he used peer-to-peer sharing software, distributed images, or participated in chat rooms devoted to child pornography. Nor does the government allege that he contacted or attempted to contact a child or that he engaged in any “sexually dangerous behavior” separate from his crimes of conviction. Thus, here, as in Dorvee, § 2G2.2 cannot “bear the weight assigned it” because the cumulation of repetitive, all-but-inherent, enhancements yielded, and the district court applied, a Guideline range that failed to distinguish between Jenkins’s conduct and other offenders whose conduct was far worse. Cavera, 550 F.3d at 191. It was substantively unreasonable for the district court to have applied the § 2G2.2 enhancements in a way that placed Jenkins at the top of the range with the very worst offenders where he did not belong.
The full majority opinion in Jenkins has lots of substantive sentencing review discussion that defies easy summary and that merits review by anyone deeply engaged in post-Booker sentencing and appeals. In addition, Judge Kearse has a small dissenting opinion which highlights the defendant's aggressive disagreement with his prosecution and concludes this way:
Given this record in which Jenkins, inter alia, disputed any justification or authority for prosecuting him, and argued that instead the children who were victims of the child pornography should have been prosecuted, the district court's concern for the likelihood that, without a lengthy prison term, Jenkins would re-offend was not unreasonable, and I cannot conclude that the imposition of the prison term that was no higher than midway between the top and bottom of the Guidelines range "cannot be located within the range of permissible decisions."
Sunday, April 16, 2017
Reviewing the realities of a new sheriff in charge at the US Department of Justice
The Hill has this lengthy new article, headlined "Sweeping change at DOJ under Sessions," reviewing various ways in which the new Attorney General has set forth new policies and set a new tone for the work of the Department of Justice. Regular readers will find everything in the article familiar, but some of the commentary about DOJ changes are still new and notable. Here are excerpts:
Attorney General Jeff Sessions has brought sweeping change to the Department of Justice. In just two months as the nation’s top cop, Sessions has moved quickly to overhaul the policies and priorities set by the Obama administration....
Alex Whiting, faculty co-director of the Criminal Justice Policy Program at Harvard Law School, said it appears Sessions is resurrecting the tough on crime policies last seen during the George W. Bush administration. “Obama moved away from that approach, and I think in the criminal justice world there seemed to be a consensus between the right and left that those policies, those rigid policies of the war on drugs and trying to get the highest sentence all the time, had failed,” he said. “I don’t know if he is really going to be able to persuade the department to follow his lead on this.”
In March, Sessions asked the remaining U.S. attorneys appointed by former President Obama to resign. While previous administrations took the same step, Whiting questioned whether Sessions would be able find 94 prosecutors who will back the DOJ’s new approach. “He can order and it will have an effect, but how far this gets implemented and with what kind of energy I think is really an open question, and if they will be able to persuade the rank and file to return in a full-fledge way to those policies,” he said.
In a statement to The Hill, DOJ spokesman Ian Prior said Sessions and the Justice Department are focused on fighting violent crime and protecting the public. “When it comes to sanctuary cities, all we are requiring is that they, just like every other individual in the United States, follow Congress’ duly enacted laws,” he said. “If requiring individuals and entities to follow the law and combating violent crime are seen as dramatic reversals, then we fully support such a sea change.”
While the attorney general has acknowledged that overall crimes rates are at historic lows, he has warned that trend is about to reverse. Even if that’s true, Inimai Chettiar director of the Justice Program at the Brennan Center for Justice argued that arresting and incarcerating people is not the solution. “Mass incarceration is not contributing to mass crime declines, but it doesn’t appear Jeff Sessions knows that,” she said.
Advocates of scaling back mandatory minimums for prison sentences are expecting to see a major shift in the way crimes are prosecuted. “To the extent the Obama administration was saying, let’s be a little more judicious in the use of mandatory minimums, I think Sessions plans to put his foot on the gas and apply them anywhere and everywhere,” said Kevin Ring, vice president of Families Against Mandatory Minimums.
President Trump’s son-in-law and senior adviser Jared Kushner raised eyebrows late last month when he took a meeting with Sens. Chuck Grassley (R-Iowa), Dick Durbin (D-Ill.) and Mike Lee (R- Utah), the lead sponsors on the criminal justice reform bill that stalled in the last session of Congress. While Sessions has never been a fan of efforts to reduce mandatory minimums, Chettiar called the meeting encouraging. “Kushner is supportive of criminal justice reform. … I think it’s possible there’s a strong advocate there,” she said.
Ring, however, isn’t holding his breath. “One day he’s on the Hill talking sentencing reform then next day he’s visiting the Middle East,” Ring said of Kushner. “He’s got two easy gigs — passing sentencing reform and bringing peace to the Middle East. Good luck with that.
Law enforcement groups that support Sessions, meanwhile, say the new attorney general is focused on the right things. “I think Sessions has brought a new focus to the core mission of the department, which is to make sure the nation is safe and secure in its law and make sure law enforcement operations are focused on the thing that matters most, preventing crime,” said Jonathan Thompson, executive director of the National Sheriffs’ Association.
Thompson said Sessions is taking a more holistic approach in preventing crime. “I think there’s a tendency to look at people who are incarcerated and say I really wish they weren’t there, but unfortunately they make personal choices,” he said. “The attorney general is saying you have to look at that end. You have a crime problem that could be growing and how do we respond to it? Obviously something worked.”
UPDATE: Over at Crime & Consequences, Bill Otis has this lengthy new post discussing at length everything that he thinks is wrong about the comments by Alex Whiting reprinted above near the start of the excerpt. Everyone interested in the work of DOJ should check out Bill's post, and here is how it concludes:
Finally, I don't know who Prof. Whiting talks to at DOJ, but the career people I talk to are thrilled with Jeff Sessions' priorities, and are chomping at the bit -- not reluctant -- "to follow his lead on this."
If the sentencing "reform" people had a good case on the merits, why do they need to resort to this amount of deceit?
Saturday, April 15, 2017
Utah judge under fire for calling former bishop "good man" in course of his rape sentencing
As reported in this local article, "complaints are mounting against a Utah County judge who earlier this week praised a former Mormon bishop before sending him to prison for sexually abusing two women." Here are the details:
Fourth District Judge Thomas Low on Wednesday became emotional as he handed down a prison sentence to Keith Robert Vallejo, whom a jury convicted of 10 counts of second-degree felony forcible sexual abuse and one of count of object rape, a first-degree felony. "The court has no doubt that Mr. Vallejo is an extraordinary, good man. But great men," the judge said Wednesday before taking a long pause, "sometimes do bad things."
Two women testified at the trial that Vallejo had inappropriately touched them during separate stays at his Provo home in 2013 and 2014.
Julia Kirby — who was 19 when Vallejo, her brother-in-law, abused her — told The Tribune after the sentencing that she was shocked by the judge's words to her abuser. Now, she plans to file a judicial complaint against him. And she's not the only one.
Restore Our Humanity, a Utah civil rights group that has launched an initiative to help sexual assault victims, will also file a complaint against Low. Director Mark Lawrence said Saturday that Low's comments showed "absolute disregard" for Kirby, who was sitting in the courtroom that day. "He completely disregarded her," Lawrence said. "He did something that we see happening over and over from position in authority dealing with these kind of cases: Making the perpetrator into the victim, showing sympathy and praise for the perpetrator and trying to make him into the victim. It's completely inappropriate."
Lawrence said he expects to file the complaint after reviewing transcripts of Low's comments this next week. He said the goal of the complaint is not to disbar Low, but to have him sanctioned and perhaps go through training to better understand sexual assault victims. "There are some people who would think that we're making a big issue out of this," Lawrence said. "But this isn't a simple misdemeanor or victimless crime. Sexual assault cannot be taken lightly, and everyone must stand up for these victims and survivors."
Criticism of Low initially began in March, after The Tribune published a story about Low's decision to allow Vallejo to remain free on bail pending sentencing and return home to his wife and eight children — even after the jury handed down the guilty verdicts at the February trial. Kirby said last month that she felt the decision indicated that Low did not believe that she and the other woman had been abused. Low reversed that decision during a March 30 hearing, and Vallejo had been at the Utah County jail until his Wednesday sentencing.
Jennifer Yim, the executive director of the Utah Judicial Performance Evaluation Commission, told the Associated Press that the commission has received roughly 40 emails, six voicemails and some Facebook messages about Low's handling of this case since late March.
Ryan McBride, the prosecutor on the case, said Low's comments were inappropriate and said it may have come in response to more than 50 character letters about Vallejo, most of them detailing the good things he has done. The defendant's brother spoke at the hearing and compared Vallejo to Jesus in making the argument that he was wrongly convicted, McBride noted. "I don't think it's wrong to acknowledge the good things that someone has done in their lives," the prosecutor told The Associated Press. "But I think whenever you do that in a case like this, you've also got to say, 'But it doesn't excuse what you've done.' "
Low on Wednesday sentenced Vallejo to concurrent sentences of one-to-15 years in prison for each of the second-degree felonies, and a five-years-to-life term for the object rape charge.
The title of this post is the title of this new paper authored by Melissa Hamilton available via SSRN. Here is the abstract:
This Article is concerned with disparities in penalty outcomes. More specifically, the study investigates upward departures in the federal guidelines-based sentencing system. No other research to date has explored upward departures in detail, despite their unique consequences to individuals and their effects on the system. Upward departures obviously lead to lengthier sentences and symbolically represent a dispute with the guidelines advice. Upward departures are discretionary to district judges and thus may lead to disparities in sentencing and exacerbate the problem of mass incarceration in this country.
The Article contextualizes the legal, policy, and practical reasons that render upward departures uniquely important decisions. Two theoretical perspectives suggest why judges may assess that an individual deserves an upward departure (the focal concerns perspective) and why upward departures may be more prevalent in some courts (courtroom communities’ perspective).
The study capitalizes on a more sophisticated methodology than utilized in most criminal justice empirical research. The study presents a multilevel mixed model to test the effects of a host of legal and extralegal explanatory factors on the issuance of upward departures at the case level (called fixed effects) and whether those same factors are significant at the group level — i.e., district courts — to determine the extent of variation across districts (called random effects). The results indicate that many of the legal and extralegal factors are relevant in individual cases (i.e., individual disparities) and indicate significant variations across district courts exist (i.e., regional disparities).
Friday, April 14, 2017
Is Arkansas really going to carry out seven (uneventful?) executions over the next two weeks?
The question in the title of this post is a slight variation on a question a student posed to me yesterday, and I really did not have a confident prediction. But these two new pieces discussing Arkansas's plans highlight that others are feeling somewhat more confident about what lies ahead in the Natural State:
From the Arkansas News, "Arkansas governor confident executions will go smoothly"
Gov. Asa Hutchinson on Thursday said he is confident the state Department of Correction can successfully carry out seven executions over an 11-day span starting Monday and defended his decision to set the unprecedented schedule.
In a news conference at the Governor’s Mansion, Hutchinson also expressed confidence in the ability of the sedative midazolam to render the inmates unconscious and said he retains the option to halt any of the executions but does not expect to do so.
The governor told reporters he paid a visit Wednesday to the Department of Correction’s execution chamber in Lincoln County and was satisfied the staff can carry out the plan successfully. Arkansas last executed an inmate in 2005. “I’m not going to go into which staff is doing what at the Department of Correction, but as I was there yesterday, they are experienced, they work on it, they practice it, they don’t take it lightly,” he said. “They know what they’re doing.”
The plan has drawn international attention and has been criticized by groups and individuals who have called it an “assembly line” and a “train wreck.”
From the Washington Post, "Arkansas plans to execute 7 men in 11 days. They’re likely to botch one."
On April 17, Arkansas is scheduled to execute seven men over a period of 11 days. If carried out, that will be the most executions performed in such a short time since the modern death-penalty era began in 1976.
The reason: Arkansas’ supply of the controversial drug it is using for executions, midazolam, is set to expire April 30. Midazolam is medically used as an anti-anxiety sedative, not an anesthetic. Experts have concerns about the drug’s ability to render a person fully unconscious, heightening the risk of an unconstitutionally cruel punishment. The lawyers defending the men scheduled for death are arguing that the short time will limit their ability to provide effective counsel and that the execution team will be so stressed that they will probably make mistakes.
UPDATE: There have been consequential legal developments in Arkansas since I authored this post roughly 24 hours ago. This local article provides the highlights in its opening paragraphs:
A federal judge issued an injunction early Saturday to halt the executions of several condemned Arkansas inmates, creating another barrier to the state's plan to put them to death over an 11-day period starting Monday.
The Arkansas Attorney General's office called the decision "unfortunate" and filed a notice of appeal with the 8th U.S. Circuit Court of Appeals.
The ruling came a day after the Arkansas Supreme Court first issued an emergency stay blocking Bruce Ward's execution. That order didn't affect the other 6 condemned men, but Pulaski County Circuit Judge Wendell Griffen ruled a short time later that a separate complaint filed by a medical supplier was cause to issue a temporary restraining order blocking all the executions. The state Attorney General, though, on Saturday asked the state Supreme Court to reverse Griffen and to remove him from the case.
