Friday, May 20, 2016
Does anyone think former Subway pitchman Jared Fogle has any real chance to have his long federal sentence reversed as unreasonable?
The question in the title of this post is prompted by this local story discussing the high-profile sentencing appeal being heard today by the Seventh Circuit. Here are the basic details:
Former Subway pitchman Jared Fogle is asking a federal appeals court judge to shorten his nearly 16-year prison sentence. A hearing on Fogle's appeal, which is scheduled this morning in the U.S. 7th Circuit Court of Appeals in Chicago, comes about six months after U.S. District Judge Tanya Walton Pratt sentenced Fogle to 15 years and eight months in federal prison.
Fogle argued that his sentence was unreasonable and that Pratt abused her discretion when she went beyond the sentence that federal prosecutors had recommended as part of a plea agreement.
The one-time face of Subway sandwiches pleaded guilty to possession or distribution of child pornography and traveling across state lines to have commercial sex with a minor. Prosecutors recommended a maximum sentence of 12.5 years, while Fogle's defense attorneys asked for five years....
On appeal, Fogle argued that the sentence he received is "procedurally flawed" for three reasons. First, Fogle did not plead guilty to production of child pornography, and he played no role in producing the images and videos he received from Taylor, according to court records filed by Fogle's attorney.
Second, the punishment is "erroneously grounded in acts that Fogle didn't do and in Fogle's fantasies," neither of which should have been used to justify an enhanced sentence, court records say. "Notwithstanding any fantasies Fogle may have had, or his discussions with third parties concerning possible sexual contact with children younger than the prostituted minors, these events never ultimately culminated in any chargeable criminal activity," court records say.
Third, the sentence was erroneously based on Fogle collecting and viewing pornography of children as young as 6. Fogle argued that although he viewed pornographic images of children, he neither collected them nor asked Taylor for the images.
The district court also seemed to punish Fogle for seeking treatment after his arrest, court records say, and erroneously rejected a probation officer's recommendation for a less harsh sentence based on the additional stress and collateral damage he will endure because of his notoriety.
Fogle also argued that he never had sex with the minors whom Taylor recorded, and never shared any of the pornographic images and videos with anyone other than on one occasion, when he showed them to a woman with whom Fogle was romantically involved. Although he expressed interest in having sex with minors as young as 14, court records say, he never actually did.
In response to Fogle's arguments, federal prosecutors said Pratt "thoroughly and appropriately explored the unusual nature and circumstances of Fogle's offenses and his history and characteristics." Although Fogle was not involved in the production of child pornography, "he knew where the production took place, knew that it was going to happen, and did nothing, instead waiting for his chance to receive the material," according to court records filed by the U.S. attorney's office.
While prosecutors acknowledged the differences between Fogle and Taylor, they said Fogle rationalized and encouraged Taylor's conduct — and, for several years, benefited from it. "Fogle's fantasies were grounded in reality, in that he fantasized about and sought actively to repeat what he had already done, i.e., pay minors for sex," court records say.
Prosecutors also echoed Pratt's statements during Fogle's sentencing hearing last November. Fogle, unlike many offenders, had a relatively easy childhood, free of abuse and neglect. Although he did seek medical treatment, he did so only after he was caught.
Prior related posts:
- Subway pitchman and his "Jared Foundation" subject to serious child porn investigation
- What sort of child porn federal plea deal might be in works for Subway pitchman Jared Fogle?
- Even with plea deal, Subway pitchman Jared likely facing at least a decade in federal prison for sex offenses
- Has Jared Fogle gotten a sweetheart plea deal and/or celebrity treatment for sex crimes?
- Federal child porn downloaders complaining to judges about Jared Fogle's (too sweet?) plea deal
- Federal prosecutors seeking plea-deal max sentence of 12.5 years for Jared Fogle
- Jared Fogle given (above-guideline and above-prosecutor-recommend) sentence of 188 months in federal prison for sex offenses
Fascinanting press report about fascinating prisoners and public health report suppressed in 2006
This new USA Today article, headlined "Quashed report warned of prison health crisis," reports on a significant public health report that was suppressed by the Bush Administration a decade ago. Here are the interesting details:
A government report, blocked from publication a decade ago, presciently warned of an advancing, double-barreled health crisis of mental illness and substance abuse that has currently swamped the nation’s vast prison systems.
The 2006 document, prepared by then-Surgeon General Richard Carmona, urged government and community leaders to formulate a treatment strategy for thousands of sick and addicted inmates that also would assist them after release or risk worsening public health care burdens. “This (report) has demonstrated that, far from being geographically and metaphorically separated from the community as was the case with Alcatraz Island, correctional facilities and those who pass through them are an integral part of the larger community," Carmona wrote in the document titled, “The Surgeon General’s Call to Action on Corrections and Community Health."
The 49-page report, Carmona said, was quashed at the time by George W. Bush administration officials who feared that such an acknowledgement would require a financial commitment that the administration was not willing to make.
Both Carmona and Roberto Potter, who served as an editor of the document while then-detailed to the surgeon general's staff from the Centers for Disease Control and Prevention, said the decision to quash the report was relayed to them through Department of Health and Human Services officials they did not identify. "It was what they call a top-drawer veto," said Potter, now a criminal justice professor at the University of Central Florida. "We missed one of those teaching moments. When something like this goes out under the surgeon general's seal, it really carries a lot of weight."...
More than a decade after the prison report was completed, local, state and federal officials are struggling to address the same health emergency — now in full bloom — that was outlined in the pages of the surgeon general's warning. "We deny the American public essential information that they need when this information is suppressed," Carmona said. "We missed an opportunity to take appropriate action to protect the public health."
In addition to mental illness and substance abuse, the report also highlighted concerns about the prevalence of infectious and chronic diseases, urging government officials to invest in a strategy that "could build on the positive outcomes of correctional health care in ways that would benefit the larger community" when inmates are released back into society. While substance abuse was identified as "the most prevalent ailment" among inmates, the report found that mental illness was up to three times higher within U.S. jails and prisons that in the general public. "The nation's largest mental health facilities are in large urban jails," the report stated.
Thursday, May 19, 2016
Former Chief of North Carolina Supreme Court make pitch against death penalty
The former Chief Justice of the Supreme Court of North Carolina, I. Beverly Lake, Jr., has this notable new Huffington Post capital punishment commentary under the headline "Why Protecting the Innocent From a Death Sentence Isn’t Enough." Here are excerpts:
I’ve always been known as a tough-on-crime, pro-law enforcement individual, and I still am. During my years as a North Carolina State Senator, I vigorously advocated for the death penalty. As a superior court judge, I presided over trials where the death penalty seemed like the only suitable punishment for the heinous crimes that had been committed. Finally, as a Justice, and then as Chief Justice, on the Supreme Court of North Carolina, I cast my vote at appropriate times to uphold that harsh and most final sentence.
After decades of experience with the law, I have seen too much, and what I have seen has impacted my perspective. First, my faith in the criminal justice system, which had always been so steady, was shaken by the revelation that in some cases innocent men and women were being convicted of serious crimes....
Last year in America, over half of the individuals that were executed had severe mental impairments. Too much reliance is put on jurors to identify those who are the “worst of the worst.” As Chief Justice of the Supreme Court of North Carolina, I was responsible for assessing the personal culpability of defendants in capital cases to ensure that the punishment would be applied appropriately, so I understand just how difficult this task can be.
In order for mitigation evidence to be considered it must be collected and introduced at trial. In states where indigent defense systems are woefully underfunded, as it is in North Carolina, or where standards of representation are inadequate, this evidence regularly goes undiscovered.
Additionally, a number of impairments are difficult to measure. For intellectual disability, we can use an IQ score to approximate impairment, but no similar numeric scale exists to determine just how mentally ill someone is, or how brain trauma may have impacted their culpability. Finally, even when evidence of diminished culpability exists, some jurors have trouble emotionally separating the characteristic of the offender from the details of the crime.
The categorical exclusions for juveniles under the age of 18 and those with intellectual disability are simply drawn too narrowly to encompass everyone who has diminished culpability. These categorical exclusions are particularly inadequate when multiple impairments exist....
After spending years trying to instill confidence in the criminal justice system, I’ve come to realize that there are certain adverse economic conditions that have made the system fundamentally unfair for some defendants. These systemic problems continue to lead to the conviction of the innocent, as well as those individuals for whom the death penalty would be constitutionally inappropriate, regardless of the crime. Our inability to determine who possesses sufficient culpability to warrant a death sentence draws into question whether the death penalty can ever be constitutional under the Eighth Amendment. I have come to believe that it probably cannot.
Can anyone forcefully assert that a major sentence enhancement based on acquitted conduct (or even uncharged conduct) is "fundamentally fair"?
The question in the title of this post is prompted by a few notable sentences at the very end of the (otherwise not-especially-notable) majority opinion from the Supreme Court today in Betterman v. Montana, No. 14-1457 (S. Ct. May 19, 2016) (available here). Specifically, after holding that the Sixth Amendment's Speedy Trial Clause does not apply to sentencing, the Court in Betterman has this to say about the possible role of the "more pliable standard" that relates to due process rights: "After conviction, a defendant’s due process right to liberty, while diminished, is still present. He retains an interest in a sentencing proceeding that is fundamentally fair."
As regular readers know, in the wake of Apprendi and Blakely and Booker (and even in light of the advisory Booker remedy), I believe that the Sixth Amendment's jury trial right must create a constitutional limit of some sort on judicially-imposed major sentence enhancements that are based on so-called acquitted conduct. (My views here have most recently be articulated in full via this (unsuccessful) SCOTUS amicus brief in support of cert from a few years ago). But, as Betterman helps to highlight, even if and when a defendant cannot prevail on a Sixth Amendment claim at sentencing, he can always fall back on a Fifth/Fourteenth Amendment Due Process claim. And, of particular linguistic importance, if Betterman suggests that a significant majority of current SCOTUS Justices are serious about a possible due process right (or "interest") "in a sentencing proceeding that is fundamentally fair," perhaps it will be possible to get them to take up on due process grounds a challenge to a major judge-imposed sentence enhancement based on acquitted conduct or even uncharged conduct.
I know this post may be just wishful thinking that the last phrase about due process quoted above might be given some real constitutional bite by SCOTUS or lower courts in days and months ahead. But hey, what fun is life without at least a little wishful thinking.
Notable new BJS report on "Aging of the State Prison Population, 1993–2013"
As detailed in this official press release, the Bureau of Justice Statistics has just released this interesting new report with lots of data about the sentencing and incarceration of older offenders. Here are the statistical basics from the press release:
Prisoners age 55 or older sentenced to more than one year in state prison increased from 26,300 in 1993 to 131,500 in 2013, the Bureau of Justice Statistics (BJS) announced today. This represented a growth from 3 percent to 10 percent of the total state prison population during this period. From 1993 to 2013, the median age of state prisoners increased from 30 to 36 years.
Two main factors contributed to the aging of state prisoners between 1993 and 2013: a greater proportion of older prisoners were serving longer sentences, predominantly for violent offenses, and the number of admissions of older persons increased. Both the admission rate and year-end imprisonment rate for state prisoners age 55 or older increased from 1993 to 2013, which indicates that the aging U.S. resident population was not solely responsible for the growth in older offenders in prison.
The imprisonment rate for prisoners age 55 or older sentenced to more than one year in state prison increased from 49 per 100,000 U.S. residents of the same age in 1993 to 154 per 100,000 in 2013. Forty percent of state prisoners who were age 55 or older on December 31, 2013, had been admitted to prison when they were at least age 55, and 60 percent turned age 55 while serving time in prison. Additionally, 40 percent of state prisoners age 55 or older on December 31, 2013, had been imprisoned for at least 10 years, compared to 9 percent in 1993.
Admission to prison of people age 55 or older increased 82 percent between 2003 and 2013. People age 55 or older accounted for 1 percent of state prison admissions in 1993, 2 percent in 2003 and 4 percent in 2013.
In 2013, two-thirds (66 percent) of state prisoners age 55 or older were serving time for a violent offense, compared to a maximum of 58 percent of other age groups. In 2013, nearly half (48 percent) of state prisoners age 55 or older were serving sentences for murder or non-negligent manslaughter or sexual assault, compared to nearly a third (31 percent) of prisoners ages 45 to 54 and more than a quarter (27 percent) of those ages 35 to 44. In 2013, 30 percent of state prisoners age 55 or older were imprisoned for sexual assault, which was more than double the percentage of prisoners age 44 or younger.
The mean sentence length for prisoners age 55 or older admitted on new court commitments was consistently higher than other age groups. Their mean sentence length was 82 months in 2013. In comparison, prisoners ages 18 to 39 had a mean sentence length of 69 months, and the mean sentence length for new inmates ages 40 to 54 was 71 months.
Prisoners age 55 or older convicted of new violent crimes received longer sentences and were expected to serve a higher proportion of their sentences than younger offenders. Prisoners admitted in 2013 when they were age 55 or older could expect to serve an average of 182 months (15 years) for new violent offenses, compared to 116 months (10 years) for those admitted at ages 40 to 54 and 55 months (almost 5 years) for those ages 18 to 39.
"Criminal Justice: The Real Reasons for Reform"
The title of this post is the headline of this effective new National Review commentary authored by Vikrant Reddy, a senior research fellow at the Charles Koch Institute. The piece's subheadline highlights its themes: "There’s no reason to exaggerate the need for it; the true state of affairs is bad enough." And here is how the piece starts and ends:
For all public-policy ideas, there are good arguments and there are bad arguments. The bad arguments sometimes carry flash and sizzle, but they should be resisted. Criminal-justice reform — an issue many prominent conservatives have begun to champion — is particularly rife with bad arguments, but that is no reason to ignore the good ones. In a recent piece in RealClearPolicy, the conservative writer Sean Kennedy expertly filleted some of the worst arguments made by overzealous criminal-justice reformers on both the left and the right. But his takedown was not an argument against thoughtful reform efforts that have improved public safety, saved taxpayer dollars, and advanced individual dignity....
The broadly accepted view among criminologists is that incarceration does bring down crime rates, but it is a tool with diminishing marginal returns. At a certain point, if the goal is to decrease crime, each additional tax dollar is better spent on law enforcement and prevention. Indeed, there is even a point at which incarceration becomes criminogenic, causing more crime than it stops. This happens because, as noted above, some petty criminals spend lengthy stints in prison and emerge with limited reentry options and having learned more bad habits.
The upshot of all of this is simple. First, whether or not America has the world’s highest incarceration rate, it certainly has a rate vastly higher than that of any comparable Western democracy. Second, a slight majority of the prison population consists of violent offenders, but this is hardly an argument for ignoring criminal-justice reforms that would (1) reduce the number of non-violent offenders behind bars and (2) better direct resources at preventing violent crime. Finally, reformers should not forget that our high rates of incarceration, in certain ways, make society less safe, and public-safety considerations must be central to any discussion of criminal-justice reform.
Those are the good arguments in support of criminal-justice reform — and they remain good arguments even when some are making weak arguments.
Of course, not everyone who gets published in the National Review is advocating for sentencing reforms, as evidence by these other two notable recent pieces to be found there:
"Why Trump Should Oppose ‘Criminal-Justice Reform’" by Jeffrey Anderson
"Criminals are unicorns: And that’s why it is so difficult to stop them" by Kevin Williamson
Notable sentencing elements in Oklahoma bill making any and all abortions a felony subject to mandatory imprisonment of at least one year
As reported in this new Washington Post piece, headlined "Oklahoma legislature passes bill making it a felony to perform abortions," legislators in the Sooner State have now sent to the Governor a piece of legislation designed to test the enduring constitutional viability of Roe v. Wade sooner rather than later. Here are the basics (with the sentencing portion that caught my eye highlighted):
Lawmakers in Oklahoma approved a bill Thursday that would make it a felony for anyone to perform an abortion and revoke the medical licenses of any physician who assists in such a procedure. This sweeping measure, which opponents have described as unconstitutional and unprecedented, was sent to Gov. Mary Fallin (R) for her signature.
Fallin has five days to decide whether to sign the bill, and her office did not immediately respond to a request Thursday about her plans. The Oklahoma bill is the first such measure of its kind, according to the Center for Reproductive Rights, which says that other states seeking to ban abortion have simply banned the procedure rather than attaching penalties like this.
According to the bill, anyone who performs or induces an abortion will be guilty of a felony and punished with between one and three years in the state penitentiary. The bill also says that any physician who participates in an abortion will be “prohibited from obtaining or renewing a license to practice medicine in this state.”
The bill passed the Oklahoma House of Representatives with a vote of 59-to-9 last month. On Thursday, the state’s senate passed it with a vote of 33-to-12. State Sen. Nathan Dahm, a Republican who represents Tulsa County, told the Associated Press he hopes the Oklahoma measure could eventually lead to the overturning of Roe v. Wade, the landmark 1973 Supreme Court decision that recognized a woman’s right to an abortion.
The Oklahoma State Medical Association, which has called the measure “troubling,” said it would not take a position on the legality of abortion. However, the group said that it would “oppose legislation that is designed to intimidate physicians or override their medical judgment.”
Ever the sentencing nerd, I found it interesting and notable that Oklahoma would seek to outlaw abortion and make it a felony offense, but then attach to it a mandatory minimum prison sentence of only one year and a mandatory prison maximum of three years. After a little digging, I found the full text of the passed Oklahoma bill going to the Gov here, and I discovered these intriguing criminalization/sentencing terms used to apply only to a prohibition on abortions being performed by anyone other than a licensed physician. But the new bill, as shown below, deletes the language that allows licensed physicians to be excluded from this criminal prohibition:
SECTION 3. AMENDATORY 63 O.S. 2011, Section 1-731, is amended to read as follows:
Section 1-731. No person shall perform or induce an abortion upon a pregnant woman unless that person is a physician licensed to practice medicine in the State of Oklahoma. Any person violating this section shall be guilty of a felony punishable by imprisonment for not less than one (1) year nor more than three (3) years in the State Penitentiary.
Prior (arguably) related post:
- GOP frontrunner Donald Trump says "some form of punishment" would be needed for women who have abortions if procedure is made illegal
Major sentencing reform becomes reality in Maryland
One of the nicknames for Maryland (which happens to be the state where I grew up) is the "Free State." And today, as reported in this new Baltimore Sun article, the state has now enacted criminal justice reforms that help justify the continued appropriateness of this nickname. Here are the details:
Maryland officials are about to take steps to reduce the state prison population by more than 1,000 inmates while plowing millions of dollars into crime prevention.
Gov. Larry Hogan on Thursday signed the state's broadest criminal justice legislation in decades — a package that will reduce sentencing guidelines for drug dealers, thieves and other offenders, while increasing the number of crimes that can be wiped from an offender's record fivefold. Users of illegal drugs will be steered toward treatment, not incarceration. And new rules will help the state go after criminal gangs.
The Justice Reinvestment Act, a document of more than 100 pages, is a seismic shift from policies adopted during the late-20th century war on drugs, which critics say led to governments wasting money on incarceration that did little to increase public safety. By reducing the Maryland prison population by about 1,100 people over the next 10 years, officials expect to save an estimated $80 million that can be redirected toward programs intended to prevent crime.
The bill was a compromise reached among Republicans and Democrats, prosecutors and defenders, civil libertarians and victims' rights advocates. Hogan said the bill "represents the largest and most comprehensive criminal justice reform to pass in Maryland in a generation."
But some officials and advocates say Hogan's approval, which came as he signed 144 bills in the final such ceremony this year, should begin an evaluation process. Some say doing away with mandatory minimum sentences was a mistake, as was reducing sentences for some drug offenses. Others bemoan the increased penalty for second-degree murder, and say not enough other penalties have been reduced. Most of the bill's provisions go into effect in October 2017. Some will become law this October....
Supporters say the legislation helps only nonviolent offenders. Del. Herb McMillan, an Anne Arundel County Republican, disagrees. "Pushing heroin and other opioids isn't nonviolent," McMillan told the House during debate last monh. "Reducing jail time for heroin pushers, during an opioid epidemic, does not send the message heroin pushers need to hear."
Maryland is the 30th state to pursue Justice Reinvestment, a concept pushed by Senate President Thomas V. Mike Miller and Del. Kathleen Dumais, both Democrats. pushed after learning about it at legislative conferences. In 2015, the two sponsored successful legislation that created a council to recommend sweeping changes to lawmakers. From those recommendations, the Senate and House of Delegates crafted significantly different bills. The Senate's version was friendlier toward prosecutors. It took a marathon negotiation session two days before the end of the session to reconcile the bills.
The House backed off some of its proposed sentence reductions. The Senate agreed, reluctantly, to the repeal of mandatory minimums.
Sen. Robert A. Zirkin, who as chairman of the Senate Judicial Proceedings Committee led that chamber's work on the legislation, called its passage one of the best moments of his 18 years in the legislature. "There's never been a bill that I can recall of that magnitude, and it was a completely bipartisan, roll-up-your-sleeves and get-to-work effort," the Baltimore County Democrat said. He pointed to his close collaboration with Sen. Michael Hough, a Frederick County Republican.
Zirkin said one of the most important provisions specifies that treatment, rather than incarceration, should be the sentence for a person convicted of possessing drugs such as heroin or cocaine. "That's a more effective way to get that individual out of the criminal realm and back to being a law-abiding, tax-paying citizen," Zirkin said.
Zirkin said the bill also includes "the single largest expansion of expungement, possibly in this state's history." He said it expands the list of offenses that may be erased from public records from nine to about 50. They include misdemeanors related to theft and drug possession. The change is intended to make it easier for ex-offenders to qualify for jobs, housing and education....
Baltimore County State's Attorney Scott Shellenberger, who represented the state's prosecutors through the process, said he had to swallow hard to accept reductions to mandatory minimum sentences. He said such minimums were an effective tool in striking plea bargains.
Still, Shellenberger said, the legislation moves in the right direction. He said prosecutors have sought the increase in the maximum sentence for second-degree murder to 40 years for years. And he's pleased that lawmakers included Hogan's proposal to adopt a state version of the federal Racketeer-Influenced and Corrupt Organizations (RICO) bill to go after criminal gangs.
Paul DeWolfe, Maryland's chief public defender, served on the council that made recommendations. He said he hopes lawmakers continue to build on the reinvestment process in the coming years. An oversight commission created by the bill will make recommendations for further reforms. "I do see this as a first step, and I hope that most members of the commission and the legislature think that way as well," he said.
Shellenberger, a Democrat known for his tough approach to crime, said he hopes the oversight panel will take it slow and let the state absorb the many changes in the bill over several years. "This is such a large change to the criminal justice system that I think we need to take a break and see what savings [result] and what happens as a result of this change," he said.
Two interesting intricate criminal justice rulings from SCOTUS (including a first-ever casebook cite in Betterman!)
The Supreme Court release three opinions this morning, two of which are criminal justice cases. Here are the most essential basics with links via How Appealing:
1. Justice Elena Kagan delivered the opinion of the Court in Luna Torres v. Lynch, No. 14-1096. Justice Sonia Sotomayor issued a dissenting opinion, in which Justices Clarence Thomas and Stephen G. Breyer joined. You can access the oral argument via this link.
2. Justice Ruth Bader Ginsburg delivered the opinion for a unanimous Court in Betterman v. Montana, No. 14-1457. Justice Thomas issued a concurring opinion, in which Justice Samuel A. Alito, Jr. joined. And Justice Sotomayor also issued a concurring opinion. You can access the oral argument via this link.
Statutory interpretation fans will be most interested in the ruling, but sentencing fans will be focused on the Betterman ruling. It gets started this way:
The Sixth Amendment to the U.S. Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . .” Does the Sixth Amendment’s speedy trial guarantee apply to the sentencing phase of a criminal prosecution? That is the sole question this case presents. We hold that the guarantee protects the accused from arrest or indictment through trial, but does not apply once a defendant has been found guilty at trial or has pleaded guilty to criminal charges. For inordinate delay in sentencing, although the Speedy Trial Clause does not govern, a defendant may have other recourse, including, in appropriate circumstances, tailored relief under the Due Process Clauses of the Fifth and Fourteenth Amendments. Petitioner Brandon Betterman, however, advanced in this Court only a Sixth Amendment speedy trial claim. He did not preserve a due process challenge. See Tr. of Oral Arg. 19. We, therefore, confine this opinion to his Sixth Amendment challenge.
Because I would like to see the Due Process Clause play bigger role in regulating sentencing matters, I am inclined to like the Betterman ruling. And, as the title of this post highlights, I definitely linked this passage from the majority opinion for an obvious personal reason:
[A] central feature of contemporary sentencing in both federal and state courts is preparation by the probation office, and review by the parties and the court, of a presentence investigation report. See 18 U. S. C. §3552; Fed. Rule Crim. Proc. 32(c)–(g); 6 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure §26.5(b), pp. 1048–1049 (4th ed. 2015) (noting reliance on presentence reports in federal and state courts). This aspect of the system requires some amount of wholly reasonable presentencing delay.8 Indeed, many — if not most— disputes are resolved, not at the hearing itself, but rather through the presentence-report process. See N. Demleitner, D. Berman, M. Miller, & R. Wright, Sentencing Law and Policy 443 (3d ed. 2013) (“Criminal justice is far more commonly negotiated than adjudicated; defendants and their attorneys often need to be more concerned about the charging and plea bargaining practices of prosecutors and the presentence investigations of probation offices than . . . about the sentencing procedures of judges or juries.”); cf. Bierschbach & Bibas, Notice-and-Comment Sentencing, 97 Minn. L. Rev. 1, 15 (2012) (“[T]oday’s sentencing hearings . . . rubber-stamp plea-bargained sentences.”).
Implementing Graham and Miller: just what qualifies as a "meaningful opportunity to obtain release"?
This new Marshall Project piece effectively details the enduring challenges that states necessarily face in honoring both the letter and spirit of the Supreme Court's modern Eighth Amendment work limiting LWOP sentences for juveniles. The piece's full headline highlights its themes: "When Parole Boards Trump the Supreme Court: The high court has said most kids shouldn't be sentenced to life without parole, but some prisoners' fate are in the hands of politics." Here is how the piece started (with links from the original):
Almost everyone serving life in prison for crimes they committed as juveniles deserves a shot at going home. That’s the thrust of a series of Supreme Court rulings, the fourth and most recent of which was decided this year. Taken together, the high court’s message in these cases is that children are different than adults when it comes to crime and punishment — less culpable for their actions and more amenable to change. As such, court rulings have determined all but the rarest of juvenile lifers are entitled to “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”
The court left it up to states how to handle this year's new ruling but suggested parole boards were a good choice. “Allowing those offenders to be considered for parole,” Justice Anthony Kennedy wrote in January, gives states a way to identify “juveniles whose crimes reflected only transient immaturity—and who have since matured.” Most states have taken this option, changing juvenile lifers’ sentences en masse from life without to lifewith the possibility of parole.
But prisoner’s rights advocates and attorneys have begun to argue whether parole boards, as they usually operate, may not be capable of providing a meaningful opportunity for release. A handful of courts have agreed.
Last month, a New York state appeals court judge ruled that the state’s parole board had not “met its constitutional obligation” when it denied parole to a man who had killed his girlfriend when he was 16. Dempsey Hawkins is now 54 and has been denied parole nine times in hearings that, the court said, did not adequately weigh what role his youth and immaturity had played in his crime.
Also last month, a group of juvenile lifers in Maryland filed suit, arguing that not a single juvenile lifer had received parole in that state in the last 20 years. “Rather than affording youth a meaningful and realistic opportunity for release…grants of release are exceptionally rare, are governed by no substantive, enforceable standards, and are masked from view by blanket assertions of executive privilege,” the lawsuit says.
“There are just two relevant kinds of sentences: those that provide a meaningful opportunity for release and those that don’t,” says Sarah French Russell, a Quinnipiac University law professor who studies juvenile justice. “Sentences that are not technically labeled life without parole can deny a meaningful opportunity for release because of the procedures or criteria used by the parole board.”
A few of many prior related posts:
- Noting that Henry Montgomery (and many other juve LWOPers) are still awaiting impact from Montgomery
- "Montgomery's Messy Trifecta"
- What should we expect after Montgomery from states that had resisted Miller retroactivity?
- Acknowledging and reflecting on the costs, both economic and emotional, that flow from proper implementation of Miller retroactively
May 19, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)
"Are Prosecutors the Key to Justice Reform?: Given their autonomy — only if they want to be."
The title of this post is the headline of this lengthy Atlantic article which effectively highlights how little we know about the work of prosecutors and how critical they are to the operation and impact of criminal justice systems. I recommend the are piece in full, and here are snippets:
A consensus is building around the need to seriously rethink the role of the prosecutor in the administration of justice. Power dynamics are unbalanced, sentencing guidelines are outdated, and old-fashioned human biases persist. And prosecutors — singularly independent agents in a justice system roiling in turmoil — have been facing growing criticism and public distrust for some time, and that disapproval is about to hit a tipping point. It’s time to curtail the power long held by these officers of the court as they promote justice, ensure fairness, and enhance public safety....