U.S. District Judge Kristine Baker's ruling, issued shortly after 6 a.m., applies to all of the scheduled executions. Click here to read the full order 📄.
Baker wrote that "there is a significant possibility that plaintiffs will succeed on the merits of their Eighth Amendment challenge to Arkansas’s lethal injection protocol."
Over-burdened New Orleans public defenders talk of challenges to 60 Minutes
As previewed here, this Sunday night's broadcast of 60 Minutes will have a notable segment on the New Orleans justice system with notable commentary from attorneys who have work in the New Orleans Public Defenders Office. Here is how the segment is previewed:
New Orleans public defenders tell Anderson Cooper that innocent people have gone to jail because they've lacked the resources and time to defend them properly
Past and current attorneys of the New Orleans Public Defenders Office tell Anderson Cooper they believe innocent clients have gone to jail because they lacked the time and resources to defend them properly. The system is so overburdened that in 2016 New Orleans Chief Public Defender Derwyn Bunton began ordering his staff to refuse to take on clients facing the most serious felonies. Cooper’s report on the New Orleans justice system will be broadcast on 60 Minutes Sunday, April 16 at 7 p.m. ET/PT.
All nine of the attorneys agreed when asked by Cooper if they believed an innocent client went to jail because they didn’t have enough time to spend on their case. When 52 attorneys are responsible for 20,000 criminal cases a year, as in New Orleans, they do their best says Bunton. But often, indigent defendants will not get the quality defense they are entitled to. “You can’t provide the kind of representation that the Constitution, our code of ethics and professional standards would have you provide,” says Bunton. Asked if it’s not better to have a busy lawyer than no lawyer, Bunton does not hesitate, “No. A lawyer poorly resourced can cause irreparable harm to a client.”
Cooper follows one case of a man arrested in New Orleans who sat in jail for more than a year before an attorney presented evidence to the court showing he did not even match the suspect’s description. He also speaks to the man’s original public defender who got so fed up with not having the time to provide quality defense, she quit.
At the time, Lindsay Samuel represented nearly a hundred clients facing a life in prison. She felt she was “Always coming up short. The first thousand clients you feel terrible. The second thousand clients, you feel awful,” she recalls. “Every day my clients are going away for a decade and I just move along to the next client,” says Samuel.
Bunton shows Cooper a warehouse full of the nearly half million cases handled by his office in the past decade. He says 90 to 95 percent of the defendants in those cases pled guilty, many because they lacked confidence in an overburdened public defender being able to provide them with an adequate defense. The justice system in New Orleans has become a criminal processing system says Bunton, “A conveyor belt that starts when you are arrested and then there’s hands that touch you on your way to prison,” he tells Cooper. “It’s not about figuring out...your innocence...and that’s what we are fighting to change,” says Bunton.
Thursday, April 13, 2017
"Three Reasons Why Virginia May Execute an Innocent Man"
The title of this post is the headline of this notable new commentary authored by LawProf Cara Drinan. Here are excerpts:
In 2006, a jury convicted Ivan Teleguz of hiring someone to kill Stephanie Sipe, his ex-girlfriend and the mother of his child. Now, more than a decade later, Virginia is scheduled to execute Teleguz on April 25, 2017, and there is substantial evidence suggesting that Teleguz is innocent.
How is that possible in the United States – the land of the free, where a poor person is entitled to legal counsel and a criminal defendant has numerous chances to be heard in court? Actually, it happens with some ease, and in part, it happens because of conscious choices we have made about our legal system. There are at least three reasons for this counter-intuitive reality.
1. Prosecutors, Not Judges or Juries, Resolve Most Criminal Cases in America ...
Teleguz’s case demonstrates this phenomenon well. There was no physical evidence connecting him to the murder of Ms. Sipe; the prosecution’s case was based on the testimony of three witnesses. Since his trial, two of those witnesses have recanted their testimony and have admitted that they lied when they implicated Teleguz in exchange for favorable treatment from the government. The Commonwealth repeatedly told the third witness, Ms. Sipe’s actual killer, that he would face the death penalty unless he “cooperated” with them by agreeing to testify against Teleguz in Ms. Sipe’s murder and sticking to that story. Not surprisingly, he did just that and he is serving out a life sentence while Teleguz faces imminent death.
2. The Myth of the Right to Counsel ...
Teleguz suffered at the hands of a broken system. Counsel in death penalty cases are held to a heightened standard of performance, and as part of that standard, they are expected to conduct extensive, careful investigation to prepare for the sentencing phase of the trial. Teleguz’s trial counsel was far from diligent, and as a result, the jury heard evidence that Teleguz was involved in another arranged murder. This evidence persuaded the jury to vote for the death penalty. Here’s the wrinkle: not only was Teleguz not involved in such a crime, the crime never happened. Years after his trial, that fact came to light, and the government has now acknowledged that the alleged prior murder did not happen. But the jury verdict stands.
3. Not So Appealing Appeals Process ...
Surely, the multi-layered appellate process would ferret out an error of this magnitude and provide a remedy? Not necessarily. In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act (“AEDPA”) and in the process “gutted the federal writ of habeas corpus, which a federal court can use to order the release of someone wrongly imprisoned.” Today, the American appellate process is an intricate web of procedural rules, and, in fact, "we have purposefully designed our system of appellate review to examine almost everything but factual guilt or innocence."
That might be defensible if we could be confident in the accuracy of our criminal justice system, but we can’t be. Since 1989, there have been more than 2,000 exonerations in the United States. In 2015 alone, 58 people were exonerated of homicide convictions. Like many of those individuals, Teleguz has consistently maintained his innocence. Today there is new evidence to support that claim that no court has fully examined.
In the next few days, Governor Terry McAuliffe can’t do much about prosecutorial overreach, problems with indigent defense, and the complex appellate process. But he can recognize that, because of these systemic failures, there is substantial doubt about Teleguz’s guilt. Governor McAuliffe should grant clemency and stop Teleguz’s execution.
This recent AP article, headlined "Conservatives urge Virginia governor to spare inmate's life," highlights that it is not only a law professor urging Gov McAuliffe to act in this capital case.
UPDATE: A commentor has usefully noted that the Fourth Circuit opinion in this case, which is available here, provides a different perspective on this case and Teleguz's claims of innocence.
"Four Decades and Counting: The Continued Failure of the War on Drugs"
The title of this post is the title of this new Policy Analysis from the Cato Institute authored by Christopher Coyne and Abigail Hall. Here is the 28-page document's Executive Summary:
Private individuals and policymakers often utilize prohibition as a means of controlling the sale, manufacture, and consumption of particular goods. While the Eighteenth Amendment, which was passed and subsequently repealed in the early 20th century, is often regarded as the first major prohibition in the United States, it certainly was not the last. The War on Drugs, begun under President Richard Nixon, continues to utilize policies of prohibition to achieve a variety of objectives.
Proponents of drug prohibition claim that such policies reduce drug-related crime, decrease drug-related disease and overdose, and are an effective means of disrupting and dismantling organized criminal enterprises.
We analyze the theoretical underpinnings of these claims, using tools and insights from economics, and explore the economics of prohibition and the veracity of proponent claims by analyzing data on overdose deaths, crime, and cartels. Moreover, we offer additional insights through an analysis of U.S. international drug policy utilizing data from U.S. drug policy in Afghanistan. While others have examined the effect of prohibition on domestic outcomes, few have asked how these programs impact foreign policy outcomes.
We conclude that prohibition is not only ineffective, but counterproductive, at achieving the goals of policymakers both domestically and abroad. Given the insights from economics and the available data, we find that the domestic War on Drugs has contributed to an increase in drug overdoses and fostered and sustained the creation of powerful drug cartels. Internationally, we find that prohibition not only fails in its own right, but also actively undermines the goals of the Global War on Terror.
Florida judge imposes 100 years in prison for child porn possession for first offender claiming innocence
This local article about a state sentencing in Florida, headlined "Man, 37, sentenced to 100 years for child porn conviction," reports on a remarkably severe sentence handed down yesterday. Here are the details:
A 36-year-old St. Johns County man is looking at spending the rest of his life behind bars after Circuit Court Judge Howard Maltz sentenced him to 100 years in prison Wednesday morning. The sentencing came nearly two months after a jury found Jesse Graham Berben guilty on 20 counts of possession of child pornography at the end of a two-day February trial.
Berben, who maintained his innocence even through his sentencing hearing Wednesday, was arrested by St. Johns County Sheriff’s Office detectives in April 2015 after authorities obtained a search warrant for his Washington Street apartment — where he was living with his father at the time — and finding files containing the pornography on his computer.
His arrest report indicates that Berben denied knowing anything about the files or how they ended up on his computer. While he admitted to having a peer-to-peer file-sharing program that he used to download music, he denied using his computer to keep or download child pornography and said that if such files were found that it must have been compromised in some way.
Berben’s attorney, Tom Cushman, said after the sentencing that his client had maintained his innocence to him from the day that they first met, and that Berben had been offered a plea agreement from the state that would have netted him a prison sentence of about 5 years, “but he refused to plead because he said he was not guilty and he wasn’t going to plead guilty to something he didn’t do and become a registered sex offender with it.”
The sentence he ultimately received was more than four-times the “lowest permissible” sentence Maltz could have handed down based on sentencing guidelines submitted in court Wednesday (the maximum sentence was life in prison). It was also beyond even what Assistant State Attorney Mitch Bishop asked for while standing in for his colleague Chris Ferebee, who prosecuted the case.
Bishop, in his remarks before sentencing, said that the images — most of them movie files — found on Berben’s computer depicted children, some as young as 5-years-old, engaged in various sex acts. He pushed back on the notion, expressed by some, that merely possessing such images is not nearly as bad as carrying out the acts depicted.
“The problem with that is that viewing these images, possessing these images creates a market for someone else to produce them,” he said. “I don’t think that point should be overlooked.” Berben, he argued, not only downloaded the files but kept them in the file sharing program, making them available to others.
Bishop asked Maltz for a sentence that would include the rest of Berben’s “meaningful life,” arguing that someone who is “sexually gratified by” or even “sexually curious” by such images does not possess much “rehabilitative potential.”...
Cushman, citing his client’s 10 years of military service and lack of any criminal record, asked Maltz to consider something far less than Bishop asked for, and pointed out that the sentencing guidelines for the possession of child pornography made his client eligible for a punishment “possibly greater than if he’d actually committed the act.”...
Maltz, though, citing the images seen at the trial, called the case “quite troubling” and said he agreed with the state’s argument against any notion that possession of the images is a victimless crime. “I see little difference in culpability between those who actually sexually abuse and exploit children, and those who encourage and promote the conduct by downloading and sharing videos of such, which I think warrants a significant sentence,” he said.
Maltz sentenced Berben to five years in prison for each of the 20 counts, to be served consecutively. Cushman said Berben plans to appeal the sentence.
I am pretty sure that Florida lacks any general parole provisions, so the defendant in this case is certain to die in prison if his convictions or sentence is not modified on appeal. Notably, a somewhat similar case from Florida a few years ago, the Vilca case discussed here where an LWOP sentence was imposed for child porn possession, had convictions reversed based on a discovery violation as noted here. Also, in a similar case from South Dakota, the Bruce case discussed here, the South Dakota Supreme Court found a 100-year prison sentence for child porn possession constitutionally excessive.
It will be interesting to see if this case might get the level of attention that some others involving extreme prison terms sometimes do. And it will be interesting to see how the Florida courts engage with these matters on appeal.
Wednesday, April 12, 2017
Effective coverage of the considerable challenges of sentencing reform in Louisiana
Over the last month, The Advocate has done a fine job covering debates over sentencing reforms in Louisiana, and the most recent of the article (listed last below) prompted me to collect come of this reporting in this space:
Might Dylann Roof have claimed ineffective assistance of counsel if he didn't get sentenced to death?
Most murderers who get sentenced to death at some point claim their lawyers were constitutionally ineffective. But this new local article, headlined "Dylann Roof calls his lawyers 'sneakiest people I ever met,' says mental health defense was 'a lie'," suggests one high-profile condemned mass murderer might have claimed his lawyer was ineffective if he wasn't sentenced to death. The full article is fascinating, and here is how it gets started:
Calling his attorneys "the sneakiest group of people I have ever met,” Dylann Roof reached out to federal prosecutors on the eve of his hate crimes trial in an effort to scuttle a planned mental health defense aimed at sparing him the death penalty.
Roof blistered his legal team in a three-page jailhouse letter, accusing them of tricking him into undergoing tests to challenge his competency to stand trial for killing nine black worshippers at Charleston's Emanuel AME Church in June 2015. Roof told prosecutors he wanted no part of this strategy, which he labeled "a lie."
"Because I have no real defense, my lawyers have been forced to grasp at straws and present a pathetic, fraudulent excuse for a defense in my name," he wrote in early November. "They have regularly told me in an aggressive manner that I have no say in my own defense, that my input doesn't matter, and that there is nothing I can do about it."