John Jay College of Criminal Justice recently announced its new Institute for Innovation in Prosecution, headed by former prosecutor Meg Reiss. A joint project from the Manhattan District Attorney’s Office and the college, the New York City-based institute will “develop programs designed to support innovation in the role of prosecutors in the American justice system.” Reiss, a jurist with two decades of experience, has great faith in what her former colleagues can accomplish. She also owns up to the negative perceptions typically tied to the role. “There’s a lot of mystery about what actually goes on in a prosecutor’s office, so people have never been able to really evaluate it and see exactly what it is they’re doing,” she said....
Reiss said part of the solution is giving prosecutors better tools with which to do their jobs — with “a lot more discretion and creativity.” She said some crimes should fall into categories like “alternatives to prosecution” and “diversion programs.” “Of course, you address violent crime appropriately, and no one’s saying that you shouldn’t,” Reiss said. “But I think everything needs to be carefully evaluated and understood. There isn’t a broad stroke that you use for every type of crime or every type of person.” She cites the intelligence-driven prosecution model out of the Manhattan district attorney’s office as a good place to start: “DA Cyrus Vance is holding a symposium, one of many they’ve done already, on a crime-strategies unit that he has set up in his office, teaching other officers around the country how to do the same.”
It might take that kind of colleague-to-colleague approach to change the prosecutorial culture in the United States. “The bottom line is people came to be prosecutors because they really wanted to ensure fairness and increase public safety,” Reiss said. “They have a real moment at this time to step up and make a big change, to really lead in this effort, to be really innovative and forthright in their intentions, to reduce mass incarceration, to address racial disparity in the system, to look for alternatives to oppressive sanctions. We missed so many things and now is the moment.”
California voters in November to have "mend it or end it" death penalty initiative options
As reported in this new AP article, headlined "Showdown Set Over Future of California's Death Penalty," two competing ballot initiative appear poised to be before voters on the Left Coast this fall. Here are the details:
Death penalty supporters are setting the stage on Thursday for a November showdown over whether to speed up executions in California or do away with them entirely. Crime victims, prosecutors and other supporters plan to submit about 585,000 signatures for a ballot measure to streamline what both sides call a broken system.
No one has been executed in California in a decade because of ongoing legal challenges. Nearly 750 convicted killers are on the nation's largest death row, but only 13 have been executed since 1978. Far more condemned inmates have died of natural causes or suicide.
Supporters plan 10 news conferences statewide to promote an initiative they say would save taxpayers millions of dollars annually, retain due process protections and bring justice to murder victims and their families. The measure would speed what is currently a lengthy appeals process by expanding the pool of appellate attorneys and appointing lawyers to the death cases at the time of sentencing.
Currently there is about a five-year wait just for condemned inmates to be assigned a lawyer. By contrast, the ballot measure would require that the entire state appeals process be completed within five years except under extraordinary circumstances. To meet that timeline, appeals would have to be filed more quickly and there would be limits on how many appeals could be filed in each case.... Additional provisions would allow condemned inmates to be housed at any prison, not just on San Quentin's death row, and they would have to work and pay victim restitution while they wait to be executed....
Opponents say their measure, too, would save money by doing away with the death penalty and keeping currently condemned inmates imprisoned for life with no chance of parole. They submitted about 601,000 signatures on April 28 with much less fanfare, said deputy campaign manager Quintin Mecke. Each side needs nearly 366,000 valid signatures to qualify for the ballot. "It's unfortunate that the DAs (district attorneys) want to double down on a fundamentally broken death penalty system that simply can't be fixed," Mecke said. "You can't streamline or reform a failed policy."
A similar attempt to abolish the death penalty failed by 4 percentage points in 2012. Besides the latest initiative put forward by opponents, that failed effort spurred this year's counter-move by law enforcement and crime victims.
Wednesday, May 18, 2016
New CBO report indicates federal statutory sentencing reform would save many, many millions
This new Reuters article, headlined "Congress forecasters see major savings from sentencing reforms," reports on this new report from the Congressional Budget Office providing a "Cost Estimate" on S. 2123, the proposed Sentencing Reform and Corrections Act. Here are the basics via the Reuters report:
A criminal justice bill awaiting a vote by the U.S. Senate would reduce federal prison costs by $722 million over the next 10 years by releasing thousands of federal prisoners early, congressional forecasters said on Wednesday.
Federal benefits received by the newly released prisoners would increase direct spending by $251 million and reduce revenues by $8 million over the same period, according to the estimate by the U.S. Congressional Budget Office.
The new savings estimate buoyed supporters of the bipartisan measure to lower mandatory minimum sentences for some non-violent federal drug offenders, which is central to President Barack Obama's efforts to overhaul the country's federal criminal justice system and reduce prison overcrowding.
"We have an obligation to change the way we think about incarceration, and today’s CBO report shows that we have a fiscal obligation as well," said the bill's co-authors, U.S. senators Charles Grassley, a Republican from Iowa, and Richard Durbin, a Democrat from Illinois, in a statement.
The bill was revised last month to exclude prisoners convicted of violent crimes in an effort to garner more support among conservatives.
SMU's new Criminal Justice Reform Center seeking applicants for Director position
In this post a few weeks ago, I noted the notable backstory behind a major donation given to the Southern Methodist University’s Dedman School of Law to create the Deason Family Criminal Justice Reform Center. I am now able to reprint part of a job posting sent my way by the folks at SMU:
The SMU Dedman School of Law is seeking a full-time Director to establish and operate its new Deason Family Criminal Justice Reform Center. This is a full-time position. The initial contract term is one year, renewable for additional one to three year terms. We are open to considering a tenure-track, tenured or lecturer position as part of this appointment.
The Center’s mission is to promote criminal justice reform and the fair, compassionate and ethical treatment of individuals at all stages of the criminal justice process.
Duties include: 1) engage in strategic planning and establish policies, protocols, and procedures to govern the operation, including the establishment of an Advisory Board, 2) direct the day to day operations, including its research and programming; 3) produce original research reports and papers for external and internal audiences; 4) administer the budget, 5) hire and supervise the staff and oversee affiliated students as operations are established and grow, 6) create opportunities for students to benefit from the work of the Center, including developing new courses and research opportunities, as appropriate, 7) work closely with faculty at the law school and across campus, to support and promote their research, and 8) ensure compliance with the requirements of any applicable endowment or grant agreements.
JD or PhD in a related field is required. Candidates must have an excellent academic and administrative record and at least ten years of experience working on issues related to criminal justice reform. Such experience may be in academia, government, public policy, or other roles. Prior teaching experience and prior experience in running a legal or policy center are also preferred.
We are seeking a visionary leader with the desire to have a national impact on the critical and urgent conversations surrounding criminal justice reform. 12-month contract with benefits. Salary commensurate with experience.
Applications should be directed to the Faculty Appointments Committee, SMU Dedman School of Law, P.O. Box 750116, Dallas, TX 75275-0116, or emailed to email@example.com. Reference Position No. 00053776. To ensure full consideration for the position, the application must be postmarked by July 1, 2016, but the committee will continue to accept applications until the position is filled.
SMU will not discriminate in any employment practice, education program, or educational activity on the basis of race, color, religion, national origin, sex, age, disability, genetic information, or veteran status. SMU's commitment to equal opportunity includes nondiscrimination on the basis of sexual orientation and gender identity and expression. The Associate Vice President, Office of Institutional Access and Equity, has been designated to handle inquiries regarding the nondiscrimination policies. Hiring is contingent upon the satisfactory completion of a background check.
Prior related post:
- Fascinating backstory behind big donation behind new "Criminal Justice Reform Center" at SMU Dedman School of Law
"Jurisdiction and Resentencing: How Prosecutorial Waiver Can Offer Remedies Congress Has Denied"
The title of this post is the title of this notable new and timely scholarship authored by Leah Litman and Luke Beasley. Here are excerpts from the start of the piece which highlights its themes and timeliness:
This Essay is about what prosecutors can do to ensure that prisoners with meritorious legal claims have a remedy. The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes draconian conditions on when prisoners may file successive petitions for post-conviction review (that is, more than one petition for post-conviction review). AEDPA’s restrictions on post-conviction review are so severe that they routinely prevent prisoners with meritorious claims from vindicating those claims.
Take, for example, the recent litigation about whether prisoners with “Johnson” claims may be resentenced. Johnson v. United States held that the “residual clause” of the Armed Career Criminal Act (ACCA) is unconstitutionally vague. ACCA imposed a mandatory fifteen-year term of imprisonment on prisoners; but without ACCA, the statutory maximum term of imprisonment for these prisoners is ten years. Johnson therefore means these prisoners could lawfully be sentenced to no more than ten years in prison. Prisoners whose ACCA sentences depended on the residual clause are now seeking to have their 15-year sentences reduced to the lawful 10 years. But three courts of appeal held that AEDPA bars prisoners with Johnson claims from obtaining relief if they have already filed one petition for post-conviction review, because the prisoners do not satisfy AEDPA’s conditions for filing a successive petition for postconviction review....
Part I describes AEDPA’s restrictions on post-conviction petitions that are preventing prisoners with meritorious claims from obtaining relief, and how the United States is attempting to bypass those restrictions by waiving the argument that AEDPA’s restrictions are not satisfied. Part II argues that AEDPA’s restrictions on filing successive petitions for post-conviction review are not jurisdictional, and that courts may therefore accept the government’s waiver and allow prisoners to obtain relief on their claims even if prisoners do not satisfy AEDPA’s preconditions for filing successive petitions for post-conviction review.
So who would you like to see on Prez candidate Donald Trump's SCOTUS shortlist?
The question in the title of this post came to mind upon seeing this new National Review commentary by Jim Geraghty headlined "Where Is Trump’s Supreme Court Shortlist?". Here are excerpts:
Back on March 21, Donald Trump, sensing there was some conservative anxiety about whom he would nominate to the Supreme Court, promise to compile and release a list of five to ten “great conservative judges” with “great intellects.”
“I will guarantee that those are going to be the first judges that I put up for nomination if I win,” Trump said. “And that should solve that problem.” It’s mid-May now, Senate Republicans are holding the line against hearings or a confirmation vote on President Obama’s nominee, Merrick Garland, and there remains no sign that a list of potential Trump nominees is forthcoming.
Trump’s handling of the Supreme Court question is worrisome on three fronts. First, there is the simple failure to deliver on a public promise....
Second, he gives little indication he’s spent more than a few minutes thinking about who would make a good pick for the Court, or about the role of the judiciary in our government....
Third, there’s little sign that Trump or anyone around him grasps how important and consequential the issue of judicial appointees is, or how much good it would do him to reassure Republicans who aren’t jumping on board the bandwagon. If there were a way to be absolutely certain that Trump would appoint two, three, or four Antonin Scalia clones during his presidency, a lot of Trump-skeptic conservatives might immediately see one giant reason to vote for him. If nothing else, they could rest easy knowing that the Second Amendment wouldn’t be effectively nullified or curtailed, that Citizens United would remain the law of the land, that voter-ID laws would be upheld, and that pro-lifers could continue to make progress in the courts....
And that’s the real tragedy of Trump’s rise: At a time when the future of the issues most vital to conservatives is more tied to the Court’s composition than ever before, the Republican party is about to nominate a man who inspires little confidence in conservatives. There are still actions he can take to help allay conservative concerns, and there’s still time for him to take them. But if he does, all evidence suggests it will be because they’re in his own best interests rather than the nation’s. Though it’s less than ideal, getting the right outcomes for the wrong reasons may be the best we can hope for now.
For a number of reasons, sentencing fans should be very interested in who will become the next Supreme Court Justice, and it is seemingly becoming more and more likely that it Justice Scalia's replacement will not be Judge Garland (at least not in 2016 before Election Day). And though I am not through this post trying to make any predictions about who is likely to be the next President, I can confidently predict that the next person nominating federal judges (both to SCOTUS and to lower courts) will have a "yuge" impact on the future of all sorts of sentencing jurisprudence.
So, dear SL&P readers, if you had The Donald's ear, what names would you whisper to him if and whenever he starts thinking seriously about judicial nominations?
UPDATE: Seemingly only a few minutes after I put up this post, Trump did release his SCOTUS shortlist. This AP article provides these details:
Donald Trump, the presumptive Republican nominee for president, released Wednesday a list of 11 potential Supreme Court justices he plans to vet to fill the seat of late Justice Antonin Scalia if he's elected to the White House.
The list of conservative federal and state judges includes Steven Colloton of Iowa, Allison Eid of Colorado and Raymond Gruender of Missouri. Also on the list are: Thomas Hardiman of Pennsylvania, Raymond Kethledge of Michigan, Joan Larsen of Michigan, Thomas Lee of Utah, William Pryor of Alabama, David Stras of Minnesota, Diane Sykes of Wisconsin and Don Willett of Texas. Trump had previously named Pryor and Sykes as examples of kind of justices he would choose....
In a statement, Trump said the list "is representative of the kind of constitutional principles I value" and said that, as president, he would use it "as a guide to nominate our next United States Supreme Court Justices." His campaign stressed the list was compiled "first and foremost, based on constitutional principles, with input from highly respected conservatives and Republican Party leadership."...
Apart from Sykes, who is 58, the others all are younger than 55 and David Stras is just 41. The eight men and three women on the list are all white.
As a commentor below has aleady suggested, I am disappointed (but not suprised) that there does not appear to be any person with a history as a criminal defense attorney on this list. But I am excited to see Judge Pryor on the list due to his thoughtful sentencing writings and his recent experiences as a member of the US Sentencing Commission (as well as my pleasant interactions with him).
"Sentencing phase: did heredity play part in serial killer’s crimes?"
It is often said that the sins of the father should not befall the son, but an on-going capital case in Ohio suggests that at least one defendant is hoping the sins of his father and grandfather and great-grandfather might help keep him off death row. The title of this post is the headline of this local story which provides these details:
Was heredity to blame for the violent crimes of convicted serial killer, Michael Madison? A Cuyahoga County jury was presented with that possibility in the courtroom of Judge Nancy McDonnell on Tuesday.
Dr. Mark Cunningham, a clinical and forensic psychologist from the state of Washington, testified heredity was an aspect of sexual offending. "There is patterning within these family systems,” he said, “They found that having a brother or father who had been convicted of a sexual offense increased the odds of being convicted of a sexual offense four to five fold.”
Cunningham prepared a diagram showing the history of Madison’s family dating back to his great-grandfather. The chart illustrated how the serial killer’s relatives preyed on each other physically and sexually, including their own children. Social Service records and interviews with Madison’s family revealed he was abused for years by his mother and her boyfriends.