Roof's letter was among more than 70 filings that U.S. District Court Judge Richard Gergel unsealed Tuesday – one day after the 23-year-old white supremacist pleaded guilty to nine counts of murder in state court. Though Roof’s federal trial ended in January with a death sentence, Gergel had been reluctant to release records about his mental status while the state case was pending.
The newly unsealed documents show procedural disagreements over how Roof’s mental health would be evaluated and growing discord between the killer and his top-flight legal team of capital defense specialists. Roof railed at their “slick” tactics, and they in turn expressed frustration with a “delusional” client who seemed preoccupied with fantasies that white supremacists would break him out of prison and make him governor of South Carolina, the documents show.
In the handwritten November letter to “Prosecution,” Roof alleged that his legal team had told him he was being tested to determine if a thyroid condition had affected his brain when they were really compiling evidence to challenge his competency. He said he wanted the people trying to convict him to know that “what my lawyers plan to say in my defense is a lie and will be said without my consent or permission.”
“My lawyers have purposely kept me in the dark about my defense until the last minute in order to prevent me from being able to do anything about it, which is why I have been forced to write to you,” he stated. “Throughout my case they have used scare tactics, threats, manipulation, and outright lies to further their own, not my, agenda.” He warned prosecutors not to let his legal team “fool you or the court like they’ve fooled me.”
Prosecutors notified Roof's lawyers after receiving the letter, and lead defense attorney David Bruck agreed that Gergel, the trial judge, needed to see the missive, according to a chain of emails. After a closed-door meeting on Nov. 7, Roof's lawyers pleaded with the judge to delay planned jury selection in the case so Roof could undergo an extensive mental competency review. They repeatedly described Roof as delusional, and noted his "depression, extreme anxiety and autism spectrum disorder."
They stated that their tenuous working relationship with him had suffered "a severe rupture" when he "openly attempted to sabotage his own case" by reaching out to prosecutors. "(W)e are now faced with a client who would rather die than be labeled mentally ill or neuro-developmentally impaired, and who would rather communicate and ally himself with those who propose to execute him than us," his attorneys wrote.
The attorneys stated that Roof believed "the very white nationalists whom he considers his allies" would turn on him and persecute him for his "perceived infirmities" if he were to be labeled incompetent. They stated that Roof had "an irrational belief that being labeled mentally impaired will affect the defendant's standing with some hypothetical white nationalists whom the defendant has never met or communicated with — and cannot even name — but whom he believes may appoint him to a high government position some day."
They attached notes indicating that Roof had been so distracted by his delusional ideas that he was unable to respond to the basic needs of his defense. Among his odd notions was a fantasy that white supremacists would stage a prison break to rescue him from captivity, they said. "His single-minded focus on being rescued and made governor of South Carolina makes salient to him things that are irrational and he cannot rationally assist counsel as a result," they stated.
Tuesday, April 11, 2017
Looking at the latest data on private prison populations in the US
The Pew Research Center has this new "Fact Tank" post titled "U.S. private prison population has declined in recent years." The piece effectively reviews a lot of private prison data, and here are excerpts:
After a period of steady growth, the number of inmates held in private prisons in the United States has declined modestly in recent years and continues to represent a small share of the nation’s total prison population.
In 2015, the most recent year for which data are available, about 126,000 prisoners were held in privately operated facilities under the jurisdiction of 29 states and the federal Bureau of Prisons. That’s an 83% increase since 1999, the first year with comparable data, according to the Bureau of Justice Statistics (BJS). By comparison, the total U.S. prison population increased 12% during that span.
In more recent years, however, both the private and overall U.S. prison populations have declined at modest rates. The private prison population has shrunk by 8% since its peak in 2012, while the overall prison population has fallen by 5% since its peak in 2009. (The state private prison population peaked in 2012 with 96,774 prisoners, while the federal private prison population reached its peak a year later in 2013, with 41,159 prisoners.)...
Since 1999 — the first year BJS began collecting data on private prisons — inmates in privately run facilities have made up a small share of all U.S. prisoners. In 2015, just 8% of the nearly 1.53 million state and federal prisoners in the U.S. were in private facilities, up slightly from 5% in 1999.
State inmates make up the majority of the U.S. private prison population, as well as the overall U.S. prison population. In 2015, state prisoners made up 72% of the U.S. private prison population and 87% of the overall U.S. prison population.
In 2015, nearly three-quarters (73%) of all state prisoners in private facilities were held in the Sun Belt region of the U.S., including Texas, which has the largest private state prison population in the country. (Texas also has the second-largest state population overall.) The Lone Star State’s private prison population peaked at 20,041 in 2008, or 21% of all state inmates in privately run prisons at the time. By 2015, Texas’ private prison population had dropped to 14,293.
Florida had the second-largest private prison population (12,487) in 2015, while Georgia and Oklahoma had the third- and fourth-largest with 7,953 and 7,446, respectively. Arizona had the fifth-largest state private prison population (6,471) in 2015, a drop since the state’s peak of 8,971 in 2009.
The number and share of private prisoners under federal jurisdiction have grown since 1999. That year, 3,828 federal prisoners were being held in private prisons, comprising just 6% of the total private prison population. By 2015, the number of federal prisoners in private facilities had jumped to 34,934, accounting for 28% of the U.S. private prison population. At the same time, the share of prisoners in private facilities under state jurisdiction shrunk from 94% in 1999 to 72% in 2015.
In 2015, nearly 18% of all federal prisoners were being held in private prisons, a jump from 3% in 1999. By comparison, prisoners held in private prisons have made up less than 10% of the state prison population since 1999....
In February, Attorney General Jeff Sessions reversed a directive from the Obama administration to phase out work with private prisons at the federal level. The original Obama directive was motivated by a 2016 audit, which found that federal “contract” prisons had more safety and security incidents than comparable government-run prisons.
AG Sesssions issues memo to federal prosecutors that "mandates the prioritization of criminal immigration enforcement"
As reported in this press release from the US Justice Department, "Attorney General Jeff Sessions today spoke to Customs and Border Protection personnel at the United States-Mexico border in Nogales, Arizona," and in his remarks the AG "announced that he has issued [this] attached memo to United States Attorneys that mandates the prioritization of criminal immigration enforcement." Here is more from the press release and the speech it references:
The memo directs federal prosecutors to focus on particular offenses that, if aggressively charged and prosecuted, can help prevent and deter illegal immigration. Additionally, the Attorney General revealed that the Department of Justice will add 50 more immigration judges to the bench this year and 75 next year. He also highlighted the Department's plan to streamline its hiring of judges, reflecting the dire need to reduce the backlogs in our immigration courts....
[From the AG's speech:]
[T]oday, I am pleased to stand here with you and announce new guidance regarding our commitment to criminal immigration enforcement. As we speak, I am issuing a document to all federal prosecutors that mandates the prioritization of such enforcement.
Starting today, federal prosecutors are now required to consider for prosecution all of the following offenses:
The transportation or harboring of aliens. As you know too well, this is a booming business down here. No more. We are going to shut down and jail those who have been profiting off this lawlessness — people smuggling gang members across the border, helping convicted criminals re-enter this country and preying on those who don’t know how dangerous the journey can be.
Further, where an alien has unlawfully entered the country, which is a misdemeanor, that alien will now be charged with a felony if they unlawfully enter or attempt enter a second time and certain aggravating circumstances are present.
Also, aliens that illegally re-enter the country after prior removal will be referred for felony prosecution — and a priority will be given to such offenses, especially where indicators of gang affiliation, a risk to public safety or criminal history are present.
Fourth: where possible, prosecutors are directed to charge criminal aliens with document fraud and aggravated identity theft — the latter carrying a two-year mandatory minimum sentence.
Finally, and perhaps most importantly: I have directed that all 94 U.S. Attorneys Offices make the prosecution of assault on a federal law enforcement officer — that’s all of you — a top priority. If someone dares to assault one of our folks in the line of duty, they will do federal time for it.
To ensure that these priorities are implemented, starting today, each U.S. Attorney’s Office, whether on the border or interior, will designate an Assistant United States Attorney as the Border Security Coordinator for their District. It will be this experienced prosecutor’s job to coordinate the criminal immigration enforcement response for their respective offices.
For those that continue to seek improper and illegal entry into this country, be forewarned: This is a new era. This is the Trump era. The lawlessness, the abdication of the duty to enforce our immigration laws and the catch and release practices of old are over.
Monday, April 10, 2017
Amnesty International releases report on global death sentences and executions in 2016
Amnesty International has released this new report on the worldwide use of the death penalty in 2016. This AI webpage provides a kind of summary of some of the full report's most salient facts and figures. Here are some of those numbers:
At least 1,032 people were executed in 23 countries in 2016. In 2015 Amnesty International recorded 1,634 executions in 25 countries worldwide — a historical spike unmatched since 1989. Most executions took place in China, Iran, Saudi Arabia, Iraq and Pakistan — in that order.
China remained the world’s top executioner — but the true extent of the use of the death penalty in China is unknown as this data is considered a state secret; the global figure of at least 1,032 excludes the thousands of executions believed to have been carried out in China. Excluding China, 87% of all executions took place in just four countries — Iran, Saudi Arabia, Iraq and Pakistan.
For the first time since 2006, the USA was not one of the five biggest executioners, falling to seventh behind Egypt. The 20 executions in the USA was the lowest in the country since 1991.
During 2016, 23 countries, about one in eight of all countries worldwide, are known to have carried out executions. This number has decreased significantly from twenty years ago (40 countries carried out executions in 1997). Belarus, Botswana, Nigeria and authorities within the State of Palestine resumed executions in 2016; Chad, India, Jordan, Oman and United Arab Emirates — all countries that executed people in 2015 — did not report any executions last year.
141 countries worldwide, more than two-thirds, are abolitionist in law or practice.
In 2016, two countries — Benin and Nauru — abolished the death penalty in law for all crimes. In total, 104 countries have done so — a majority of the world’s states. Only 64 countries were fully abolitionist in 1997.
Commutations or pardons of death sentences were recorded in 28 countries in 2016. At least 60 people who had been sentenced to death were exonerated in 9 countries in 2016: Bangladesh (4), China (5), Ghana (1), Kuwait (5), Mauritania (1), Nigeria (32), Sudan (9), Taiwan (1) and Viet Nam (2).
Amnesty International recorded 3,117 death sentences in 55 countries in 2016, a significant increase on the total for 2015 (1,998 sentences in 61 countries). Significant increases were recorded in 12 countries, but for some, such as Thailand, the increase is due to the fact that the authorities provided Amnesty International with detailed information.
At least 18,848 people were on death row at the end of 2016. The following methods of execution were used across the world: beheading, hanging, lethal injection and shooting. Public executions were carried out in Iran (at least 33) and North Korea.
"Day Fines: Reviving the Idea and Reversing the (Costly) Punitive Trend"
The title of this post is the title of this new paper authored by Elena Kantorowicz-Reznichenko now available via SSRN. Here is the abstract:
Fines have numerous advantages as a criminal sanction. They impose minor costs on the society and compliance leads to an increase of the state revenue. Furthermore, fines have no criminogenic effect as prisons do. However, the potential of this sanction is not fully exploited due to income variation among offenders. Sanctions must impose an equal burden on offenders who commit similar crimes. Yet in practice, low fines are insufficiently punitive to deter and punish wealthy offenders. And high fines are unaffordable for low-income offenders. As a result, fines are imposed only for minor offenses.
On the contrary, day-fines allow imposing an equal relative burden of punishment, while assuring the offender is capable of complying with the pecuniary sanction. This is possible due to the special structure of day-fines, which separates the decision on the severity of the crime and the financial state of the offender. Such structure enables expanding the categories of offenses that can be dealt with pecuniary sanctions. Day-fines can offer a partial solution for the American prison-overcrowding problem.
Therefore, the aim of this article is twofold. First, to provide a comparative analysis of day-fines in Europe. This analysis includes an exhaustive depiction of all the day-fine models that are currently implemented in Europe. Second, this article examines for the first time some of the challenges in transplanting day-fines into the U.S. criminal justice system, i.e. the constitutional restriction on Excessive Fines and the suitability of this model of fines to the American ‘uniformity revolution in sentencing’.
AG Sessions opting not to renew National Commission on Forensic Science
As reported in this extended Washington Post piece, headlined "Sessions orders Justice Dept. to end forensic science commission, suspend review policy," the new Attorney General is taking a new approach to old debates over forensic science. Though the decision here is not quite a sentencing story, it provides another example of how the new head of DOJ is taking a much different approach to serving justice than did his immediate predecessors. I recommend the Post piece in full for those seeking full context here, and here is how the piece starts:
Attorney General Jeff Sessions will end a Justice Department partnership with independent scientists to raise forensic science standards and has suspended an expanded review of FBI testimony across several techniques that have come under question, saying a new strategy will be set by an in-house team of law enforcement advisers.
In a statement Monday, Sessions said he would not renew the National Commission on Forensic Science, a roughly 30-member advisory panel of scientists, judges, crime lab leaders, prosecutors and defense lawyers chartered by the Obama administration in 2013.
A path to meet needs of overburdened crime labs will be set by a yet-to-be named senior forensic adviser and an internal department crime task force, Sessions’s statement said.
The announcement came as the commission began its last, two-day meeting before its term ends April 23, and as some of its most far-reaching final recommendations remained hanging before the department.
Sunday, April 9, 2017
Poll suggests Arkansans generally support state plans for multiple executions in coming weeks
This new local article, headlined "Poll: Arkansans’ support for death penalty unfazed by upcoming execution schedule," reports on a new local poll showing support for the notable execution plans in the works in the Natural State. Here are excerpts from part of the poll and some analysis provided in the article:
Arkansas voters remain firmly committed to the death penalty despite an upcoming quick execution schedule, advances made in DNA testing, and a national trend towards ending the practice. A new Talk Business & Politics-Hendrix College survey suggests more than 2-to-1 support for the death penalty versus life without parole....
Arkansans are also unfazed by the upcoming rapid execution schedule which involves seven executions over an 11-day period. At the time the poll was conducted, eight inmates were scheduled for execution in the 11-day time span....
As Arkansas’s move to carry out eight (and, following a federal court ruling in recent days, seven) executions via lethal injection moves toward reality at the end of the month, Arkansas is gaining increasing national and international attention as state officials race to beat the expiration deadline for a drug used in the state’s lethal injection formula.
We asked a series of questions about Arkansans’ opinions regarding the death penalty, generally, and this historic number of executions in particular. Arkansans’ unshakeable commitment to the death penalty is shown by the survey results. Most generally, Arkansans solidly support the application of the death penalty with over six in ten respondents favoring the death penalty while fewer than three in ten support life without parole for those convicted of capital offenses....
Finally, we focused on the extraordinary number of executions planned by the state of Arkansas at the end of the April. At the time of our survey, eight executions were planned. At the time of this writing, seven of those executions remain on track (the eighth has been delayed by federal District Judge Price Marshall because of a favorable clemency recommendation by the State Parole Board).
Just at one in four Arkansans are troubled by this aggressive stance while a strong majority of Arkansans either favor this move by the state to ensure the executions are carried out before the drug expiration (51%) or say it makes no difference (17%). While slight majorities of African-Americans and Democrats oppose the mass executions, the most noticeable variance across social groups is shown between men and women. A nearly 20 point gender gap (61% for men versus 42% for women) is shown on support for the late-April series of executions.
All told, this pattern of survey responses on the death penalty shows the breadth and depth of Arkansans support for death as an appropriate punishment in capital cases. While national survey research shows some erosion of support for the death penalty, all signs are that the death penalty will remain in favor in Arkansas for the foreseeable future.
Some prior related posts:
- Arkansas Gov signs proclamations that could lead to eight executions in less than two weeks in next month
- Arkansas trial judge finds it "more than shameful" that state Supreme Court ruling required dismissal of condemned inmates suit over lethal injection
- New report spotlights concerns with disabilities and bad lawyering for eight Arkansas condemned scheduled for execution next month
- Arkansas Parole Board recommends clemency for one of eight condemned scheduled for execution later this month
"Mass incarceration, public health, and widening inequality in the USA"
The title of this post is the title of this new Lancet article authored by Christopher Wildeman and Emily Wang. Here is the summary:
In this Series paper, we examine how mass incarceration shapes inequality in health. The USA is the world leader in incarceration, which disproportionately affects black populations. Nearly one in three black men will ever be imprisoned, and nearly half of black women currently have a family member or extended family member who is in prison. However, until recently the public health implications of mass incarceration were unclear. Most research in this area has focused on the health of current and former inmates, with findings suggesting that incarceration could produce some short-term improvements in physical health during imprisonment but has profoundly harmful effects on physical and mental health after release. The emerging literature on the family and community effects of mass incarceration points to negative health impacts on the female partners and children of incarcerated men, and raises concerns that excessive incarceration could harm entire communities and thus might partly underlie health disparities both in the USA and between the USA and other developed countries. Research into interventions, policies, and practices that could mitigate the harms of incarceration and the post-incarceration period is urgently needed, particularly studies using rigorous experimental or quasi-experimental designs.
The Lancet piece is behind a pay-wall; this Atlantic article provides a helpful account of its themes. Here is an excerpt from the Atlantic coverage:
For children and communities, the impacts of a parent’s incarceration are unequivocally bad, write study authors Christopher Wildeman of Cornell University and Emily Wang of Yale. Kids whose fathers go to jail are at increased risk of depression, anxiety, learning disabilities, and obesity, and they are more likely to do drugs later in life. Because criminal records dampen job opportunities, according to some studies people who live in neighborhoods with high levels of incarceration are more likely to experience asthma from dilapidated housing. These consequences are especially severe for children of color: Because black men are jailed disproportionately, a black child born in 1990 had a one-in-four chance of having their father imprisoned, Wildeman and Wong write.
When imprisoned fathers return home, “they have trouble finding employment,” says Kristin Turney, a sociologist at the University of California, Irvine, who has studied the health of inmates’ children but was not involved with the study. Part of the explanation is reduced income, she said, and “part of it is the relationship between the parents. Maintaining romantic partnerships while incarcerated is tricky, so it can lead to more [familial] conflict.”
But, paradoxically, going to prison can actually improve health — at least temporarily — for some inmates. Black male inmates, the authors write, have a lower mortality rate than similarly aged black men who aren’t in jail. The reason? The risk of death from violent accidents, overdoses on drugs or alcohol, and homicides is much lower in prison than it is in the neighborhoods where these men would be living otherwise. What’s more, before the Affordable Care Act was passed, many states made it all but impossible for low-income, childless men to obtain health care. Under the ACA, 32 states expanded Medicaid to cover all poor adults, but 19 have not. Because of that, Wildeman and Wang write, prison is the first time many incarcerated young men receive regular health care.
The drop in mortality “is just an indicator of how dangerous the environment for African-Americans is on the outside, rather than being a function of how good the medical care is that they’re receiving” in prison, Wildeman told me. (This health boost excludes the effect of solitary confinement, which has well-known, horrific consequences for mental health.)
Reviewing the "tough-and-tougher" sentencing perspectives of those now leading the Justice Department
The Washington Post has this extended new article reviewing a lot of the old tough-on-crime comments by AG Jeff Sessions and his new right-hand man, Steve Cook. The article is headlined "How Jeff Sessions wants to bring back the war on drugs," and here is how it gets started (with one important phrase emphasized at the end):
When the Obama administration launched a sweeping policy to reduce harsh prison sentences for nonviolent drug offenders, rave reviews came from across the political spectrum. Civil rights groups and the Koch brothers praised Obama for his efforts, saying he was making the criminal justice system more humane.
But there was one person who watched these developments with some horror. Steven H. Cook, a former street cop who became a federal prosecutor based in Knoxville, Tenn., saw nothing wrong with how the system worked — not the life sentences for drug charges, not the huge growth of the prison population. And he went everywhere — Bill O’Reilly’s show on Fox News, congressional hearings, public panels — to spread a different gospel. “The federal criminal justice system simply is not broken. In fact, it’s working exactly as designed,” Cook said at a criminal justice panel at The Washington Post last year.
The Obama administration largely ignored Cook, who was then president of the National Association of Assistant U.S. Attorneys. But he won’t be overlooked anymore. Attorney General Jeff Sessions has brought Cook into his inner circle at the Justice Department, appointing him to be one of his top lieutenants to help undo the criminal justice policies of Obama and former attorney general Eric H. Holder Jr. As Sessions has traveled to different cities to preach his tough-on-crime philosophy, Cook has been at his side.
Sessions has yet to announce specific policy changes, but Cook’s new perch speaks volumes about where the Justice Department is headed. Law enforcement officials say that Sessions and Cook are preparing a plan to prosecute more drug and gun cases and pursue mandatory minimum sentences. The two men are eager to bring back the national crime strategy of the 1980s and ’90s from the peak of the drug war, an approach that had fallen out of favor in recent years as minority communities grappled with the effects of mass incarceration.
Crime is near historic lows in the United States, but Sessions says that the spike in homicides in several cities, including Chicago, is a harbinger of a “dangerous new trend” in America that requires a tough response. “Our nation needs to say clearly once again that using drugs is bad,” Sessions said to law enforcement officials in a speech in Richmond last month. “It will destroy your life.”
Advocates of criminal justice reform argue that Sessions and Cook are going in the wrong direction — back to a strategy that tore apart families and sent low-level drug offenders, disproportionately minority citizens, to prison for long sentences. “They are throwing decades of improved techniques and technologies out the window in favor of a failed approach,” said Kevin Ring, president of Families Against Mandatory Minimums (FAMM).
But Cook, whose views are supported by other federal prosecutors, sees himself as a dedicated assistant U.S. attorney who for years has tried to protect neighborhoods ravaged by crime. He has called FAMM and organizations like it “anti-law enforcement groups.”
The records of Cook and Sessions show that while others have grown eager in recent years to rework the criminal justice system, they have repeatedly fought to keep its toughest edges, including winning a battle in Congress last year to defeat a reform bill. “If hard-line means that my focus is on protecting communities from violent felons and drug traffickers, then I’m guilty,” Cook said in a recent interview with The Post. “I don’t think that’s hard-line. I think that’s exactly what the American people expect of their Department of Justice.”
The phrase I have stressed above is the phrase that ultimately matters most for the foreseeable future of the federal criminal justice system. Though the Attorney General and others senior DOJ officials can and will define and shape the basic policies for federal charging and sentencing, it is local federal prosecutors around the nation who really determine how these policies get implemented and who, collectively, have the greatest impact on prosecutorial and punishment practices. And I surmise that a whole lot of federal prosecutors — not all, but many and perhaps most — embrace the "tough-on-crime" philosophy that AG Sessions espouses more than the "smart-on-crime" mantra that former AG Holder eventually espoused.
Saturday, April 8, 2017
"Cruel Techniques, Unusual Secrets"
The title of this post is the title of this new paper authored by William Berry and Meghan Ryan now available via SSRN. Here is the abstract:
In the recent case of Glossip v. Gross, the Supreme Court denied a death row petitioner’s challenge to Oklahoma’s lethal injection protocol. An important part of Justice Alito’s majority opinion highlighted the existence of a relationship between the constitutionality of a punishment and the requirement of a constitutional technique available to administer the punishment.
Far from foreclosing future challenges, this principle ironically highlights the failure of the Court to describe the relationship under the Eighth Amendment between three distinct categories of punishment: (1) the type of punishment imposed by the court — i.e., death penalty, life without parole, life with parole, (2) the method of punishment — the tool by which the state administers the punishment, and (3) the technique of punishment — the manner in which the state administers the punishment. Because, as Justice Alito insists, a constitutional method and technique must exist for a constitutionally approved punishment, there is a constitutional relationship between these categories.
As such, this Article articulates a holistic model for applying the Eighth Amendment on three levels — the punishment type, method, and technique. This Article develops this taxonomy, making explicit the concepts implicit in a number of Eighth Amendment cases. To be sure, the Court has assessed types of punishments, punishment methods, and punishment techniques individually, but it has never offered a holistic framework by which to understand these related constitutional inquiries. This Article develops such an approach.
In light of the applicable framework, the Article then explores the Court’s application of the Eighth Amendment with respect to the three categories, demonstrating how the Court deviates from its doctrine when considering punishment techniques. It next describes use of secrecy in the context of lethal injection, uncovering the manner in which this secrecy frustrates the application of the Eighth Amendment framework. Further, the Article argues that the state-instigated secrecy does more than create a doctrinal smokescreen — it raises serious constitutional and legitimacy questions concerning lethal injection protocols. Finally, the Article concludes by exploring what transparency in execution methods might mean both in terms of restoring dignity to death row prisoners and for the future of capital punishment in America.
Friday, April 7, 2017
Now that we have Justice Neil Gorsuch, what will be his first notable sentencing vote or opinion?
As reported here by the Washington Post, this morning, the "U.S. Senate confirmed Neil M. Gorsuch to serve on the U.S. Supreme Court, capping more than a year of bitter partisan bickering over the ideological balance of the nation’s highest court." Here is more about what comes next:
Gorsuch is expected to be sworn-in in the coming days, allowing him to join the high court for the final weeks of its term, which ends in June. It’s likely he will want to be sworn-in quickly — even if a ceremonial event is held later — so that he can get to work. The court is scheduled to meet Thursday for a private session to decide whether to accept or reject a long list of cases that would be heard next term. And the last round of oral arguments for this term is scheduled to begin in just 10 days, on April 17.
Justice Samuel A. Alito Jr. is the most recent justice to have been confirmed during a Supreme Court term. He was sworn-in the same day as his confirmation, and a ceremonial event with President George W. Bush was held the next day.
I do not believe there are any sentencing cases on the SCOTUS docket for its last round of arguments later this month, but there are a few notable criminal procedures case including a couple involving ineffective assistance of counsel issues. It will be interesting to see how Justice Gorsuch approaches oral argument and decision-making in these early cases.