"The way that he was treated is the template of how he then goes about interacting with others throughout his life,” said Cunningham, “It's a core principle that the FBI's behavioral science unit identified as they looked at the histories of sexual homicide offenders and observed that the quality of attachments to parents and other members of the family during childhood is central to how the child will relate to and value other members of society.”
The 37-year-old was convicted of raping and murdering Angela Deskins, Shetisha Sheeley and Shirellda Terry, all of East Cleveland. Their bodies were found near his East Cleveland apartment in July of 2013.
Tuesday, May 17, 2016
Noting that different prosecutors have notably different opinions on the SRCA
This lengthy new Daily Signal article, headlined "Is It Time for Criminal Justice Reform? 2 Law Enforcement Groups Are at Odds," details that the heads of the National District Attorneys Association and of the National Association of Assistant U.S. Attorneys have taken different positions on the leading statutory sentencing reform proposal in Congress. I recommend the piece in full, and here are excerpts:
While the unusual coalition of President Barack Obama and conservative groups hold out hope for the chance at what they call the most meaningful reform to criminal sentencing laws in a generation, frontline law enforcement officials are debating what the changes would mean for their communities.
Steven Cook, whose organization represents more than 5,500 assistant United States attorneys, believes Congress’ attempts to reduce prison sentences for certain low-level offenders will “substantially harm” law enforcement’s ability to “dismantle and disrupt drug trafficking organizations.”
William Fitzpatrick, the president of the official body representing state-level district attorneys across the U.S., views the issue differently, recently writing to congressional leaders that a Senate plan to reduce sentences for drug crimes allows “lower level offenders a chance for redemption.”
Cook and Fitzpatrick are two veteran law enforcement officials with vastly different jobs, but they have outsized roles in a debate over criminal justice reform with high stakes for the people they represent — not to mention the thousands of offenders who could benefit from changes to sentencing laws.
Fitzpatrick made headlines late last month when he authored a letter — on behalf of the National District Attorneys Association — to Senate leaders Mitch McConnell, R-Ky., and Harry Reid, D-Nev., expressing support for compromise legislation meant to reduce mandatory minimum sentences for low-level drug offenders. That endorsement has encouraged other law enforcement groups to get on board, with both the International Association of Chiefs of Police and Major County Sheriffs’ Association announcing their support last week....
But Cook, and his National Association of Assistant U.S. Attorneys, remain opposed to the legislation, and he and the organization have the ear of still skeptical lawmakers like Sens. Tom Cotton, R-Ark.; Jeff Sessions, R-Ala.; and David Perdue, R-Ga. “The notion we should save the American people money by releasing these repeat drug traffickers — and to take tools away from prosecutors needed to successfully prosecute them — is a breach of the fundamental responsibility that the federal government has to protect its citizens,” Cook told The Daily Signal.
Cook and Fitzpatrick know each other well, and have been in frequent communication about their positions on the Sentencing Reform and Corrections Act, as the Senate’s legislation is known (although Cook says he was “very surprised” when Fitzpatrick endorsed the new bill). Cook has served as an assistant U.S. attorney in the Eastern District of Tennessee for the last 29 years. Fitzpatrick is the district attorney for Onondaga County in New York, a position he’s held for 24 years.
McConnell is ultimately responsible for deciding whether to allow the full Senate to vote on the bill. In weighing his decision, McConnell is no doubt considering both sides of the argument communicated by Cook and Fitzpatrick.
As most compromises go, the legislation’s actual provisions are relatively modest. The bill aims to reduce certain mandatory minimum prison sentences created in the 1980s and ’90s during the war on drugs, which are laws that require binding prison terms of a particular length, and designed to promote consistency in punishment. Critics charge these laws have proven to be inflexible, and, by limiting judge’s discretion to rule on the specifics of a case, have led to unfair punishments for lesser offenders.
“The number one priority of the Sentencing Reform and Corrections Act is the promotion of public safety,” Sen. Mike Lee, R-Utah, a bill sponsor, told The Daily Signal. “Our criminal justice system is undermined when punishment delivered by the government does not fit the crime. Our bill better protects the American people by bringing balance back to federal sentencing.”
The bill, for example, would reduce the mandatory prison sentence required for drug offenders with two or more “serious violent felony” or “serious drug felony” convictions from life without parole, to 25 years. The bill’s authors adjusted this provision, and others, so that it does not allow violent offenders from being able to petition a judge for a retroactive early release. “To say a third-time drug offender gets 25 years instead of life, is that going to impact public safety?” Fitzpatrick said. “Not in my judgment. If you are lucky, you get 75 years on planet Earth. If you take a third of a person’s life away from him or her, that is not what I would call a slap on the wrist. In this society, we can survive safely in giving someone 25 to 30 years as opposed to life.”...
Still, for people who view drug trafficking as an inherently violent crime, as Cook does, the reform would reduce the punishment for offenders who have done more than possess and use drugs. “We are not prosecuting drug users in federal court,” Cook said. “This whole notion of low-level nonviolent drug offenders is wrong because that’s not who is coming into federal prison. We are dealing with dismantling large drug trafficking organizations.”...
According to Families Against Mandatory Minimums, a nonprofit advocating for sentencing reform, 92 percent of the 20,600 federal drug offenders sentenced in fiscal year 2015 did not play a leadership or management role in the offense, and nearly half had little or no prior criminal record.
Even so, Cook contends that prosecutors would lose a major leverage tool with weakened mandatory minimums, making it harder for them to get cooperation from defendants who would help them dismantle drug trafficking organizations. “It’s absolutely right that it [mandatory minimums] encourage people to cooperate with law enforcement officials and identify others involved in a conspiracy,” Cook said. “There are strong incentives for offenders to not help us identify other participants, and this is the only tool we’ve got. These are not easy people to deal with. They understand one thing, and that is how long they will be in prison.”
Fitzpatrick counters that prosecutors still could effectively do their jobs with less severe mandatory minimum sentences. “There will always be the give and take of plea bargaining and trying to get people to cooperate,” Fitzpatrick said. “I don’t think this statute undermines that, not when high-level offenders will still get significant prison time.”
"How to solve the biggest issue holding up criminal justice reform: Republicans and Democrats can't agree on 'mens rea' reform. Here's a middle ground."
The title of this post is the headline of this notable new Politico commentary authored by Professor Alex Sarch. Here are excerpts:
Despite gridlock and the distraction of a presidential election, Congress hoped to pass legislation this year that would overhaul our flawed criminal justice system. But with the election approaching, that hope is rapidly disappearing over disagreements on one controversial issue: “mens rea reform.”
“Mens rea” — Latin for “guilty mind” — refers to requirements in criminal law that concern a defendant’s mental state, like the intent to cause harm or knowledge of what one was doing. Republicans have demanded that criminal justice reform also make such requirements in federal law stricter, forcing prosecutors in many cases to prove that defendants knew they were breaking the law. Democrats have balked at the proposed reforms, arguing that they would make it much harder to prosecute corporate executives for white-collar crimes.
Both sides have a point. Mens rea reform can increase clarity in the law and make unfair prosecutions less likely. But the Republican proposals, in both the House and Senate, are so strict that they would insulate many highly culpable actors from conviction. Instead of allowing the mens rea issue to derail criminal justice reform, lawmakers should agree on a middle ground that imposes a simple default mens rea requirement — knowledge of the facts constituting the offense. Such an agreement would improve our criminal law and pave the way for comprehensive criminal justice reform....
Late last year, Republicans introduced bills in the House and Senate to reform the mens rea requirements in federal law. But both bills have significant flaws that may actually create more confusion and protect culpable actors. Since courts already presume that criminal statutes include a mens rea requirement, an ill-conceived mens rea policy would be worse than the status quo.
The Senate bill would make it too hard to convict culpable actors because it says that for crimes without an explicit mens rea requirement, prosecutors must prove willfulness — defined as “knowledge that the person’s conduct was unlawful.” This standard has scary implications.... [W]hy should we immunize the bank executive who knew full well he was issuing misleading public statements, but who just happened to be unsure whether his actions were criminal (perhaps because he didn’t make time to research it)? For this reason, Department of Justice officials and other policy groups have criticized the proposed mens rea reform bills for making it harder to prosecute corporate crime.
The Senate bill does include an important exception for statutes to which Congress affirmatively intended no mental state requirement to apply. Moreover, the bill would not change any mental state elements established by Supreme Court precedent (though notably not precedent from Federal Courts of Appeals). However, these provisions do not make up for the bill’s dangerous new willfulness standard.
The House bill has been criticized as confusing, but it is a less extreme proposal than the Senate bill. It generally requires only knowledge of the facts constituting the offense as the default mental state requirement. In addition, when it comes to crimes that a reasonable person would not know to be illegal — largely crimes in technical areas like securities, tax or environmental law — the government would also have to prove that “the defendant knew, or had reason to believe, the conduct was unlawful.” In other words, it would have to show that they 1) knew the facts constituting the offense and 2) should have known their conduct was illegal. This means that mere negligence as to illegality would suffice for these crimes.
So for a bank executive accused of accounting fraud, for example, the government would only have to show that she 1) knew what she was doing (i.e., making false statements) and 2) should have known — based on her experience and professional role — that her actions were illegal.... However, the House bill has two problems. First, unlike the Senate bill, it does not make exceptions for statutes that courts have already interpreted to include a mens rea element or for statutes that Congress clearly intended to have no mental state requirement. Second, the bill makes it easier for culpable actors to escape liability by claiming ignorance of the law. Those accused of a technical crime could avoid punishment by claiming they didn’t realize their actions were illegal and that it wasn’t their responsibility to find out.
However, these problems can easily be fixed: Congress should add exceptions to the House bill and adopt regular knowledge as the default mens rea. Effectively, this deletes the second requirement from the House bill. In other words, for technical crimes, the government would not have to prove a defendant should have known his conduct was illegal, just that it was illegal and that the defendant knew the circumstances of the action. This knowledge standard would not make ignorance of the law any kind of excuse. Such a modest proposal should be an acceptable compromise, as it is only a small departure from the House bill. Republicans are right that the lack of clear mental state requirements in federal statutes lets courts interpret the law in uneven and unpredictable ways. But their proposed reforms would make it too hard to convict culpable actors. Instead, lawmakers should agree on a simple default mens rea — like the House bill’s basic requirement of knowledge of the facts. Such changes would provide clarity for courts and break the political logjam blocking criminal justice reform.
Though I appreciate this effort to find a mens rea middle ground that might help create more consensus on criminal justice reforms in Congress, I continue to feel strongly that those who oppose the incorporation of a high mens rea requirement in federal criminal laws to be misguided. Put simply, I really do not see any "scary implications" of having a high mens rea requirement for federal criminal offenses given that our massive regulatory state already has no shortage of civil laws (with significant penalties) that do not require showing mens rea.
Two notable new Colorado Supreme Court rulings concerning sex offender treatment and Fifth Amendment protections
A helpful reader alerted me to two new ruling from the Colorado Supreme Court concerning sex offender supervision and the Fifth Amendment. Here are links to the opinions and the summary that appears at the start:
People v. Ruch, No. 13SC587, 2016 CO 35 (May 16, 2016) (available here):
This case requires the supreme court to determine whether the trial court properly revoked the defendant’s probation for, among other things, refusing to enroll or participate in sex offender treatment based on his concern that in the course of such treatment, he would have been compelled to incriminate himself in violation of the Fifth Amendment.
The supreme court perceives no Fifth Amendment violation here, where the trial court revoked the defendant’s probation based on his total refusal to attend treatment. In these circumstances, the defendant’s purported invocation of his Fifth Amendment rights was premature and amounted to a prohibited blanket assertion of the privilege. Accordingly, the court holds that the trial court properly revoked Ruch’s probation based on his refusal to attend treatment.
People v. Roberson, No. 13SA268, 2016 CO 36 (May 16, 2016) (available here):
The supreme court concludes that on the facts presented here, the defendant’s Fifth Amendment privilege against self-incrimination precluded the district court from revoking the defendant’s sex offender intensive supervision probation based on his refusal to answer a polygraph examiner’s question regarding his use or viewing of child pornography while he was on probation. On the record before the court, however, the court is unable to determine whether the defendant’s privilege against self-incrimination precluded the district court from revoking the defendant’s probation based on his refusal to answer questions concerning any post-trial sexual fantasies involving minors that he might have had within the six months immediately preceding the polygraph examination. Accordingly, the supreme court makes its rule to show cause absolute and remands this case to the district court with directions that the court conduct further proceedings as more fully set forth in this opinion.
Monday, May 16, 2016
Smart-on-crime sentencing reforms about to become law in Alaska
A number of helpful readers have made sure I did not miss news of significant criminal justice reforms making their way through the Alaska legislature, and this recent Alaska Dispatch News piece briefly summarizes what is about to become law:
A landmark criminal justice reform bill will go to Gov. Bill Walker for his signature after the Alaska Senate on Friday agreed to changes made to the legislation by the House. Senate Bill 91, sponsored by North Pole Republican Sen. John Coghill, aims to reduce Alaska’s rising prison population and save money from the state’s corrections budget — which consumed $280 million of the state’s $4.1 billion agency operating budget this year.
The bill’s comprehensive reforms to sentencing, bail, probation and parole practices are designed to keep nonviolent criminals out of jail and to generate better results from a state justice system that sees nearly two of every three inmates return to prison within three years of their release. “We've got to break that cycle, and SB 91 is a paradigm shift that will help us do it,” Coghill said in a statement Friday.
The Senate’s concurrence vote Friday was 14 to 5. It drew support from the chamber’s four Democratic minority members and from 10 members of Coghill’s Republican-led majority; all five votes against concurrence came from Republican majority members. Sen. Lyman Hoffman, D-Bethel, was absent.
The legislation was drafted with the help of a newly convened Alaska Criminal Justice Commission, which includes members with experience in the state court system, law enforcement, public defense, mental health and victims' rights. The commission’s work was supported by the Pew Charitable Trusts, which also spent $120,000 this year on a Juneau lobbyist, Kent Dawson....
In a prepared statement, Walker, who endorsed the criminal justice reform effort last year, thanked lawmakers for passing SB 91. He said his administration would review the bill’s technical elements “to make sure the policies can be applied as the Legislature has intended.”
“Alaska has some of the highest recidivism rates in the nation, so I am pleased to see our state’s elected officials taking action to address this problem while considering the balance between accountability, public safety, and achieving better outcomes from our criminal justice system,” the statement quoted Walker as saying.
"13 Important Questions About Criminal Justice We Can’t Answer. And the government can’t either."
The title of this post is the title of this notable new Marshall Project piece by Tom Meagher. Here are excerpts:
The open secret is that we know very little about much of how the criminal justice system operates in America. These aren’t things the government knows and won’t tell us (though there are plenty of those, too). It’s because state, local and federal governments, which ought to rely on data to inform the policies they enact, just don’t know.
In some cases, the federal government commissions criminal justice surveys that offer national estimates, often years after the fact. But the kind of granular, local, real-time data that powers most industries is all but absent. The number of times police use force or shoot someone in the line of duty are just the most obvious examples in our current national conversation.
Among the things we don’t know about our criminal justice system:
◾ how many people have a criminal record
◾ how many people have served time in prison or jail
◾ how many children are on some type of supervision or probation
◾ how many juvenile offenders graduate to become adult offenders
◾ how often people reoffend after being released from prison
◾ how many shootings there are in America
◾ how many police are investigated or prosecuted for misconduct
◾ how many people in America own guns
◾ how often police stop pedestrians or motorists
◾ how many incidents of domestic violence are reported to police
◾ what percentage of those eligible for parole are granted release from prison
◾ how many corrections officers are disciplined or prosecuted for abusing prisoners
◾ how many criminal cases are referred to prosecutors and how they decide which to pursue
The excuses for why we don’t have better data about our police, our courts and our prisons may sound familiar to anyone who has worked in corporate America: there isn’t enough money to hire analysts; the IT department says it can’t be done; the chief is moving on to another department.
Local autonomy has not been helpful for good criminal justice data. The fraction of the country’s 18,000 police departments that do collect figures on officers’ use of force have no consistent definition of what constitutes force. Adam Gelb, director of the Pew Charitable Trusts’ Public Safety Performance Project, cites similar issues in other parts of the system, like probation. There are thousands of probation agencies, but they are either run at the state or local level. In one place, probation is part of the executive branch; In another, it’s part of the judiciary. The lack of consistency makes contacting all the agencies a daunting prospect, much less moving them toward timely and uniform reporting of statistics....
There is one part of the Department of Justice tasked with collecting and publishing data: The Bureau of Justice Statistics. But no one argues that the bureau, which is a clearinghouse for all kinds of data on police staffing, prison rape, crime figures and more, should be doing it all by itself.... “I don’t think the BJS can do it,” said John Pfaff, a professor at Fordham Law School in New York. "Every year, Congress asks them to do more and more already. I don't think they have the capacity to do any more. They do amazing stuff, but I don't think they can."
When it comes to bad data, police aren’t even the worst offenders. While there is data on policing and corrections and some on the courts themselves, the biggest piece missing is information on how local prosecutors operate. "We have really no data whatsoever on what prosecutors do, almost none,” Pfaff said, adding, “We don't know what they're doing, why they're doing it and what drives their decision process."
And that ignorance has an impact on efforts to reduce incarceration levels and lower sentences. Because we don’t have data on how prosecutors work, we don’t focus on them when we talk about reforms, Pfaff said. Gelb called prosecutors “the biggest and most significant black box to be opened in the system.”
The problem with a lack of data on the criminal justice system is more than just budgetary. It’s a cultural issue that gets to the heart of why criminal justice reform is so very difficult. “For some [police] departments there may be cultural resistance to looking too closely,” Katz said. “Police departments can be very insular, very closed off. Within the closed system they may not even perceive that this may be a best practice.”
This aversion to transparency has rubbed off on lawmakers, who may find the numbers mildly interesting, but not really necessary to guiding policy for a system that largely runs itself, according to Gelb. “If that's the approach and the attitude, why would you need to have real time, actionable data for policy decisions? Policy makers have not seen the need for it,” he said. And what we — and policy makers — don’t know about criminal justice could fill a prison.
President-elect in Phillipines eager to bring back death penalty "especially if you use drugs"
The worldwide story of capital punishment has generally involved an ever-growing number of nations moving away from regular use of the death penalty. However, as this Time piece highlights, at least one notable nation has just elected a tough-on-crime leader eager to get his nation to execute again. The piece is headlined "Philippine President-Elect Rodrigo Duterte Plans to Bring Back the Death Penalty," and here are the basics:
The tough-on-crime presumptive winner of the Philippine presidential election, Rodrigo Duterte, has told reporters in his first postvictory comments that he intends to bring back capital punishment.
According to Philippine news outlet GMA, Duterte told reporters in Davao City on Sunday night that he would “urge Congress to restore the death penalty by hanging, especially if you use drugs.”
Other news outlets reported that he would also give police shoot-to-kill powers against mobsters and those violently resisting arrest. “If you resist, show violent resistance, my order to police [will be] to shoot to kill,” he declared, adding: “Shoot to kill for organized crime. You heard that? Shoot to kill for every organized crime.”
Duterte’s election success has been credited to his promise to eradicate crime in a country that has the world’s 11th highest homicide rate. During his campaign, he said he would “fatten the fish” of Manila Bay with the bodies of criminals.
The President-elect’s 22-year track record as the mayor of Davao City gives him enormous credibility with Philippine voters. Before he took mayoral office, Davao was known for its war-zone-like lawlessness, but last year, a crowdsourced poll declared it fourth safest city in the world....
He is due to be sworn in as President on June 30 for a six-year term.
SCOTUS back to work with no new cert grants, punting, and a per curiam AEDPA summary reversal
The Supreme Court this morning issued orders and a number of opinions after returning from a few weeks off, and the lead story seems to be primarily what the Justices did not do: the Court did not grant certiorari on any new cases, did not conclusively resolve (but essentially punted issues back to lower courts) a couple high-profile argued cases, and did not split 4-4 (or even 5-3) on any merits opinions.
The one thing the Court did do that might interest criminal justice fans involves a per curiam ruling in a federal habeas case coming from the Ninth Circuit. The ruling in Kernan v. Hinojosa, No. 15-833 (S. Ct. May 16, 2016) (available here), gets started this way:
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires a state prisoner seeking federal habeas relief first to “exhaus[t] the remedies available in the courts of the State.” 28 U. S. C. §2254(b)(1)(A). If the state courts adjudicate the prisoner’s federal claim “on the merits,” §2254(d), then AEDPA mandates deferential, rather than de novo, review, prohibiting federal courts from granting habeas relief unless the state-court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law,” §2254(d)(1), or “was based on an unreasonable determination of the facts,” §2254(d)(2). The Ninth Circuit in this case decided that the Supreme Court of California’s summary denial of a habeas petition was not “on the merits,” and therefore AEDPA’s deferential-review provisions did not apply. We summarily reverse.
Notably, Justice Sotomayor issued a dissenting opinion, which Justice Ginsburg joined, to explain why she thought the Ninth Circuit was in the right when refusing to apply AEDPA’s deferential-review provisions in this case.
Noting that Henry Montgomery (and many other juve LWOPers) are still awaiting impact from Montgomery
At Jost on Justice, Ken Jost has this notable new piece, headlined "For Juvenile Lifers, Wheels of Justice Grind Slow," about the application of the Supreme Court's ruling in Montgomery v. Louisiana in state systems. Here are excerpts:
Henry Montgomery has lived behind prison walls for 53 years now, but even so he is a “little bit antsy” according to his lawyer while waiting to learn when he will get a chance at freedom under a new Supreme Court decision.
Montgomery is one of 300 or so Louisiana inmates serving time under life-without-parole sentences imposed for murders they committed as juveniles — sentences ruled unconstitutional by the Supreme Court four years ago. The court followed with a 6-3 ruling in January that the earlier decision applies retroactively to prisoners even if their regular appeals had already ended....
The hang-up in Louisiana and in several other states stems not only from the customarily slow pace of judicial proceedings but from uncertainty about how to comply with the high court’s ruling. The 6-3 decision in Montgomery v. Louisiana appeared to prescribe parole hearings as the remedy rather than court resentencings for inmates now seeking release.
The court’s earlier decision, Miller v. Alabama (2012), prohibited states from automatically sentencing juvenile murderers to life-without-parole but left open the possibility of such sentences in some murder cases. In the new opinion, Justice Anthony M. Kennedy said that prisoners “who have shown an inability to reform will continue to serve life sentences.” Citing Montgomery’s record as a model prisoner, however, Kennedy said that inmates like him “must be given the opportunity to show their crime did not reflect irreparable corruption.”
Kennedy appeared to be letting states off easy by negating any need to resentence the juvenile lifers in court, much less to review their convictions. But leaders of a juvenile justice advocacy group working to abolish life-without-parole sentences view courts as a more receptive forum than state parole boards for inmates to gain their freedom. Heather Renwick, legal counsel for the Washington-based Campaign for the Fair Sentencing of Youth, says courts are a more favorable forum than politically appointed parole boards....
Nationwide, there are an estimated 1,300 prisoners serving life-without-parole sentences for offenses committed as juveniles. Louisiana and two other states, Michigan and Pennsylvania, account for the lion’s share. In Louisiana, Montgomery’s lawyer is impatient for the state’s high court to act. “It’s in limbo right now,” says Mark Plaisance, a private lawyer representing Montgomery on contract with the East Baton Rouge Parish public defender’s office.
Montgomery, who turns 70 in November, was sentenced for killing a school truancy officer in 1963 when he was 17. Plaisance says Montgomery shares his impatience with the delayed follow-up. “Not only him but several of the defendants are antsy about how quick can we get back into court,” Plaisance says.
For its part, the juvenile sentencing group acknowledges the slow pace but takes encouragement from recent moves by Utah and South Dakota to become the 15th and 16th states to abolish life-without-parole for juvenile offenders altogether. “There is broad bipartisan support for alternatives to death-in-prison sentences for children,” says Jody Kent Levy, the group’s director and national coordinator. “Still, there is work to be done to ensure reforms are implemented meaningfully.”
Prior related post with my scholarly take on Montgomery:
Sunday, May 15, 2016
Making the case that "criminal justice reform is a conservative effort" and a "moral imperative"
The debate over modern criminal justice reform efforts creates an interesting divide among folks on the right: some like Bill Otis make the claim that the push for reform is an "ominous ... part of our country's recent pattern of decline and retreat," while others involved with the Right on Crime movement assert conservatives should be leading the charge for robust criminal justice reform. Regular readers will not be surprised to hear I tend to be moved more by the Right on Crime voices, and the RoC website recently highlighted this notable column at Ricochet by Nathanael Ferguson making the claim that criminal justice reform is a conservative cause. Here is how this piece starts and ends (with links in the original):
My friend Sean Kennedy asserts in a column at Real Clear Policy that the “Bipartisan Push for Criminal Justice Reform Is Misguided.” I respectfully disagree. On the contrary, criminal justice reform is a conservative effort that is necessary to restrain government that has grown too large, powerful, and costly.
Criminal justice reform, or CJR for short, is a broad-based movement made up of numerous policy reforms taking place mostly at the state level. Texas has pioneered many of the reforms and has inspired a growing number of states to follow suit which has led to, among other beneficial results, reduced recidivism rates and lower prison costs.
CJR is a policy response to the problem of overcriminalization which can be defined as the criminalization of routine behavior that has no business being criminalized and the overly burdensome punishments that are handed down for minor infractions. Or to put it another way, we have too many statutory and administrative laws that are too vague and carry overly disproportionate penalties in contravention to the old saying that “the punishment must fit the crime.”...
Conservatives are generally suspicious of government that is too big, too costly, and too powerful. That is, until it comes to the justice system where we seem to think it’s okay for the government to be big and powerful and spend our tax dollars like a drunken sailor. But why should we view the justice system any differently than the rest of the government? Why should we not demand transparency and accountability? Why should we not demand that crime and punishment be proportional? Why should we not demand that justice-related spending be efficient and cost-effective?
The answer is that we should demand these things. And to a growing extent we are, which is why it is mostly conservative states with Republican governors leading the way on criminal justice reform and in so doing making the system more just and less costly to taxpayers. To be sure, some liberal lawmakers who support the movement may tend to overreach and make the leap from being right on crime to being soft on crime. But that’s no reason to condemn the entire movement.
Criminal justice reform is not some misguided liberal effort to open the prison doors and set free everyone convicted of drug-related crimes as some opponents charge; rather it is a moral imperative for a society that values limited government, individual liberty, personal responsibility, and a justice system that is fair to victims, violators, and the taxpayers who fund it.
Is it fair for me to worry that drug war distractions contribute to "a revolving door for violent offenders" in DC?
The question in the title of this post is prompted by this lengthy new Washington Post article headlined "How an accused rapist kept getting second chances from the D.C. justice system," which is the "first installment in a series that will examine issues related to repeat violent offenders in the District of Columbia." I am pleased to see the Post giving attention to how repeat violent offenders manage to avoid serious punishments, but I hope that the series will get around to exploring my enduring concern that repeat violent offenders can too often and too readily exploit cracks within any justice system overworked and overloaded from treating drug problems as primarily criminal justice concerns. These enduring concerns aside, here are excerpts from the Post's story that serve as an introduction to the troubling tale that follows:
The 40-year-old woman, described in court papers as 5 feet tall and 100 pounds, suffered fractures in her eye socket and cheekbone. The alleged perpetrator, 21-year-old Antwon Durrell Pitt, had an extensive criminal history, including eight arrests in four years and a robbery conviction. Three times, he was sentenced under laws designed to promote leniency and second chances for inexperienced adult offenders. In two of those cases, he was sentenced under the District’s Youth Rehabilitation Act, a 1980s-era law aimed at “deserving” offenders under the age of 22.
Pitt’s case shows that such laws, combined with lax enforcement by key federal agencies, can give many chances to violent offenders despite repeated criminal behavior and the failure to abide by terms of release, according to a Washington Post review of court records, transcripts and probation reports.
The D.C. criminal justice system relies on a mix of federal agencies and D.C. judges to swiftly intervene and communicate vital information to protect the public from violent offenders. In the crucial weeks before the rape, a D.C. Superior Court magistrate judge and two federal agencies — the Court Services and Offender Supervision Agency (CSOSA) and the U.S. Parole Commission — failed to work together to take Pitt off the streets.
Pitt’s behavior raised many red flags, indicating escalating risk. Just out of prison last summer after serving a robbery sentence, Pitt did not report for some of his court-ordered drug testing and anger management sessions. He did not keep in contact with his supervision officer. And in a final act of defiance, Pitt cut off the GPS monitoring bracelet affixed to his ankle and let the battery run dead. He was completely off the grid.