"Who are the Punishers?"
The title of this post is the title of this intriguing new paper authored by Raff Donelson now available via SSRN. Here is the abstract:
The Eighth Amendment is a list of deeds not to be done, but it does not say who is not to do them. This Article specifically examines whom the Eighth Amendment bars from inflicting cruel and unusual punishments. The Supreme Court has thus far applied the Eighth Amendment to a narrow class of parties, consisting of just legislatures, criminal courts, and those who execute punishment such as prison officials. Under the framework presented in this Article, the class of potential punishers should be much wider. Those who work in jails and other detention centers, public and private school officials, and even parents of juveniles should be considered potential punishers for Eighth Amendment purposes.
Thursday, April 6, 2017
Federal district judge declares unconstitutional Arizona law requiring defendant to prove lack of sexual intent for contact with child
A helpful reader alerted me to this new Slate article, headlined "Federal Judge Rules Arizona’s Diaper Changing Child Molestation Law Is Unconstitutional," reporting on a notable new federal district court ruling concerning a remarkable Arizona criminal law. The start of the Slate article provides the background and links to relevant rulings:
Last September, the Arizona Supreme Court issued a stunning decision interpreting the state’s child molestation law to criminalize any contact between an adult and a child’s genitals. In a 3–2 decision, the court found that the law encompassed entirely innocent conduct, such as changing or bathing a baby. Arizona, the court held, could convict an adult for touching an infant’s genitals — which carries a prison sentence of five years — without proving sexual intent. Instead, under the law, the accused had the burden of proving that he had no sexual intent to a jury and by a preponderance of the evidence. As the dissenters noted, the ruling turned “parents and other caregivers” in the state into “child molesters or sex abusers under Arizona law.”
Reason, however, has now prevailed. Last week, a federal judge ruled that the Arizona statute, as interpreted by the state Supreme Court, is unconstitutional. In a lengthy decision, U.S. District Judge Neil V. Wake cogently explained why the law violates the Due Process Clause of the 14th Amendment, vindicating the two justices who dissented on those grounds in September. He also reminded Arizona that parents have a constitutional right to care for their children — a right the state may not interfere with by criminalizing hygienic care.The basic flaw in the Arizona law is pretty conspicuous. According to the statute, an individual is guilty of child molestation if he “intentionally or knowingly … touch[es] … any part of the genitals, anus or female breast” of a child “under fifteen years of age.” Notice something strange there? Despite calling itself a child molestation statute, the law does not require the “touching” to be sexual. Thus, a caregiver who “intentionally or knowingly” touches an infant’s genitals while changing his diaper is clearly guilty of violating the law. No other state save Hawaii does not require sexual intent for a child molestation offense.
Arizona defended its statute by noting that the defendant could still assert “lack of sexual motivation” as an “affirmative defense” at trial — requiring him to prove his benign intent “by a preponderance of the evidence.” The Arizona Supreme Court was satisfied with this loophole, holding that it rendered the law constitutional. Wake was not so easily fooled. Under the Due Process Clause, Wake noted, the government carries the burden of proving each element of a crime beyond a reasonable doubt. Yet the Arizona law shifts the burden onto the defendant, forcing him to disprove “the very thing that makes child molestation child molestation.”
That requirement, Wake explained, “violates the Fourteenth Amendment’s guarantees of due process and of proof of guilt beyond a reasonable doubt.” Due process does not permit Arizona “to remove the essential wrongfulness in child molestation and place the burden of disproving it upon people engaged in a wide range of acts, the vast majority of which no one could believe the state meant to punish.” Indeed, Arizona cannot lawfully punish “the vast majority” of conduct swept up by the statute. The U.S. Supreme Court has found that the Due Process Clause “protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” Therefore, Wake concluded, Arizona may not criminalize “constitutionally protected … innocent conduct” such as “diapering and bathing infants.”
Split Sixth Circuit panel uphold injunction blocking Ohio lethal injection protocol
A split Sixth Circuit panel today In re: Ohio Execution Protocol, No. 17-3076 (6th Cir. April 6, 2017) (available here), upheld a preliminary injunction blocking Ohio from moving forward with a number of scheduled executions. Here is how the majority opinion authored by Judge Moore gets started:
Ohio’s current execution protocol allows for execution by lethal injection using a three-drug combination of (1) midazolam; (2) either vecuronium bromide, pancuronium bromide, or rocuronium bromide, which are paralytics; and (3) potassium chloride, which stops the heart. R. 667-1 (Ohio DRC Execution Protocol, 01- COM-11 at 2) (Page ID #19813). The purpose of the first drug is to ensure that the person being executed is insensate to the pain that the second two drugs cause. It is undisputed that if the first drug does not “render the prisoner unconscious,” then “there is a substantial, constitutionally unacceptable risk of suffocation . . . and pain” from the second two drugs. Baze v. Rees, 553 U.S. 35, 53 (2008) (plurality op.). The ultimate question in this case is whether use of midazolam as the first drug in this three-drug protocol “entails a substantial risk of severe pain” as compared to “a known and available alternative.” Glossip v. Gross, 135 S. Ct. 2726, 2731 (2015). The question before us at this preliminary stage, however, is much narrower. We ask only whether the district court abused its discretion by granting a preliminary injunction to allow for further litigation regarding midazolam’s efficacy before Ohio executes Ronald Phillips, Raymond Tibbetts, and Gary Otte. For the reasons discussed below, we AFFIRM the judgment of the district court granting the preliminary injunction.
Here is how the dissenting opinion by Judge Kethledge gets started:
Roughly two decades have passed since the plaintiffs in this case murdered their victims. Ronald Phillips raped a three-year-old girl and beat her so badly that her internal organs ruptured. For two days she suffered intense abdominal pain and vomiting, until her heart collapsed. See State v. Phillips, 656 N.E.2d 643, 650-52 (Ohio 1995). Gary Otte entered the home of an Ohio man, robbed him, and then shot him in the head. Two nights later, Otte pushed his way into a woman’s home and did the same things to her. After each murder Otte went out partying. See State v. Otte, 660 N.E.2d 711, 715-16 (Ohio 1996). Raymond Tibbetts killed an elderly man and his caretaker. Police found the man slumped in his chair with butcher knives protruding from his chest and back. His caretaker lay on the floor in a pool of blood with her skull cracked open and its contents scattered nearby. See State v. Tibbetts, 749 N.E.2d 226, 237–39 (Ohio 2001).
Phillips, Tibbetts, and Otte now claim that Ohio’s Execution Protocol would cause them to suffer severe pain in violation of the Eighth Amendment. In a sense the claim is unprecedented: the Supreme Court “has never invalidated a State’s chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment.” Glossip v. Gross, 135 S. Ct. 2726, 2732 (2015) (internal quotation marks omitted). The State’s chosen procedure here is the same procedure (so far as the combination of drugs is concerned) that the Supreme Court refused to invalidate in Glossip. Yet the district court thought we should likely invalidate that procedure, and today the majority agrees. I respectfully disagree and would reverse the district court’s grant of a preliminary injunction.
A lengthy faculty meeting and a coming class mean I will not have a chance to read this extended opinion until late tonight, but I can already confidently predict that the State of Ohio will seek en banc review of this ruling and perhaps even Supreme Court review, if necessary.
Arkansas Parole Board recommends clemency for one of eight condemned scheduled for execution later this month
As reported in this AP piece, the "Arkansas Parole Board on Wednesday recommended that Gov. Asa Hutchinson alter the state's unprecedented execution schedule and grant mercy to a death row inmate who directed the torture and murder of a teenager more than two decades ago." Here is more:
Jason McGehee, 40, is one of eight inmates scheduled to die in four double executions this month. Hutchinson, who is not bound by the board's finding that McGehee should have his sentence cut to life without parole, can intervene at any time before the execution begins on April 27. The Republican governor not said when he will make a decision.
Until Wednesday, the state Parole Board had rejected every death row clemency request presented to it since 1990.
With a key lethal injection drug expiring at the end of the month, the Arkansas Department of Correction hopes to execute eight men in a 10-day period beginning April 17. Only Texas has executed that many inmates in a month, doing it twice in 1997. Seven executions in a month would still be a record for Arkansas.
Prosecutors say McGehee, who had just turned 20, directed the fatal assault of Johnny Melbourne Jr., a 15-year-old who had told police about a northern Arkansas theft ring. In voting 6-1 in favor of McGehee's clemency request, the Parole Board considered letters and testimony from the judge from McGehee's trial, a former Correction Department chief, members of McGehee's family and the victim's father.
"The death of John Melbourne, Jr. was the tragic result of a group-dynamic gone wrong," retired Circuit Judge Robert McCorkindale wrote, according to documents released by the state Parole Board. McGehee was one of several people who participated in the attack, but was the only defendant sentenced to death, and the retired judge called it "an excessive punishment."
Former Department of Correction Director Ray Hobbs told the panel at a 40-minute hearing Friday that McGehee had become a model prisoner. "He still has value that can be given to others if his life is spared," Hobbs said.
Linda Christensen, the inmate's aunt, said in an affidavit filed with the board that McGehee suffered psychological abuse as a teenager, such as when his stepfather killed the boy's dog after the dog fought with another dog for food. The stepfather "got up and kicked Dusty in the side with his cowboy boots as hard as he could," Christensen wrote. "He lay and suffered and the kids had to watch him die slowly. ... Jason was never the same after that."
Melbourne's father had asked the board to reject McGehee's clemency request. "John didn't have this. Even though he was begging for his life and was hurting. He didn't have this and he begged for his life too. He didn't have y'all," the elder Melbourne said.
Board Chairman John Felts voted against clemency. He said McGehee's death sentence wasn't excessive considering the inmate had orchestrated the Aug. 19, 1996, attack. The boy was beaten and tortured at a house in Harrison, then bound and driven to an abandoned farmhouse outside Omaha, a town in northern Arkansas. He was later strangled while his hands were tied with an electrical cord.
Wednesday, April 5, 2017
En banc Ninth Circuit concludes application of guidelines should generally be reviewed for abuse of discretion
The Ninth Circuit today issues a relatively short en banc ruling that should be of particular interest to hard-core appellate review sentencing aficionados. The start of the opinion in US v. Gasca-Ruiz, No. 14-50342 (9th Cir. April 5, 2017) (available here), covers the basics:
We took this case en banc to resolve an intra-circuit conflict over the standard of review that applies when we review a district court’s application of the United States Sentencing Guidelines to the facts of a given case. We conclude that as a general rule such decisions should be reviewed for abuse of discretion.
If you still hanker for more, here is a paragraph from the heart of the court's analysis:
District courts make far more guideline-application decisions of all sorts, see Koon v. United States, 518 U.S. 81, 98 (1996), and thus are likely to be more familiar with the nuances that go into applying Guidelines provisions across the board. Guideline-application decisions, as we have defined them, almost always “depen[d] heavily upon an understanding of the significance of case-specific details,” Buford, 532 U.S. at 65, because once the district court has identified the correct legal standard and properly found the relevant historical facts, all that remains is the fact-bound judgment as to whether a specific set of facts satisfies the governing legal standard. In the Sentencing Guidelines context in particular, that is a judgment district courts are uniquely qualified to make. Each guideline-application decision is ultimately geared toward assessing whether the defendant before the court should be viewed as more or less culpable than other offenders in a given class. In light of their experience sentencing defendants on a day-in-and-day-out basis, district courts possess an institutional advantage over appellate courts in making such culpability assessments. See Koon, 518 U.S. at 98.
AG Sessions provides update (with timelines) about the work of DOJ's Task Force on Crime Reduction and Public Safety
As reported in this short press release, "Attorney General Jeff Sessions today issued [a] memo to 94 U.S. Attorney’s Offices and Department of Justice component heads providing an update on the Department’s Task Force on Crime Reduction and Public Safety." As the press release further explains, in this update, "the Attorney General announced the creation of Task Force subcommittees that will focus on a variety of issues including developing violent crime reduction strategies, supporting prevention and re-entry efforts, updating charging and sentencing policies, reviewing asset forfeiture guidance, reducing illegal immigration and human trafficking, combatting hate crimes, and evaluating marijuana enforcement policy."
The full three-page AG memo is available at this link, and it does not cover much of significant substance. But the memo does state that the AG "directed the Task Force to hold a National Summit on Crime Reduction and Public Safety within 120 days," and it also states that the AG has asked for Task Force subcommittees to provide initial recommendations no later than July 27th. Thus I expect we will see some hot talk about changes to DOJ charging and sentencing policies (and perhaps also marijuana policies) as the weather heats up in the coming months.
"Criminological Perspective on Juvenile Sex Offender Policy"
The title of this post is the title of this short new article authored by Franklin Zimring available via SSRN. Here is the abstract:
Persons under 18 are in the very early years of sexual maturity and lack both experience and perspective. When juveniles commit sexual offenses, the behavior is typically not violent and most often involves conduct only referred to authorities because of an age difference between the offender and the victim. Rates of future sexual offending in later years are quite low for most juvenile sex offenders and on current data the presence or absence of a juvenile sex offense is not a significant predictor of sexual offending in young adulthood. Under these circumstances, requiring registration and public notification of juvenile sex offenders is very poor crime control policy as well as gross injustice to the juvenile offender.