CSOSA, the federal agency charged with watching D.C. offenders released from prison, did not request a warrant for Pitt’s arrest for 15 days after losing contact with him. The Parole Commission waited a week after getting that request before forwarding it to law enforcement. And the magistrate judge denied a prosecutor’s request to keep Pitt behind bars, despite a troubling report from the Pretrial Services Agency. “No conditions or combination of conditions can reasonably assure the defendant’s appearance or safety to the community,” said the report that was given to magistrate William Nooter.
The District’s Youth Rehabilitation Act was passed in 1985 to give youthful adult offenders a chance to have their records wiped clean from public view if they successfully complete their sentences, even those who commit violent crimes, with the exception of murder and a second crime of violence while armed....
At a time when the Obama administration and Congress are working to ease “mandatory minimum” sentencing guidelines for non-violent offenses, in part because of concerns that such laws have unjustly imprisoned large numbers of African Americans, D.C. law enforcement officials are increasingly concerned about the number of repeat violent offenders on the streets. The District, for example, has seen a near doubling in the percentage of homicide suspects with prior gun-related arrests. “Sometimes, we just scratch our heads,” D.C. police Chief Cathy L. Lanier said. “We feel like there’s a revolving door for violent offenders. It’s very frustrating for us because we see the victim, and we see the impact on the victim.”
Saturday, May 14, 2016
"The Death Penalty & the Dignity Clauses"
The title of this post is the title of this notable new paper authored by Kevin Barry now available via SSRN. Here is the abstract:
“The question now to be faced is whether American society has reached a point where abolition is not dependent on a successful grass roots movement in particular jurisdictions, but is demanded by the Eighth Amendment.” Justice Thurgood Marshall posed this question in 1972, in his concurring opinion in the landmark case of Furman v. Georgia, which halted executions nationwide. Four years later, in Gregg v. Georgia, a majority of the Supreme Court answered this question in the negative.
Now, forty years after Gregg, the question is being asked once more. But this time seems different. That is because, for the first time in our Nation’s history, the answer is likely to be yes. The Supreme Court, with Justice Kennedy at its helm, is poised to declare the death penalty unconstitutional. No matter what the Court’s answer, one thing is certain: dignity will figure prominently in its decision.
Dignity’s doctrinal significance has been much discussed in recent years, thanks in large part to the Supreme Court’s watershed decisions in U.S. v. Windsor and Obergefell v. Hodges, which struck down laws prohibiting same-sex marriage as a deprivation of same-sex couples’ dignity under the Fourteenth Amendment. Few, however, have examined dignity as a unifying principle under the Eighth and Fourteenth Amendments, which have long shared a commitment to dignity, and under the Court’s LGBT rights and death penalty jurisprudence, in particular, which give substance to this commitment. That is the aim of this Article.
This Article suggests that dignity embodies three primary concerns — liberty, equality, and life. The triumph of LGBT rights under the Fourteenth Amendment and the persistence of the death penalty under the Eighth Amendment expose a tension in dignity doctrine: the most basic aspect of dignity (life) receives the least protection under the law. Because dignity doctrine demands liberty and equality for LGBT people, it must also demand an end to the death penalty. If dignity means anything, it must mean this.
In anticipation of the Court’s invalidation of the death penalty on dignity grounds, this Article offers a framework to guide the Court, drawn from federal and state supreme court death penalty decisions new and old, statistics detailing the death penalty’s record decline in recent years, and the Court’s recent LGBT rights jurisprudence. It also responds to several likely counterarguments and considers abolition’s important implications for dignity doctrine under the Eighth Amendment and beyond.
Ho, Ho, Ho: symbolic and sound sentence for SEPTA screw-up
A helpful reader altered me to this local sentencing story that would likely make both Socrates and Santa Claus smile. The piece is headlined "Ex-SEPTA police officer is sentenced to Christmas service," and here are the details:
For falsely arresting a nurse on Christmas 2013, former SEPTA Police Officer Douglas Ioven must spend four hours each Christmas for the next four years doing community service. That was part of a novel Noel sentence handed down Friday by a Philadelphia Common Pleas Court judge.
In March, Ioven, 44, was found guilty of false imprisonment and official oppression for arresting nurse Muibat Williamson at Suburban Station, following a contentious confrontation between the two at a Dunkin' Donuts store. On Friday, Judge Anne Marie B. Coyle sentenced Ioven to serve 30 days in prison over 15 consecutive weekends and 3-1/2 years of probation, according to court records.
Coyle also sentenced Ioven to 50 hours of anger management and 50 hours of community service each year over Ioven's four years of supervision. She noted that Ioven is to serve four hours of his annual 50 hours of service on Christmas. Coyle said his service should focus on serving low-income and homeless people....
Assistant District Attorney Andrew Wellbrock, who prosecuted the case, said he was satisfied with the sentence. "This is an individual who abused his power and abused his badge and really needed to know what it feels like to take someone's liberty," Wellbrock said.
"Inside a prison where inmates can actually vote for president"
The title of this post is the headline of this lengthy Fusion article discussing voting realities in Vermont. Here is how the interesting piece starts and ends:
On February 16, 2000, Scott Favreau, then 17, committed a crime that shattered a family and shocked the state of Vermont. In the early hours of the morning, he walked up to his foster mother, who was up grading high school English papers at the kitchen table, and shot her in the head with a .22 caliber rifle, immediately killing her. After leading police on a high-speed car chase, Favreau and his accomplice, the foster mother’s stepdaughter who was later found to be implicated in the crime, were arrested.
For the small community around West Burke, Favreau’s murder of his guardian, Victoria Campbell-Beer, represented a rare act of violence that robbed it of one of its beloved schoolteachers. For Favreau, the crime marked the deplorable end to a tumultuous childhood largely defined by neglect and abuse, both physical and sexual, allegedly at the hands of his biological father.
Upon settling into his new day-to-day life as a prisoner, he came to believe that, for all practical purposes, his life had ended. During these first years of incarceration, Favreau says, his identity became defined by his status as a non-entity in society. “It teaches you to be just an inmate,” he said of prison. “There’s not a lot of responsibility in here. You can sleep all day. You can do nothing at all. And that’s what a lot of us do.” Favreau says after his first years in prison he even began to see the guards — “the closest thing we have to society” — as strange, unrelatable visitors from the outside world.
During the first years of his term, Favreau began to mend ties to his biological mother, talking to her over the phone with some frequency. More often than not, their conversations would wind back to her financial struggles and desperate search for a well-paying job. Incarcerated with no way to help, Favreau says that these conversations often underscored his sense of powerlessness behind prison walls.
Ahead the 2006 election, partially propelled by the economic woes of his family, Favreau did something he describes as pivotal: He registered to vote, a rare privilege available to United States prison inmates in only Vermont and Maine.
Favreau says that participating in the electoral process brought a new feeling of agency in and connection to society at large. This, he said, helped to change his life. “It was one thing I could do that I can have control of, the one thing that could let me feel that I can make a difference in something.” After registering, he gradually began to follow developments in the news, informally debating other inmates about current events. He even began talking politics with prison guards, who eventually became a lot less otherworldly. “It helped me accept them because it gave me something in common with them,” Favreau said. “You can bond through a shared experience.”
Maine and Vermont — the nation’s first- and second-whitest states, respectively — provide America’s only opportunity to see what happens when prison inmates vote. In Favreau’s telling, however, the largest significance of voting as an inmate might go beyond his relationships with prison guards, his conversations with other inmates, or even any effect his vote might have on an election outcome. Favreau believes it has improved his chances of reintegrating with society upon his release, which he expects will come in roughly two years. “I grew up in prison and voting helped me learn responsibility,” Favreau said. “It taught me how to be a part of the community, and how to prepare me for it.”...
Having made an ill-fated attempt to rebuild his life in society in Vermont’s closely supervised probation program, Favreau has personal experience with the difficulties of reintegration. After his release in 2013, Favreau found a job in a warehouse in Brattleboro, and soon met and moved in with a girlfriend and her young son. Yet, Favreau was struggling with a large debt he had incurred largely during his first few months of freedom and, to ease his anxiety, he had begun to smoke pot, a fact he knew would become known by his probation officer because of required urine tests.
“One night I was at work and I felt like my life was a failure because I was thousands of dollars in debt,” Favreau said. “I figured I would be better off back in jail.” That night, Favreau violated his probation by crossing into Massachusetts, where he quickly called his girlfriend and told he what he’d done. By the end of the following day, Favreau was back in custody.
Favreau, who began making art in prison, said he has been using his failed year of freedom to work on strategies for his second try at reintegration, which he anticipates will come in approximately two years. In the meantime, he says he will continue to vote whenever an opportunity arises. “It’s my lifelong goal to make amends for what I did and to give back to community and to the people I hurt,” Favreau said. Being able to vote has “taught me about my responsibility,” he added. “I can get out and make a difference one day.”
Friday, May 13, 2016
Pfizer gives states yet another reason to seriously consider execution alternatives other than lethal injection
As long time readers know, I have been urging states to seriously explore alternatives to lethal injection for the better part of a decade: in this December 2006 post, for example, I flagged a discussion of various new and old execution procedures and suggested that "states interested in continuing to employ the death penalty should start exploring alternatives to lethal injection." Today, via this New York Times article, states have yet another reason to take this advice to heart: "The pharmaceutical giant Pfizer announced on Friday that it has imposed sweeping controls on the distribution of its products to ensure that none are used in lethal injections, a step that closes off the last remaining open-market source of drugs used in executions." Here is more:
More than 20 American and European drug companies have already adopted such restrictions, citing either moral or business reasons. Nonetheless, the decision from one of the world’s leading pharmaceutical manufacturers is seen as a milestone. “With Pfizer’s announcement, all F.D.A.-approved manufacturers of any potential execution drug have now blocked their sale for this purpose,” said Maya Foa, who tracks drug companies for Reprieve, a London-based human rights advocacy group. “Executing states must now go underground if they want to get hold of medicines for use in lethal injection.”
The obstacles to lethal injection have grown in the last five years as manufacturers, seeking to avoid association with executions, have barred the sale of their products to corrections agencies. Experiments with new drugs, a series of botched executions and covert efforts to obtain lethal chemicals have mired many states in court challenges.
The mounting difficulty in obtaining lethal drugs has already caused states to furtively scramble for supplies. Some states have used straw buyers or tried to import drugs from abroad that are not approved by the Food and Drug Administration, only to see them seized by federal agents. Some have covertly bought supplies from compounding pharmacies while others, including Arizona, Oklahoma and Ohio, have delayed executions for months or longer because of drug shortages or legal issues tied to injection procedures.
A few states have adopted the electric chair, firing squad or the gas chamber as an alternative if lethal drugs are not available. Since Utah chooses to have a death penalty, “we have to have a means of carrying it out,” said State Representative Paul Ray as he argued last year for reauthorization of the state’s death penalty.
Lawyers for condemned inmates have challenged the efforts of corrections officials to conceal how the drugs are obtained, saying this makes it impossible to know if they meet quality standards or might cause undue suffering. “States are shrouding in secrecy aspects of what should be the most transparent government activity,” said Ty Alper, associate director of the death penalty clinic at the University of California, Berkeley, School of Law.
Just a few prior related posts on firing squads and other alternatives over the last decade:
- Is it time to seriously consider alternatives to lethal injection? (from 2006)
- Could states eager to execute quickly adopt a new execution method? (from 2007)
- A bit of historical perspective on execution methods (from 2009)
- A worldly perspective on different execution methods (from 2009)
- Shouldn't we celebrate condemn's request that he "would like the firing squad, please"? (from 2010)
- "Experts argue firing squad is a humane execution" (from 2010)
- Should problems with lethal injection prompt return of other execution methods? (from 2011)
- Making a potent argument for executions by firing squad rather than lethal injection (from 2013)
- Poll after ugly execution highlights enduring death penalty support and openness to various execution methods (from 2014)
- Shouldn't Congress be holding hearings to explore federal and state execution methods? (from 2014)
- "In praise of the firing squad" (from 2015)
- Utah legislature brings back firing squad as alternative execution method (from 2015)
- "Heroin as an execution drug?" (from 2015)
Reviewing a notable week at Marijuana Law, Policy & Reform
Regular readers know they should be regularly checking out my blogging at Marijuana Law, Policy and Reform for updates on marijuana reform stories. This past week, like most these days, included a number of notable developments highlighted in these posts:
"Was 1960'S Liberalism the Cause of Today's Overincarceration Crisis?"
The title of this post is the headline of this notable book review by Lauren-Brooke Eisen of the Brennan Center for Justice of this notable new book by Elizabeth Hinton "From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America." Here is how the review starts and concludes:
The statistics are stunning. This very second, more than 2.2 million people sit behind bars in America. To put this into perspective, the United States is home to the largest prison system on the planet. But corrections today encompasses more than just metal bars. An estimated 6,851,000 people are under some sort of correctional supervision, such as probation or electronic monitoring. If you do the math, it’s about one in 36 adults. The racial disparities are striking: according to the Sentencing Project, one in every 10 African-American men in his thirties is in prison or jail on any given day.
Elizabeth Hinton, professor of history and African American studies at Harvard University, examines how mass incarceration happened in America in her new book, appropriately titled From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America. Hinton’s approach is novel. Most criminal justice experts cite President Ronald Reagan’s War on Crime as the driver for today’s current levels of incarceration. Hinton argues that President Lyndon Johnson’s Great Society policies — which aimed at improving conditions for the most impoverished Americans — laid the foundation for mass incarceration and its attendant racial injustices. Reagan’s policies, she says, were merely “the fulfillment of federal crime control priorities that stemmed initially from one of the most idealistic enterprises in American history during the era of civil rights.”
This may be a surprising claim, but it is not a unique one: there are a growing number of academics today who are blaming liberals for creating mass incarceration and for the sizable racial disparities that exist in the justice system. Naomi Murakawa, political scientist and associate professor of African American studies at Princeton, made this argument in her recent book The First Civil Right: How Liberals Built Prison America. Murakawa points to federal legislation written by liberals to reduce discretion in sentencing and parole. The liberals’ goal was to avoid racially disparate punishment — judges, they argued, generally used their discretion in ways that hurt racial minorities. Time has shown, however, that reducing judicial discretion only resulted in more racial disparities, as African-Americans ended up spending more time in prison as a result.
University of Pennsylvania professor of political science Marie Gottschalk, made a similar case in her 2015 book Caught: The Prison State and the Lockdown of American Politics. Gottshalk contends that African-American advocacy groups have not always led the way in criminal justice reform and have in fact, at various points in history, supported measures that created more punitive criminal justice policies that have harmed African-Americans. She notes that the majority of the Congressional Black Caucus supported the Anti-Drug Abuse Act of 1986, a law that notoriously, and controversially, punished crack cocaine use (a crime African-Americans are more likely to be convicted of) 100 times more harshly than powder cocaine use (which skews more white).