Alabama poised to ban judicial override of jury life recommendations in capital cases
As reported in this local article, the "law in Alabama is about to change so that juries will have the final say on whether to impose the death penalty or life in prison in capital murder cases." Here is more on this notable capital development:
The House of Representatives this afternoon passed a bill that would end the authority of judges to override jury recommendations in capital cases. Alabama is the only state that allows a judge to override a jury's recommendation when sentencing capital murder cases.
The bill, by Sen. Dick Brewbaker, R-Montgomery, passed the House on a vote of 78-19 and is now headed to Gov. Robert Bentley, who said he plans to sign it into law after it undergoes a standard legal review.
Rep. Chris England, who had a similar bill in the House, substituted Brewbaker's bill for his on the House floor today, allowing it to get final passage....
According to the Equal Justice Initiative. Alabama judges have overridden jury recommendations 112 times. In 101 of those cases, the judges gave a death sentence. "Having judicial override almost undermines the constitutional right to trial by a jury of your peers," England said.
England's bill, as introduced, would also have required the consent of all 12 jurors to give a death sentence. Current law requires at least 10 jurors. Brewbaker's bill leaves the threshold to impose the death penalty at 10 jurors.
England said there was not enough support to pass the bill with the requirement for a unanimous jury to impose the death penalty. He said ending judicial override was the main objective this year but he might propose the unanimous jury requirement again in the future. He said he still thinks the change is needed. "Why would it take a unanimous jury to convict but less than a unanimous jury to send someone to death?" England said....
England said the fact that Alabama had become the last state to allow judicial override helped build support for the bill this year. England also said there was some question about whether Alabama's death penalty law could be found unconstitutional in the future.
Ebony Howard, associate legal director for the Southern Poverty Law Center, issued a statement applauding the bill's passage. "Alabama should do everything it can to ensure that an innocent person is never executed," Howard said. "The bipartisan effort to pass a bill that would keep a judge from overriding a jury's vote in capital cases is a step in the right direction. As of today, Alabama is one step closer to joining every other state in our nation in prohibiting judicial override in the sentencing phase of death penalty cases."
The Supreme Court's decision in Hurst last year striking down, as violative of the Sixth Amendment, Florida's quirky approach to jury involvement in death sentencing surely paved the way for this notable change in Alabama procedure. Notably, in Florida, Hurst was ultimately interpreted to also preclude death sentencing based on only a 10-juror recommendation. Apparently legislators in Alabama feel more confident that capital cases can roll that way in the Yellowhammer State.
Tuesday, April 4, 2017
How many prior sentenced federal prisoners might now have "Dean claims" (assuming Dean is retroactive)?
As reported in this post from yesterday, and as explained a bit more via this write-up I provided to the fine folks at SCOTUSblog, the Supreme Court yesterday in Dean v. United States, No. 15-9260 (April 3, 2017) (available here) ruled that the Eighth Circuit had been wrong to hold that, "in calculating the sentence for [a] predicate offense, a judge must ignore the fact that the defendant will serve the mandatory minimums imposed under §924(c)." According to the government's briefing in Dean, most of the circuits had also ruled like the Eighth Circuit (incorrectly) on this statutory sentencing issue — though I suspect that, in practice, a number of district courts did not consistently ignore 924(c) mandates when sentencing predicate offenses.
Given this background, I was surprised I did not think of the question in the title of this post until former AUSA Steven Sanders sent me an email with this query: "Any thoughts on whether Dean applies retroactively on 2255, on the (Montgomery) theory that the decision opens up the range of punishment and thus is substantive for Teague purposes?" Regular readers familiar with my views about finality rules and sentencing errors (basics here, law review article here) should expect me to have plenty of thoughts about Dean retroactivity, most of which center around the view that Dean qualifies as retroactive. Put simply, Dean seems to me to be a substantive ruling that applies retroactively.
Assuming Dean is retroactive, this recent "Quick Facts" publication from the US Sentencing Commission suggests there could be thousands (perhaps even tens of thousands) of federal prisoners with plausible Dean claims. Specifically, that publication indicates that, in Fiscal Year 2015, over 1100 federal defendants were convicted under both section 924(c) and another predicate offense not carrying a mandatory minimum, and that the average sentence for this group was over 11 years in prison. Assuming 2015 was a fairly representative year — and the USSC publication actually suggests a larger number of defendants getting longer sentences in prior years — it is possible that well over 10,000 defendants (and maybe many more) could be in federal prison serving sentences that were imposed based on an understanding of applicable sentencing principles that Dean has now disrupted.
For various procedural and practical reasons, I doubt we will see thousands of "Dean resentencings" in the federal courts in the coming months even if thousands of prisoners got sentenced based on the wrong understanding of the applicable laws here. But I do expect that there will be many more than just a handful or "Dean resentencing" efforts.
"Criminal Employment Law"
The title of this post is the title of this new article authored by Benjamin Levin available via SSRN. Here is the abstract:
This Article diagnoses a phenomenon, “criminal employment law,” which exists at the nexus of employment law and the criminal justice system. Courts and legislatures discourage employers from hiring workers with criminal records and encourage employers to discipline workers for non-work-related criminal misconduct. In analyzing this phenomenon, my goals are threefold: (1) to examine how criminal employment law works; (2) to hypothesize why criminal employment law has proliferated; and (3) to assess what is wrong with criminal employment law.
This Article examines the ways in which the laws that govern the workplace create incentives for employers not to hire individuals with criminal records and to discharge employees based on non-workplace criminal misconduct. In this way, private employers effectively operate as a branch of the criminal justice system. But private employers act without constitutional or significant structural checks. Therefore, I argue that the criminal justice system has altered the nature of employment, while employment law doctrines have altered the nature of criminal punishment. Employment law scholars should be concerned about the role of criminal records in restricting entry into the formal labor market. And criminal law scholars should be concerned about how employment restrictions extend criminal punishment, shifting punitive authority and decision-making power to unaccountable private employers.
April 4, 2017 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (5)
Could Proposition 66 turn the California Supreme Court into a specialty death penalty appeals court?
The question in the title of this post is prompted by this recent lengthy Los Angeles Times article headlined "Trying to speed up executions could deal 'mortal blow' to California Supreme Court." Here are excerpts:
If a November ballot measure to speed up executions goes into effect, the California Supreme Court will have to decide hundreds of death penalty appeals in rapid succession. That mandate would turn the state’s highest court into what analysts say would be “a death penalty court,” forced for years to devote about 90% of its time to capital appeals.
Proposition 66, sponsored by prosecutors and passed by 51% of voters, gave judicial leaders 1½ years to make new legal rules and then five years to decide a crushing backlog of appeals. “Prop. 66 would require the California Supreme Court to decide virtually nothing but death penalty appeals for at least the next five years — almost no civil cases at all and no criminal cases other than capital murder,” said Jon Eisenberg, president of the California Academy of Appellate Lawyers.
Legal analysts and four bar associations say the measure would inundate all the courts with extra work but hit the top court’s seven justices hardest. In a friend-of-the-court brief, 11 law professors and a nonprofit legal center contended Proposition 66 would “grind the wheels of justice to a halt” in California.
Death penalty advocates acknowledge the measure would mean extra work for the courts, but say that it is necessary to fix a system that has produced the largest death row in the country and no executions in more than a decade. They contend the workload will be tolerable, and that the courts will have some flexibility in meeting the deadlines.
The California Supreme Court is considering whether the measure can go into effect. Two opponents of the measure sued in November, contending it illegally usurped the powers of the judicial branch and violated a constitutional rule that says ballot measures must deal with one subject only. The California Supreme Court put the measure on hold until the justices resolve the case, probably within the next few months.
The appellate lawyers’ academy takes no position on the death penalty but opposed the initiative on the grounds that it would disrupt the courts and prevent litigants in civil matters from having their cases decided in a timely manner. It joined the bar associations of Los Angeles, Beverly Hills and San Francisco in a January letter written to the state Supreme Court saying that Proposition 66 “threatens to deal a mortal blow” to California’s courts....
Given a backlog of more than 300 death penalty appeals already at the court, the justices would have to decide at least 66 of them each year for the next several years just to catch up, Eisenberg said. Calculations based on the court’s typical annual production indicate the justices would be spending 90% of their time on capital cases, Eisenberg said. Civil case rulings would decline from about 50 a year to just a handful, he said. “That leaves virtually no time for anything other than death penalty cases,” Eisenberg said....
UC Berkeley's David A. Carrillo, director of a center that studies the California Constitution, described the initiative as a new unfunded mandate. "There is no way the courts can get through the existing backlog in five years with their current resources," Carrillo said.
Law enforcement groups have filed several friend-of-the-court briefs in favor of the initiative, arguing that voters have made their will clear. “California voters have elected to retain the death penalty every time the issue has been placed before them,” the leaders of several county prosecutor groups reminded the court in one brief.... “Despite the abiding and long-standing will of the voters, death penalty opponents have used the legal process as a mechanism to frustrate imposition of the death penalty,” the prosecutors argued in their brief.
Kent Scheidegger, who helped write Proposition 66, said the portrait of court chaos predicted by the bar associations and some analysts was overblown. Although the measure would require the California Supreme Court to move quickly to dispatch the backlog of capital appeals, the initiative would also shift initial responsibility for habeas challenges from the high court to trial judges, he noted. That provision, Scheidegger argued, would save the court time.
Rulings by Superior Court judges on those cases would likely be appealed to intermediate appellate courts and up to the state Supreme Court, but Scheidegger said the trial judges would do the heavy lifting. “I know that all judges hate time limits, but I do think that moving the habeas cases is a reform that most of the justices probably would agree with,” said Scheidegger, legal director of the Criminal Justice Legal Foundation, which advocates for the death penalty.
Even if the Supreme Court were to strike down the measure’s deadlines, other requirements of the initiative would still speed up executions, he said. He cited a provision that would limit public review of the state’s lethal injection method. Legal challenges involving the method have kept the execution chamber empty since 2006. Eighteen inmates who have exhausted their appeals could be executed immediately once that part of the initiative took effect, he said.
Former El Dorado County Supervisor Ron Briggs and the late former Atty. Gen. John Van de Kamp, who filed the lawsuit, argued that the entire measure should be tossed because it violated the rule limiting initiatives to a single subject. In addition to setting new deadlines and easing approval of an execution protocol, Proposition 66 would require death-row inmates to work to pay compensation to victims’ families and bar medical associations from disciplining doctors who participate in executions. It also would place a state agency assigned to represent death row inmates under California Supreme Court control and permit the corrections department to distribute condemned inmates among the general prison population.
I find so many interesting elements to this story, ranging from the telling reality that it has already taken five months to move along litigation about the status of an initiative designed to move along litigation to the interesting conflict created by state Supreme Court judges having to decide a case that will determine whether and how they have to decide a lot more cases a lot more quickly. In the end, though, this story confirms my long-standing belief that unless and until a lot of elected officials in California start having a very strong interest in moving forward with a large number of executions, the death penalty will exist in the state more as a sentence on paper than as a sentence that actually gets carried out for any significant number of condemned murderers.
Spotlighting new research and realities at the Collateral Consequences Resource Center
As regular readers know, I have made a habit of noting here some posts from the Collateral Consequences Resource Center because the topics covered there are so interesting and get so little attention in the mainstream media (or many other places in the blogosphere). In addition, I have noted lately an uptick of important empirical research and scholarly analysis of issues related to collateral consequences, and CCRC is effectively covering this important and encouraging new trend. Against that backdrop, here is a sampling of some recent posts of note from CCRC:
Monday, April 3, 2017
"Race, Plea, and Charge Reduction: An Assessment of Racial Disparities in the Plea Process"
With the growing recognition of the salience of prosecutorial discretion, attention to biases in the earlier phases of case processing is increasing. Still, few studies have considered the influence of defendant race and race/sex within the plea process. The present study uses a sample of felony cases to assess the influence of race and race/sex on the mode of disposition, similarities and differences in the factors that predict the likelihood of a plea across race, and potential racial disparities in the plea value received pertaining to a charge reduction.
The findings suggest that blacks, and black males in particular, are less likely to plea, and are expected to receive a lower value for their plea. Also, the factors that predict the likelihood of a plea are substantively different across race. Conditioning effects of race and sex are found in the likelihood of a plea and probabilities of a charge reduction.
Supreme Court unanimously rules for defendant and district court sentencing discretion in Dean
I am intrigued and surprised and ultimately pleased that a unanimous Supreme Court this morning emphasized the significance of federal district court sentencing discretion through its ruling in Dean v. United States, No. 15-9260 (April 3, 2017) (available here). The Chief Justice authored a relatively brief opinion for the Court in Dean that was obviously convincing enough to get even the most pro-prosecution Justices comfortable with ruling against the prosecution. Here are some key parts of the opinion, starting with the first paragraph that signals where the rest is headed:
Congress has made it a separate offense to use or possess a firearm in connection with a violent or drug trafficking crime. 18 U. S. C. §924(c). That separate firearm offense carries a mandatory minimum sentence of five years for the first conviction and 25 years for a second. Those sentences must be in addition to and consecutive to the sentence for the underlying predicate offense. The question presented is whether, in calculating the sentence for the predicate offense, a judge must ignore the fact that the defendant will serve the mandatory minimums imposed under §924(c)....
The §3553(a) factors are used to set both the length of separate prison terms and an aggregate prison term comprising separate sentences for multiple counts of conviction. Under §3582 a court, “in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, shall consider the factors set forth in section 3553(a).”...
As a general matter, the foregoing provisions permit a court imposing a sentence on one count of conviction to consider sentences imposed on other counts....
The Government speaks of Congress’s intent to prevent district courts from bottoming out sentences for predicate §924(c) offenses whenever they think a mandatory minimum under §924(c) is already punishment enough. But no such intent finds expression in the language of §924(c). That language simply requires any mandatory minimum under §924(c) to be imposed “in addition to” the sentence for the predicate offense, and to run consecutively to that sentence. Nothing in those requirements prevents a sentencing court from considering a mandatory minimum under §924(c) when calculating an appropriate sentence for the predicate offense.
Latest SCOTUS order list includes one complicated capital case grant
The Supreme Court via this order list granted cert in two cases, including a capital case out of Texas, Ayestas v. Davis. SCOTUSblog has this case page for Ayestas, where one can find this cert petition, where one can find the complicated question on which cert was granted:
2. Whether the Fifth Circuit erred in holding that 18 U.S.C. § 3599(f) withholds “reasonably necessary” resources to investigate and develop an IAC claim that state habeas counsel forfeited, where the claimant’s existing evidence does not meet the ultimate burden of proof at the time the § 3599(f) motion is made.
Charleston Church shooter Dylann Roof slated to plead guilty to state charges to avoid second capital trial
As reported in this local article, "mass killer Dylann Roof will plead guilty to state murder charges on April 10, sparing his nine victims' loved ones a second grueling death penalty trial and ensuring he spends the rest of his life in prison." Here is more:
Roof, 22, was convicted in January of 33 federal charges, including hate crimes, and sentenced to death for killing nine black worshippers at Emanuel AME Church. However, 9th Circuit Solicitor Scarlett Wilson also was pursuing the death penalty for nine state murder charges, proceedings that had been on hold since the end of Roof's federal trial.
She let families of Roof's victims know early Friday she is accepting a guilty plea instead. "I write with great news that the state’s case is ready to wrap up. As I told you towards the end of trial and in other updates, at this point our goal is to provide an insurance policy to the federal conviction and sentence. The most effective way to do that is to secure a guilty plea for a life sentence and get the defendant into federal custody," Wilson wrote in a letter obtained by The Post and Courier.
Reached Friday, Wilson said the move will take the death penalty off the table in the state case and assist with moving the white supremacist along to federal prison. "The goal is to get him into federal custody so their sentence can be imposed," she said. She had no further comment on the decision, saying her letter speaks for itself.
After his April 10 plea, Roof likely will be moved from the Charleston County detention center to a federal Bureau of Prisons facility. Male prisoners sentenced to death usually are housed at a prison in Terre Haute, Ind., site of the federal execution chamber.
Loved ones of those killed have waited since the gut-wrenching federal trial's close to find out Wilson's plans. Many don't support the death penalty on religious grounds and several said they didn't want to go through a second trial.
The Rev. Sharon Risher, whose mother died in the shooting, was among them. Wilson called to tell her the news. "I totally appreciated that," Risher said. "I'm feeling glad we don't have to endure another trial. I believe in my heart that this is the right thing to do. He won't ever be able to step outside again. He won't ever feel the sun on his skin again."
Sunday, April 2, 2017
"Briefing the Supreme Court: Promoting Science or Myth?"
The title of this post is the title of this new timely essay authored by Melissa Hamilton now available via SSRN. Here is the abstract:
The United States Supreme Court is considering Packingham v. North Carolina, a case testing the constitutionality of a ban on the use of social networking sites by registered sex offenders. An issue that has arisen in the case is the state’s justification for the ban. North Carolina and thirteen other states represented in a friend of the court brief make three claims concerning the risk of registered sex offenders: (1) sex offenders have a notoriously high rate of sexual recidivism; (2) sex offenders are typically crossover offenders in having both adult and child victims; and (3) sexual predators commonly use social networking sites to lure children for sexual exploitation purposes. The collective states contend that these three claims are supported by scientific evidence and common sense. This Essay explores the reliability of the scientific studies cited in the briefings considering the heteregenous group of registered sex offenders to whom the social networking ban is targeted.
April 2, 2017 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Science, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2)
Encouraging new crime data from two big US cities
As the first quarter of 2017 comes to a close, it is encouraging to see reports from two major cities about declines in violent crimes. Here are links and the basics of the stories:
With the first quarter of 2017 about to end, New York City is seeing a significant decrease in homicides and is on track to record around 300 by the end of the year, a level not seen in the modern era of police record keeping, according to NYPD officials and the latest department crime data. Through March 29, the city had recorded 60 homicides, compared with 68 in 2016, a drop of almost 12 percent, according to the data. As of late Thursday, the city hadn’t recorded any additional killings.
The drop in homicides comes at a time when the city is experiencing an overall 5-percent drop in all serious crimes, which include rape, robbery, and felony assault among others. It has also led to surprise among Police Commissioner James O’Neill’s staff even as they have become used to Compstat data showing a consistent downward trend in serious crime.
As the first quarter of 2017 draws to a close, Chicago police are encouraged by a slight drop in violence, particularly in recent weeks in the city's traditionally most violent pockets of the South and West sides long plagued by poverty, gang activity and drug-dealing. While the numbers are down from a disastrous 2016 when in excess of 4,300 people were shot, more than 760 of them fatally, the first three months of 2017 still rank as one of the deadliest starts to a year in nearly two decades.
Through Wednesday, with two days still left in the first quarter, 124 people were slain in Chicago, 9.5 percent down from 137 a year earlier, according to the Police Department's official statistics. Over the same period, 685 people were shot, almost 13 percent down from 786 a year earlier, the department said. A spate of shootings Thursday emphasized, however, just how volatile those numbers can be. Within four hours, five people were found fatally shot in the South Shore neighborhood, and four others were injured in shootings across the city by early evening.
Needless to say, the data story out of New York is far more encouraging that the data story in Chicago. But any and every crime decline is one to be celebrated, especially by those advocating for an array of modern criminal justice reforms. As I noted in this post yesterday, Attorney General Jeff Sessions and others are often inclined to point to any uptick in crime to resist any calls for reform of what I call "tough and tougher" sentencing policies, and both Prez Trump and AG Sessions have been eager to stress recent increases in homicides in Chicago and elsewhere. Having crime levels stabilize or decline can further fuel the momentum of criminal justice reform advocates.
Saturday, April 1, 2017
"Civilizing Criminal Settlements"
The title of this post is the title of this interesting new article authored by Russell Gold, Carissa Byrne Hessick and F. Andrew Hessick now available via SSRN. Here is the abstract:
Most cases in the American legal system — civil and criminal — are resolved by settlement. Although settlements are the norm in both systems, the two systems facilitate settlements in very different ways. The criminal system promotes settlements by empowering prosecutors to make the price of going to trial and risking conviction intolerably high for defendants. This leverage enables prosecutors to force defendants to enter into plea bargains under terms largely dictated by the prosecutor. By contrast, instead of providing one party with disparate leverage, the civil system facilitates settlement through procedure. Some civil procedures directly encourage settlement, such as rules requiring alternative dispute resolution. Other procedures, such as summary judgment, promote settlement indirectly by requiring information exchanges, providing opportunities for neutral arbiters to express their views of the case, and focusing the parties’ attention on the material issues simultaneously. Consequently, the civil system seeks to push only the “right” cases to settle and produces more informed, fair settlements.
This Article argues that the criminal justice system should more closely resemble the civil system in the way that it encourages settlements. It identifies several procedures that should be imported into the criminal system to make settlements less the product of coercion and more the result of informed, voluntary bargaining between the parties. In particular, it contends that the criminal system should heighten pleading standards, take seriously motions to dismiss, adopt more liberal discovery, create motions for summary judgment, and allow judicial involvement in plea negotiation. Adopting these procedures would tend not only to produce more informed and more fair plea bargains, but also to reduce the prosecutor’s leverage in plea negotiations. The Article also suggests preventing prosecutors from exercising their remaining leverage to demand that defendants waive these procedures by adopting some form of fee-shifting, also borrowed from civil practice.
"Conservatives Are Leading the Way as States Enact Criminal Justice Reform"
The title of this post is the headline of this extended Slate commentary (which is not an April Fool's Day joke). The piece is authored by LawProf Brandon Garrett, and it carries this subheadline: "Can their enthusiasm stop Donald Trump from pushing his backward 'tough on crime' agenda?". Here are excerpts:
The United States incarcerates its citizens at a higher rate than any other country in the world, but over the past few years, there’s finally been some progress. Rates of incarceration have finally begun to decline, mostly due to sweeping changes made in progressive states like California, New Jersey, and New York. According to Pew Charitable Trusts, adult incarceration has declined 13 percent since its peak in 2007, from 1 in 100 to 1 in 115. Of course, this progress is threatened by Donald Trump and his administration: The president has not only promised to reinstate a long-outdated approach to criminal justice, he’s also made Jeff Sessions, who holds similarly antiquated views, his attorney general. The two of them are preparing a task force to study violent crime — despite the fact that it’s already at historic lows — and are aiming to focus resources on drug cartels and drug use. They seem determined to return the federal government to the tough-on-crime era of the 1980s and 1990s, the height of the war on drugs.
But criminal justice reform is still marching forward—and the momentum is largely coming from conservatives, working in their state governments. The conservative case for reform is obvious: Spending billions of dollars on prison expansion and lengthy sentences is outdated and ineffective. And the state level is where reform will be the most effective — the majority of people are incarcerated in state systems. Reducing that number helps states balance their budgets, said Lenore Anderson, president of Alliance for Safety and Justice, a criminal justice reform organization that centers on crime victims. “Continued budget problems mean that regardless of who’s in the White House, [criminal justice] is going to continue to be a ripe issue for reform.”...
Texas is one of several red states, along with Georgia, Kentucky, Mississippi, Oklahoma, and South Carolina, that has adopted a range of progressive initiatives in the past decade. Texas’ reputation as a gung-ho death penalty state may make its reform efforts a surprise, but in the past decade, fiscal conservatives joined forces with civil libertarians and reduced the state’s incarceration rate by 14 percent. Part of that was thanks to forensic science and eyewitness identifications reforms that ended up putting fewer people behind bars. And rather than spend a half-billion dollars on building three new prisons, Texas instead invested in rehabilitation and re-entry, which has allowed it to close three prisons and saved billions. Crime has fallen to the lowest levels seen in Texas since 1968.
More than 30 other states have passed justice reinvestment legislation similar to Texas’. These laws divert low-level offenders from prison, use evidence-based risk methods to determine who really needs to be behind bars, reduce penalties for crimes, and aim to make it easier to get work after leaving prison. The cost savings from these reforms is then invested in rehabilitation and mental health and drug treatment, reducing crime even further....
But even with all this progress, a 10 percent to 20 percent drop in people going in won’t change the fact that our prisons are still vastly overstuffed — incarceration has risen 500 percent since the 1970s. Currently, more than half of the state prisoners in the country are serving time for violent crimes. Reducing prison populations to a manageable size must also include a closer look at how we legally define, prosecute, and punish violent crimes....
With Trump in charge, it’s possible that [some] will feel more empowered to push back against the progress that was starting to seem inevitable. The states that go back to this approach will likely see higher incarceration rates, and the costs — both human and fiscal — will fall on the public. But most lawmakers (not to mention the public) seem to have learned that these “tough” approaches failed in every way. We wasted billions to become the world’s leading incarceration nation. Such policies are simply an expensive and self-defeating type of posturing by politicians who value their own self-image over the well-being of the constituents. We already know what type of leader Trump is — let’s hope the state resistance is enough to fight him.
Though I support the sentiments of much of this commentary, I am disappointed that it fails to directly confront the tangible increase in violent crime over the last few years and the various ways in which this increase provides critical fodder for those eager to resist a move away from past "tough and tougher" approaches to crime and punishment. I surmise that AG Sessions and many of those around him sincerely believe crime remains low today only because of the laws, policies and practices of the "tough-on-crime era of the 1980s and 1990s," and these folks can and do now readily suggest that recent reforms to these laws, policies and practices may account in large part for recent crime increases. Past crime declines and now recent crime increases will likely lead these folks to persistently resist even the suggestion that a commitment to tough-and-tougher approaches is "self-defeating" in any way. In turn, they will contend that academics and other reformers are far too eager to put the interests of criminals ahead of victims.