Building on this theme, Hinton’s well-researched book is filled with historical anecdotes painting a colorful picture of the nation’s persistent struggle with crime since President Johnson coined the phrase “War on Crime” more than fifty years ago. A year before President Johnson declared this war, Congress passed his Economic Opportunity Act of 1964, which Hinton calls “the most ambitious social welfare program in the history of the United States." The Economic Opportunity Act, which invested almost $1 billion in fighting poverty, would prove to be one of the most important parts of President Johnson’s War on Poverty, and his larger Great Society initiative, in which billions of dollars were spent on dozens of antipoverty programs. Hinton, however, criticizes President Johnson for not spending more money on job creation measures and revamping public schools in poor, urban areas. What came next, in her opinion, set the stage for decades of punitive measures that ultimately resulted in today’s phenomenon of mass incarceration....
From the War on Poverty to the War on Crime is smart, engaging, and well-argued. Its one flaw, however, is that it does not adequately recognize that many of the policies it criticizes, with 50 years of hindsight, were well-intentioned at the time – and, their implications for criminal justice aside, did a great deal of good. It is not until the very end of the book — pages 335 and 340 to be exact — that Hinton throws some morsels of recognition their way, conceding that these policies may have been “a product of their time” and that there are “questions of intent”. But the concession is a grudging one — Hinton writes that these questions of intent “are only relevant to a certain extent” as the real issue is to “uncover the series of decisions that made contemporary mass incarceration possible.”
The last 50 years have brought valuable research about crime, evidence-based programs, and how to improve the lives many Americans through education, community support, and mental health and drug treatment services. To give short shrift to the well-meaning efforts of so many of the nation’s academics, researchers, and policymakers is an unfortunate blind spot in an otherwise well-researched and provocative analysis of the causes of our mass incarceration crisis.
Assailing the former drug czars for "their demagoguery" and "fact-free fearmongering"
Earlier this week I posted this commentary arguing against federal statutory sentencing reform headlined "Drug dealing is a violent crime" and authored by William J. Bennett, the director of drug control policy for President George H. W. Bush, and John P. Walters, the director of drug control policy for President George W. Bush. Now I see that Kevin Ring, Vice President of Families Against Mandatory Minimums, has this new Daily Caller commentary in response headlined "Drugs Czars Peddle Fear." Here are excerpts:
Harry Anslinger, the first commissioner of the Federal Bureau of Narcotics, once offered his insight into America’s nascent drug problem: “There are 100,000 total marijuana smokers in the U.S., and most are Negroes, Hispanics, Filipinos and entertainers. Their Satanic music, jazz and swing, result from marijuana usage. It’s easy to laugh off Anslinger’s ignorant comments because they were made in another era. But recent claims from two other former drug czars are similarly anachronistic and wrongheaded.
William Bennett and John Walters, who served as drug czars for Presidents George H.W. Bush and George W. Bush, respectively, wrote in a recent Washington Examiner op-ed, “Considering all that America knows about drug addiction, only the dishonest or willfully blind can claim that drug trafficking is a non-violent crime.” But who’s being dishonest? After all, words have meanings. “Violent,” for example, means to use physical force to do harm. Yet Bennett and Walters would like people to believe that Debi Campbell, a drug addict herself who sold drugs to buyers in other states through the mail, was violent. Campbell’s most violent act was opening an envelope, yet she served 17 years in federal prison. Stephanie Nodd was sentenced to 30 years in federal prison for helping a friend sell drugs for one month. Stephanie was just 23 years old and had never lifted a finger against any person. Neither Campbell nor Nodd could by any conceivable measure be considered “violent” criminals. Bennett and Walters don’t want you to know they exist. But they do, and there are thousands more just like them.
Indeed, the U.S. Sentencing Commission found that of the 22,000 federal drug offenders sentenced in fiscal 2104, only 142 — or 0.7 percent — used actual violence or threats of violence. 84 percent neither used nor had a weapon during the commission of their offense. And while Bennett and Walters are correct that most federal drug offenders are not college kids who were caught smoking a joint, they mislead readers when they describe them as “experienced traffickers.” Nine out of ten federal drug offenders played no leadership or management role. Many sold drugs solely for the purpose of feeding their own addiction. Again, words mean things. Pretending every drug sale is by definition an act of “violent victimization” is simply false....
One wonders if Bennett and Walters realize how increasingly out of step they are with conservatives across the country. Conservative governors and state lawmakers are utilizing evidence-based solutions to reduce crime and bloated prison budgets, a win-win situation for taxpayers. Many conservatives in Washington, including Senators Ted Cruz (R-TX), Mike Lee (R-UT), and Jeff Flake (R-AZ) support sentencing reform. Cruz has written, “Harsh mandatory minimum sentences for nonviolent drug crimes have contributed to prison overpopulation and are both unfair and ineffective relative to the public expense and human costs of years-long incarceration.”
But, the old drug czars say, “The cost of incarcerating drug dealers is small compared to the true cost of their crimes to society.” Even if that’s true, it’s irrelevant. The choice before Congress is not between incarcerating drug offenders and doing nothing. The more important question is whether sentencing flexibility for drug crimes can more effectively reduce recidivism — and at less cost to taxpayers — than harsh mandatory minimums. The indisputable answer, based on decades of states’ experiences, is yes.
Refusing to let any tragedy go to waste, Bennett and Walters suggest that the frightening increase in heroin overdoses is further evidence of the need for tough drug sentencing laws. What they fail to mention is that heroin dealers are already subject to stiff mandatory minimum sentences and have been for the past 30 years. This heroin epidemic is occurring under the regime Bennett and Walters helped to create. If that were not damning enough to their case, consider that the rate of illegal drug use by teenagers is the same today as it was when Bennett quit as drug czar in 1988.
I know that Bennett and Walters are genuinely concerned about making the country safer. And I agree with them that drug dealing is reprehensible and deserving of swift and certain punishment. Too often, however, their demagoguery appears calculated to exploit the public’s fears about safety the way Harry Anslinger exploited its racial prejudices decades ago. Conservatives interested in reducing crime and drug abuse should ignore fact-free fearmongering and support reforms that are rooted in science, evidence, and experience.
Prior related post:
- Former federal drug warriors assail sentencing reform efforts because "drug dealing is a violent crime"
"Maximum security Nordic 'open prisons' look more like college dorms than penitentiaries"
The title of this post is the headline of this Tech Insider piece (which includes lots of interesting pictures). Here are excerpts:
In countries like Finland, Sweden, and Norway, maximum-security prisons look more like college dorms than stone-cold penitentiaries. In these facilities, which are known as "open prisons," inmates aren't kept in tiny cells with near-zero daylight.
They're given full access to roam around the prison's grounds, the ability to watch TV, and the trust not to abuse those privileges. In essence, criminals are treated more like people than as forces of evil.
"We are parents, that's what we are," Kirsti Njeminen, then-governor of Finland's Kerava prison, told the New York Times in 2003. More than a decade later, the philosophy has stayed the same. As a result, the places that house Northern Europe's most violent offenders might as well be showrooms at Ikea. If the policies seem more like "decarceration," that's by design.
Finland in the mid-20th century looked a lot like the US does today. Imprisonment rates were high, and the policy didn't seem to be doing much good to rehabilitate anyone. But then a group of researchers discovered the unlikely solution: Relax the policies. "The lesson from Finland was that it was perfectly possible to drop the use of imprisonment [by two-thirds,]" Tapio Lappi-Seppälä, head of the Institute of Criminology at the University of Helsinki, tells PRI, "and that did not disturb the crime trend development in Finland." The lesson soon spread through Northern Europe: If you treat even the worst offenders as people, giving them a chance to integrate back into society, they'll often turn around....
In Kerava prison, inmates tend their own gardens. Visitors can even stroll through the garden and buy the plants directly from the prison. And at the Suomenlinna open prison, inmates live in communal housing. The only partition from the outside world is white picket fencing. There is no barbed wire in sight.
Scholars debate endlessly whether a country as big and diverse as the US could implement such a system. Nordic countries have only a few million people, mostly of homogeneous ethnicities, so opponents of the Nordic model tend to argue the results can't be replicated in an immigrant-rich country of more than 300 million.
Those who are more hopeful say there is nothing particular in the DNA of Finns, Norwegians, and Swedes that makes them more peaceful. Instead, they may be products of their environment just as much as those who go on to re-offend in the US. The only difference may be the degree to which people are given the opportunity to change.
Thursday, May 12, 2016
An effective accounting of why "Sentencing Reform is Seriously Stuck"
The quoted portion of the title of this post is from the headline of this effective new Roll Call commentary authored by David Hawkings, and it carries this astute subheadline "Presidential politics, poison pills and attack ads threaten hopes for bipartisan accord." Here are excerpts:
For more than 18 months, a rewrite of laws governing federal criminal punishments has been touted as the exception that was going to prove the rule: An effort that had so galvanized both conservatives and liberals that it would become one of the few memorable policy achievements of the current Congress. Well, the rule has held true about the deadlocked-by-polarization Capitol becoming only more so in the sessions before a presidential election. But the exception, by fits and starts, is growing ever less likely to be exceptional.
“Sentencing reform,” as it’s known on the Hill, is seriously stuck. On the surface, it may not appear that way. Just offstage, there’s a fundamental impasse that looks as if it can only be broken if one sitde caves in, thereby imperiling the highly unusual bipartisan coalition that has been the issue’s signature feature.
Complicating matters further, there are solid presidential and congressional campaign rationales for a deal, but also political arguments in opposition being at least as forcefully expressed. All this is on clearest display in the Senate, where the legislation looks to be riding a little wave of momentum but may be close to publicly coming off the rails – buffeted by anxieties about Willie Horton on the right and anger at Wall Street greed on the left....
[T]here’s a decent chance the [latest revised sentencing reform] bill will come to the floor this summer, assuming the appropriations process inevitably seizes up and there no longer is the need to devote the Senate’s time to spending bills.
Along the way, the measure is going to face one assault from powerful Republicans determined to kill it outright, and another from Republicans willing to love it to death. Ted Cruz of Texas, who returned to the Capitol this week vowing to press ahead with the combative outsider tone of his presidential campaign, and Jeff Sessions of Alabama, the first senator to endorse de facto GOP nominee Donald Trump, are leading the lambasting of the bill as going way too soft on crime.
A floor debate would give Cruz an opportunity to put his scorched-earth style for opposing legislation back on C-SPAN display. And though Trump has not taken an explicit position on the bill, his many authoritarian statements suggest he’ll take Sessions’ advice and come out emphatically against it – especially if his likely opponent, Hillary Clinton, who’s become newly critical of “mass incarceration,” decides to endorse the bill. So it’s quite easy to envision law-and-order groups producing 30-second TV spots, evocative of the legendary Willie Horton ad from the 1988 presidential campaign, chiding even the GOP backers of the bill as pro-drug-dealer criminal justice weaklings.
The other big obstacle, which might prove even more problematic, goes by the much nerdier label, mens rea. That Latin phrase, which translates as “guilty mind,” is law school shorthand for the way prosecutors are sometimes required to prove a defendant’s criminal intent in order to obtain a conviction. Under federal law, many categories of behavior are crimes only when the accused know what they’re doing is wrong and do it anyway – but some actions can bring convictions and imprisonment whether or not there’s any willful criminal intent.
Many influential Republicans, urged on by their business allies and such conservative fundraising forces as the Koch brothers, are eager to apply a blanket mens rea requirement across the federal criminal code. They say the government has too much power to convict companies and their executives without having to prove any criminal intent. And they are eyeing the sentencing overhaul bill as their best available vehicle for getting the job done.
Lawmakers and activists from the Bernie Sanders wing of the Democratic Party deride this proposal as a thinly veiled effort to deliver a permission slip for more “What, me worry?” sketchy behavior to the same sort of bad actors in the corporate and investment worlds who melted down the economy eight years ago. These liberal forces, too, have the ability to produce punchy campaign commercials targeting those in Congress who go along.
Even if the bill gets through the Senate without having to swallow the mens rea poison pill, top Republicans in the House are insisting that sentencing legislation will only move if it’s lashed together with their efforts to expand the need to prove criminal intent. The Obama administration argues the opposite, that the only way to sign a bill on sentencing this year is to negotiate protections for unwitting white collar criminals on a separate track.
One again this campaign season, it’s the small clusters of combative voices at the edges that are likely to have more power than any collaborative majority in the middle.
Not only does this piece effectively detail all the ways in which and reasons when the revised SRCA might not make it through the legislative process over the next six month, it also hints at an intriguing and perhaps disconcerting reality that for me has now emerged: GOP Prez front-running Donald Trump is now perhaps the political power-player with the greatest opportunity to "unstick" the SRCA.
If GOP Prez candidate Trump were to make nice to certain key GOP leaders like Paul Ryan and Chuck Grassley and John Cornyn (not to mention key GOP funders like the Koch brothers) by getting seriously and vocally behind the significant sentencing reform efforts by the "establishment right" (with or without mens rea reform), then I would increase my optimism about the odds of these reforms becoming a reality. But if Trump stays mum on this front, or especially if prodded by folks like Jeff Sessions and Chris Christie to oppose any reforms, I think the 2016 campaign dynamics will come to doom reform at least until we get to the lame duck period.
A few 2016 related posts:
- Mark Holden, GC at Koch Industries, makes "The Factual Case for Criminal Justice Reform"
- Former AG Mukasey delivers "clear" message to GOP on SRCA: "Law enforcement asks you to pass this bill."
- Is the Supreme Court fight already starting to "doom" federal statutory sentencing reform?
- Notable new comments and commitments on criminal justice reform from GOP House Speaker Paul Ryan
- Quick (inside-the-Beltway) reflections on the latest odds of those inside-the-Beltway getting federal sentencing reform done in 2016
- "Senators Announce New Provisions & Cosponsors to Bipartisan Sentencing Reform and Corrections Act"
- Senator Jeff Sessions (and thus Donald Trump?) comes out swinging against revised SRCA
Can and should Missouri, after completing its last execution for a while, send any extra execution drugs to other needy states?
The question in the title of this post is prompted by this AP article about the first and likely last execution in Missouri this year. The piece is headlined "Missouri man put to death for killing deputy, 2 others; could be last execution for some time," and here are the basics:
A man who killed two people in a drug dispute and a sheriff’s deputy in a subsequent shootout was put to death Wednesday in what could be Missouri’s last execution for some time.