Friday, March 31, 2017
New report spotlights concerns with disabilities and bad lawyering for eight Arkansas condemned scheduled for execution next month
In this post last year, I noted the initiative emerging from Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP). And, as regular readers now know, FPP is now regularly producing notable reports and research on the administration of various sentencing systems in various parts of the nation. The latest timely report from FPP is titled "Prisoners on Arkansas’s Execution List Defined By Mental Illness, Intellectual Disability, and Bad Lawyering," and here is how it gets started:
Since the Supreme Court reinstituted the death penalty in 1976, Arkansas has executed just 27 people. It has not sent an inmate to the death chamber since 2005. But beginning on April 17, Arkansas intends to execute an unprecedented eight men in just ten days.
This report examines the cases of those condemned men, and what we found is devastating. At least five of the eight cases involve a person who appears to suffer from a serious mental illness or intellectual impairment. One of these men was twenty at the time of the crime, suffered a serious head injury, and has a 70 IQ score. Another man suffers from paranoid schizophrenia and believes that he is on a mission from God. He sees both his deceased father and reincarnated dogs around the prison. A sixth condemned inmate endured shocking sexual and physical abuse–he was burned, beaten, stabbed, and raped, and his mother pimped him out to various adults throughout his preteen and teen years. In the two remaining cases, there is no evidence to suggest that the attorneys ever conducted even a minimally adequate mitigation investigation to determine if their clients had any illnesses or disabilities.
Across the eight cases, the quality of lawyering that we detected falls short of any reasonable standard of effectiveness–one lawyer was drunk in court, while another struggled with mental illness. Several of the lawyers missed deadlines, failed to visit their clients, and continued on a case despite the appearance of a conflict of interest. Taken together, these cases present a foundational challenge to the legitimacy and integrity of the death penalty in Arkansas. The Governor should declare a moratorium on executions so these legal deficiencies can be given a closer look, or else the Courts must intervene to stop these executions in order to preserve public confidence in the rule of law.
Perspectives on some changing prosecutorial perspectives
This New York Times article, headlined "Lock ’Em Up? Prosecutors Who Say ‘Not So Fast’ Face a Backlash," discusses the debate over a new local Florida prosecutor's announcement that she will not pursue capital cases together with the broader dynamic that more local prosecutors are running and winning on a criminal justice reform platform. (The companion piece briefly profiles "5 Prosecutors With a Fresh Approach.") Here are excerpts:
In Tampa, the top prosecutor says too many children are charged as adults. In Houston, the district attorney will no longer press charges in low-level marijuana cases. And in Chicago, prosecutors will no longer oppose the release of many nonviolent offenders who cannot afford to post bond. Two more newly elected prosecutors, in Denver and Orlando, have vowed not to seek the death penalty, even for the most egregious killers.
They are part of a new vanguard that has jettisoned the traditional lock-’em-up approach, instead winning over voters by embracing alternatives to harsh punishment. But in their eagerness to enact changes, some are facing a backlash from law enforcement groups and more conservative politicians.
In Texas, Lt. Gov. Dan Patrick, a Republican, warned that failing to punish drug crimes would make Houston akin to a “sanctuary city” for illegal enterprise. In Chicago, a suburban police chief warned that a move to classify more shoplifting cases as misdemeanors was “a slippery slope.”
But nowhere has there been more vitriol than in Florida, where a battle over the death penalty shows just how volatile an issue capital punishment remains, especially when the death of a police officer is involved....
The new breed of prosecutors was helped into office by voters skeptical of wrongful convictions, mass incarceration and evidence of racial bias in law enforcement. As candidates, many received help from the liberal billionaire George Soros, who spent millions on campaigns in states including Arizona, Mississippi and Missouri. Of the 15 candidates supported by his political action committees (including one for sheriff), 12 were victors.
But some change-minded prosecutors won without Soros money, showing that attitudes across the country are changing regardless of outsize political contributions, said David A. Sklansky, a professor at Stanford Law School who closely follows the issue. “It’s now possible in at least some places for district attorneys to campaign successfully and win office on a platform that’s not just harsher, harsher, more, more punishment,” he said. “That was unheard-of 10 years ago.”
Bob Ferguson, the attorney general of Washington State, said, “I think our public’s view of our criminal justice system has evolved.” Speaking out against the death penalty, he added, “is not the third rail people think it is.”
Thursday, March 30, 2017
White House adviser Jared Kushner and Senate Judiciary Chair Charles Grassley meet on federal criminal justice reform
This new AP article reports that "Senate Judiciary Committee Chairman Chuck Grassley met with White House adviser Jared Kushner about criminal justice reform Thursday, giving supporters a small sign of encouragement that the issue could be revived under President Donald Trump." Here is more context (but not much of substance) about the meeting:
[A reform] bill died in the Senate last year over conservative opposition, and its future has seemed unclear under Trump. Attorney General Jeff Sessions, then a senator from Alabama, was a fierce opponent. Former President Barack Obama was an enthusiastic backer of the effort, and supporters were skeptical that Trump would be as well, since he had dubbed himself "law-and-order candidate" and talked about a country in crisis, with terrorism in big cities and attacks on police.
Grassley, R-Iowa, confirmed the meeting with Kushner, Trump's adviser and son-in-law, which was first reported by BuzzFeed News, but would not comment on its substance. The White House did not have immediate comment. On whether the bill could be revived, Grassley said, "We're trying to reach some accommodation, if there needs to be any adjustment to the bill we had last year."
An unusual coalition — including the American Civil Liberties Union and the conservative Koch Industries — says the system is broken and supports changes. Grassley and Texas Sen. John Cornyn, the No. 2 Republican in the Senate, and Illinois Sen. Dick Durbin, the No. 2 Senate Democrat, were sponsors of the bill. House Speaker Paul Ryan, R-Wis., has also been a strong supporter of the effort.
Advocates were encouraged by the meeting. Holly Harris of the Justice Action Network said she is hopeful that lawmakers in Congress are paying attention to several successful state efforts to make similar changes. And given the bipartisan support, she said, it's legislation that has a real chance of passing. "Congress needs to prove it can accomplish something, and this is the perfect issue," she said.
I am disinclined to call this one meeting a sign that federal statutory sentencing reform is in the works again, but it is an encouraging developments nonetheless for those eager to see Congress do some more reform work in this space.
Arkansas trial judge finds it "more than shameful" that state Supreme Court ruling required dismissal of condemned inmates suit over lethal injection
As reported in this local article, headlined "Suit over Arkansas execution drug gets dismissal; Griffen: Justices stole men’s rights," a trial judge in Arkansas is none-too-pleased he felt compelled to dismiss a challenge to lethal injection brought by state prisoners in the wake of a state Supreme Court ruling on the matter. Here are the basics of a notable ruling in a state seemingly poised now to conduct eight executions in the coming weeks:
The Arkansas Supreme Court's decision to lift a ban on the death penalty stole the rights of the nine convicted killers who filed suit to challenge the state's execution procedures, and it forces all state courts to continue that theft, Pulaski County Circuit Judge Wendell Griffen said in a ruling Tuesday.
"It amounts to theft of the rights guaranteed by the Constitution of this state and the Constitution of the United States to a trial," the judge wrote.
The ruling issued Tuesday by Griffen, a former Court of Appeals judge known for his outspokenness, formally ends 21 months of state-court litigation over the legality of the state's execution protocols. Griffen's dismissal of the inmates' Circuit Court lawsuit comes as eight of those inmates face lethal injection next month in four two-per-day execution sessions.
The prisoners have filed two federal lawsuits this week attempting to halt the process. On Tuesday, they sued to stop the ongoing clemency hearings, arguing that the state is moving forward with their executions so quickly that their clemency petitions are not getting the consideration required by law. A federal lawsuit that they filed Monday disputes that the anesthetic midazolam will give them the painless death they are entitled to under constitutional protections that bar the infliction of cruel and unusual punishment.
The inmates had disputed the effectiveness of midazolam at preventing suffering as part of their 2015 state-court lawsuit before Griffen. But they were not allowed to present their evidence in court because the Supreme Court ignored "decades" of case law to dismiss their entire lawsuit even before all of the issues the inmates had raised had been decided, Griffen wrote in Tuesday's order and memorandum.
"To think that the highest court in Arkansas would compel every other court in Arkansas to steal the last right condemned persons have to challenge the constitutionality of their execution illustrates the travesty of justice, and the damnable unfairness, this court is powerless to prevent," Griffen wrote.
State lawyers asked Griffen on March 16 to dismiss the killers' lawsuit based on the Supreme Court's June 2016 findings, a 4-3 decision written by Justice Courtney Goodson that reinstated the death penalty after a 10-year hiatus. Arkansas has not carried out an execution since 2005 because of litigation by inmates who have disputed the legality of changes the Legislature has made to the state's execution procedures over the past several years.
On March 17, the inmates' attorneys asked Griffen to rule in their favor on issues in the lawsuit that they stated the Supreme Court holding did not address. But the judge wrote that the Supreme Court decision required him to dismiss the lawsuit.
His 10-page ruling also states that the high court ignored decades of case law to deliberately deny the inmates their rights, and it suggests that the justices violated the oath all attorneys take to uphold the law to reach their conclusions. "It is an affront to, and dereliction of, the very oath every lawyer and judge swore before being admitted by the Supreme Court of this state. As such, it is more than troubling and more than shameful," Griffen wrote.
Wednesday, March 29, 2017
Notable review of recent ups and downs in federal prosecutions
In this new posting over at the Pew Research Center, John Gramlich has assembled interesting data on federal modern criminal justice realities under the headline "Federal criminal prosecutions fall to lowest level in nearly two decades." Here are highlights:
After peaking in 2011, the number of federal criminal prosecutions has declined for five consecutive years and is now at its lowest level in nearly two decades, according to a Pew Research Center analysis of new data from the federal court system. The decline comes as Attorney General Jeff Sessions has indicated that the Justice Department will reverse the trend and ramp up criminal prosecutions in the years ahead.
Federal prosecutors filed criminal charges against 77,152 defendants in fiscal year 2016, according to the Administrative Office of the U.S. Courts. That’s a decline of 25% since fiscal 2011, when 102,617 defendants were charged, and marks the lowest yearly total since 1997. The data count all defendants charged in U.S. district courts with felonies and serious misdemeanors, as well as some defendants charged with petty offenses. They exclude defendants whose cases were handled by magistrate judges.
Prosecutions for drug, immigration and property offenses – the three most common categories of crime charged by the federal government – all have declined over the past five years. The Justice Department filed drug charges against 24,638 defendants in 2016, down 23% from 2011. It filed immigration charges against 20,762 defendants, down 26%. And it charged 10,712 people with property offenses such as fraud and embezzlement, a 39% decline.
However, prosecutions for other, less frequently charged crime types have increased slightly. For example, prosecutors charged 8,576 defendants with gun crimes in 2016, a 3% increase over 2011 (and a 9% single-year increase over 2015). And they charged 2,897 people with violent crimes such as murder, robbery and assault, a 4% increase from five years earlier.
Several factors may play a role in the decline in federal prosecutions in recent years. One notable shift came in 2013, when then-Attorney General Eric Holder directed federal prosecutors to ensure that each case they bring “serves a substantial federal interest.” In a speech announcing the policy change, Holder said prosecutors “cannot – and should not – bring every case or charge every defendant who stands accused of violating federal law.”
Sessions, who took office as attorney general in February, has indicated that the Justice Department will take a different approach under his leadership. In particular, he has pushed to increase prosecutions for drug- and gun-related offenses as part of a broader plan to reduce violent crime, which rose nationally in 2015 and in the first half of 2016, according to the FBI. (Despite these increases, violent crime remains far below the levels recorded in the 1990s.)...
Since 2001, the Justice Department’s prosecution priorities have changed. Immigration offenses, for instance, comprised just 15% of all prosecutions in 2001; by 2016, they accounted for 27%. During the same period, drug crimes fell from 38% to 32% of all prosecutions, while property crimes declined from 20% to 14%.
Such revisions by the Justice Department are not unusual. In 2013, for example, after two states legalized the recreational use of marijuana, the department announced new charging priorities for offenses involving the drug, which remains illegal under federal law. Federal marijuana prosecutions fell to 5,158 in 2016, down 39% from five years earlier.
Tuesday, March 28, 2017
"Statistical (and Racial) Discrimination, 'Banning the Box', and Crime Rates"
The title of this post is the title of this notable new paper authored by Murat Mungan now available via SSRN. Here is the abstract:
This article presents law enforcement models where employers engage in statistical discrimination, and the visibility of criminal records can be adjusted through policies (such as ban the box campaigns). I show that statistical discrimination leads to an increase in crime rates under plausible conditions. This suggests that societies in which membership to disadvantaged groups is salient (e.g. through greater racial or religious heterogeneity) are, ceteris paribus, likely to have higher crime rates. Attempting to fix the negative impacts of statistical discrimination through policies that reduce the visibility of criminal records increases crime rates further. Moreover, such policies cause a greater negative effect for law abiding members of the disadvantaged group than members of the statistically favored group.