Earl Forrest, 66, went to the home of Harriett Smith in December 2002 and demanded that she fulfill her promise to buy a lawn mower and mobile home for him in exchange for introducing her to a source for methamphetamine. During an argument, Forrest shot Smith and Michael Wells, who was visiting Smith’s home. Forrest later fatally shot Dent County Sheriff’s Deputy Joann Barnes after she arrived at Forrest’s home.
Missouri has executed 19 men since November 2013. But the remaining 25 death row inmates either have appeals still pending or other reasons they will not face imminent execution. Forrest’s fate was sealed hours before his punishment when the U.S. Supreme Court refused to halt the execution and Missouri Gov. Jay Nixon, a Democrat, turned down a clemency request.
According to court documents, Forrest had been drinking when he went to Smith’s home in the southern Missouri town of Salem. Wells was visiting Smith at the time. An argument ensued, and Forrest shot Wells in the face. He shot Smith six times and took a lockbox full of meth valued at $25,000. When police converged on Forrest’s home, he fatally shot Barnes and injured Dent County Sheriff Bob Wofford, according to court documents. Forrest was also injured in the exchange of gunfire, along with his girlfriend, Angela Gamblin.
Missouri has been one of the most prolific states for executions in recent years, second only to Texas. The state has executed 19 prisoners since November 2013, including six last year. Forrest’s execution was the first in 2016.
Missouri’s death row population is dwindling. Robert Dunham, executive director of the Death Penalty Information Center in Washington, said juries today are less likely to opt for capital punishment, in part because of greater awareness of how mental illness sometimes factors in violent crime. Just 49 people were sentenced to death nationally last year, the fewest since the U.S. Supreme Court reinstated the death penalty as a possible punishment in 1976. No one was sentenced to death in Missouri in 2014 or 2015, Dunham said. “As these executions take place, fewer and fewer people are being sentenced to death, so the death penalty is withering on the other end,” Dunham said.
None of the 25 other men remaining on Missouri’s death row face imminent execution. Sixteen have yet to exhaust court appeals and aren’t likely to do so soon. Execution is on hold for nine others. Two were declared mentally unfit for execution. Two were granted stays because of medical conditions that could cause painful deaths from injections. Two had sentences set aside by the courts due to trial attorney errors. One inmate was granted a stay while his innocence claim is reviewed. One case was sent back to a lower court to consider an appeal.
And in one unusual case, inmate William Boliek was granted a stay by Democratic Gov. Mel Carnahan in 1997. The case wasn’t resolved before Carnahan died in a 2000 plane crash, and a court determined that only Carnahan could overturn the stay. Nixon’s office has said Boliek will not be executed.
As regular readers may recall and as Ohio capital lawyers know well, while Missouri has had the lethal injection drugs needed to carry out nearly 20 executions in the last few years, the Buckeye state has more than two dozen execution scheduled that have been persistently delayed because the state cannot seem to get its hands on any lethal injection drugs. I do not know where Mizzou gets its lethal injection drugs or whether it has some additional drugs on hand now without any executions scheduled for the foreseeable future. But I do know that a functioning legal system with large percentages of voters and elected officials supporting a functioning death penalty ought to be able to figure out some way for nearby states to help each other out in this arena.
I bring this up because I have long believed in the aphorism "where there's a will, there's a way." And thus, I have also come to believe that the main reason Ohio has not been able to figure out how to secure needed execution drugs (while many other states seem to have these drugs) is because there just is not the political will to fix the state's enduring capital punishment administrative problems.
Wednesday, May 11, 2016
"Detaining the Poor: How money bail perpetuates an endless cycle of poverty and jail time"
The title of this post is the title of this notable new report from the folks at the Prison Policy Initiative. Here are some excerpts from the start of the report:
In addition to the 1.6 million people incarcerated in federal and state prisons, there are 646,000 people locked up in more than 3,000 local jails throughout the U.S. Seventy percent of these people in local jails are being held pretrial — meaning they have not yet been convicted of a crime and are legally presumed innocent. One reason that the unconvicted population in the U.S. is so large is because our country largely has a system of money bail, in which the constitutional principle of innocent until proven guilty only really applies to the well off. With money bail, a defendant is required to pay a certain amount of money as a pledged guarantee he will attend future court hearings. If he is unable to come up with the money either personally or through a commercial bail bondsman, he can be incarcerated from his arrest until his case is resolved or dismissed in court.
While the jail population in the U.S. has grown substantially since the 1980s, the number of convicted people in jails has been flat for the last 15 years. Detention of the legally innocent has been consistently driving jail growth, and the criminal justice reform discussion must include a discussion of local jails and the need for pretrial detention reform. This report will focus on one driver of pretrial detention: the inability to pay what is typically $10,000 in money bail. Building off our July 2015 report on the pre-incarceration incomes of people in prison, this report provides the pre-incarceration incomes of people in local jails who were unable to post a bail bond. This report aims to give the public and policymakers the foundation for a more informed discussion about whether requiring thousands of dollars in bail bonds makes sense given the widespread poverty of the people held in the criminal justice system and the high fiscal and social costs of incarceration.
We find that most people who are unable to meet bail fall within the poorest third of society. Using Bureau of Justice Statistics data, we find that, in 2015 dollars, people in jail had a median annual income of $15,109 prior to their incarceration, which is less than half (48%) of the median for non-incarcerated people of similar ages. People in jail are even poorer than people in prison and are drastically poorer than their non-incarcerated counterparts....
Because a system of money bail allows income to be the determining factor in whether someone can be released pretrial, our nation’s local jails are incarcerating too many people who are likely to show up for their court date and unlikely to be arrested for new criminal activity. Although, on paper, it is illegal to detain people for their poverty, such detention is the reality in too many of our local jails. Our country now has a two-track system of justice in which the cost of pretrial liberty is far higher for poor people than for the well off.
Sixth Circuit panel sends Miller litigation about Michigan juve LWOPers needs review anew after Montgomery
A Sixth Circuit panel today issues an interesting (non)opinion about the state and fate of federal litigation over the fate and future of Michigan juveniles serving LWOP sentences that are unconstitutional because imposed under a mandatory sentencing system. Here is how the opinion in Hill v. Snyder, No. 13-2661 (6th Cir. May 11, 2012) (available here), gets started:
This long-running case returns us to the difficult topic of juvenile crime and punishment. Our return, however, is to a new legal landscape, one defined by the Supreme Court’s developing jurisprudence recognizing that the unique characteristics of youth matter in determining the propriety of their punishment. This case began when Michigan charged and tried the named plaintiffs as adults for acts they committed while under the age of 18. Each received a conviction for first-degree murder and a mandatory sentence of life in prison. Michigan laws in place at the time rendered anyone convicted of firstdegree murder ineligible for parole, meaning that the plaintiffs in this case effectively received mandatory sentences of life in prison without the possibility of parole for acts they committed as children.
Plaintiffs filed suit in federal district court in 2010 challenging, among other things, the constitutionality of the Michigan statutory scheme that barred them from parole eligibility. Since that time, at least three important legal events have come to pass. First, the Supreme Court held in Miller v. Alabama, 132 S. Ct. 2455 (2012), “that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’” Id. at 2460. Second, Michigan amended its juvenile offender laws in light of Miller, but made some of those changes contingent upon either the Michigan Supreme Court or the United States Supreme Court announcing that Miller’s holding applied retroactively. See Mich. Comp. Laws Ann. §§ 769.25, 769.25a (2014). And, third, the United States Supreme Court recently held in Montgomery v. Louisiana, 136 S. Ct. 718 (2016), that Miller’s prohibition on mandatory life without parole for juvenile offenders is indeed retroactive.
The district court wisely (and presciently) reached the conclusion that Miller should apply retroactively when it ruled on the parties’ cross-motions for summary judgment in 2013. That conclusion also drove the district court’s issuance of an injunctive order against defendants requiring compliance with Miller. In light of the legal changes described above, however, and for the reasons that follow, we VACATE the challenged district court orders and REMAND for the district court to address these issues under the legal landscape established by Montgomery v. Louisiana, Miller v. Alabama, and this opinion.
"Retribution and the Limits of Criminal Justice"
The title of this post is the title of this book chapter recently posted to SSRN and authored by Michael Louis Corrado. Here is the abstract:
Those who claim that retributivism is a morally defensible position point to two things in support of that claim: retribution is said to justify the deliberate imposition of suffering as a way of controlling crime, and it is said to limit that imposition by the boundaries it sets. First of all, assuming that what we seek from punishment is to deter wrongdoers, we still need some way to justify the heaping of pain upon past wrongdoers as a means to that end. Desert, says the retributivist, solves this problem: what justifies harming the wrongdoer is that he brought it on himself. But the second thing is that although the fact that they have committed crimes in the past means that we are entitled to punish them, retribution sets down limits. The punishment the wrongdoer deserves is limited by his culpability and by the seriousness of his crime. If the punishment exceeds what is deserved, it is not justified. That at least is the story that the retributivist tells.
The second part of this argument is important in its own right. There are those who would argue that whether or not retribution and desert have any foundation in fact it is important that we act as though they do, especially in connection with the criminal law, because the consequences of abandoning them are too dire to be born. We would lose the limits that come with retribution. Regardless, then, of whether in fact human beings actually have free will, regardless of whether they are responsible for what they do, regardless of whether anyone actually deserves to be punished, regardless of whether retribution is ever justified, it is still morally desirable to insist on desert and retribution because without them we are bereft of the principles that limit the state’s use of the coercive machinery of criminal justice. The idea is that if we do not pretend human beings have free will and responsibility, the law will not know where to draw the line in its use of the instruments of the criminal justice system against wrongdoers.
My aim in this Chapter is to devalue retributivism as a boundary-setter and to show that even if retribution were an acceptable aim, even if some individuals did deserve punishment and even if punishment had to be limited to what those individuals deserve, that would not limit state’s use of coercive force and in particular its use of the preventive methods of quarantine in any way.
How many death sentences nationwide would get overturned if juror unanimity were constitutionally required for death sentences?
The question in the title of this post came to my mind after seeing this Los Angeles Times opinion piece headlined "Florida's death penalty should require unanimous jury votes." Here are excerpts from piece:
In a criminal jury trial, a conviction requires a unanimous verdict of guilt, whether the crime is a low-level drug possession charge or capital murder. But in Florida, after all 12 members of a jury have found the accused guilty, only 10 of them have to agree that the defendant should die for the crime. It’s absurd to require a lower level of agreement to send someone to death than is required to find the person guilty in the first place.
Florida Circuit Judge Milton Hirsch reached the same conclusion in a decision Monday that declared Florida’s latest death penalty law in violation of the state’s constitution. That decision followed arguments a few days earlier before the state’s Supreme Court over whether the U.S. Supreme Court decision in Hurst v. Florida, which found the state’s sentencing-decision process unconstitutional, meant that all 390 people on Florida’s death row should have their sentences converted to life. Yes, it does. If the sentencing process is unconstitutional, then the sentences are, too....
In the Hurst case, the Supreme Court affirmed that only a jury can make a finding of fact. Florida, in an effort to save its death penalty, rewrote its law to say the jury must decide whether the death penalty was appropriate. But the U.S. Supreme Court didn’t say how many jurors must make that call, and the revised state law raised the threshold to 10 of the 12 jurors.
Hirsch’s decision on Monday said that no, under the state’s constitution, a super-majority is not enough. His logic is a bit attenuated, but sound. Florida’s constitution guarantees trial by jury but doesn’t specify that a unanimous verdict must be reached. However, decades of practice, and common law, set unanimity as the standard threshold for a verdict. And since the revised law calls the jury’s finding for the death penalty a verdict, then it must be unanimous....
The least Florida can do is require unanimity by a jury before deciding to kill someone. And it should either grant fresh sentencing trials for those on death row or — and this is the preferred, more humane solution — commute the death sentences to life sentences.
Notably, two of the four states in the US with the largest death rows (Florida and Alabama) have sentenced a significant number of murderers to death without a unamimous jury recommendation to that effect. Though it is not clear that roughly all 600 persons on those states' death rows would be sure to get relief from a constitutional rule requiring jury unanimity for death recommendations, a suspect a significant number would. And even if only half of those condemned would get relief, that could cut the size of the US death row population down by more than 10 percent.
The Supreme Court's ruling in Hurst studiously avoided weighing in on this jury unaniminty issue, but I am not sure it is point to be able to avoid it for too much longer in light of what is going on in Florida and perhaps other places in the post-Hurst world.
A few prior related post:
- Prominent Floridians call for state Supreme Court to reverse all past Florida death sentences
- An astute accounting of one view on how the post-Hurst hydra in Florida ought to be slayed
- Florida state judge declares unconstitutional state's post-Hurst revised death penalty procedures
Tuesday, May 10, 2016
New study suggests California's prison population reduction via realignment has been generally successful
This new entry at The Crime Report, headlined "California's Prison Downsizing Offers a Model for Other States, Study Says," reports on notable new research suggesting that crime has not increased dramatically after California was force in the wake of the Plata ruling to reduce its prison population. Here is the start of the entry describing the research:
The success of California's Public Safety Realignment Act in reducing state prison populations without a corresponding increase in crime suggests that other jurisdictions around the country can enact similar reforms without endangering public safety, according to a study published in the latest issue of Criminology & Public Policy, an American Society of Criminology journal.
The study, entitled “Is Downsizing Prisons Dangerous? The Effect of California’s Realignment Act on Public Safety” [available here], cites already published data showing that the 17 percent reduction in the size of California’s prison population over a 15-month period, beginning with the Act's implementation in 2011, did not have an effect on aggregate rates of violent crime or property crime.
"Moreover, 3 years after the passage of Realignment, California crime rates remain at levels comparable to what we would predict if the prison population had remained at 2010 levels," write authors Jody Sundt of Indiana University, Emily J. Salisbury of University of Nevada, Las Vegas, and Mark G. Harmon of Portland State University.
The California results demonstrate that "we make a mistake...when we assume that prisons are the only meaningful or viable response to crime,” the authors add.
According to the data referenced in the study, the California Realignment Act reduced the size of the state’s prison population by 27, 527 inmates within 15 months. Many of the inmates were transferred to local jails or released into the community. Critics of the Act linked the policy to recorded increases in offenses such as auto theft. But the authors argued that the slight uptick in such offenses leveled off over time--and was not necessarily linked to realignment.
These results should serve as an object lesson for other jurisdictions, said the authors. "For the first time in decades it appears that a 'window of opportunity' for justice reform is opening to allow for a reevaluation of the effectiveness and wisdom of policies that have created the largest prison population in the world," they wrote, citing a phrase used by criminologist Michael Tonry.
Tenth Circuit finds Fifth Amendment problems in sex offender treatment program requirement as part of conditions of supervised release
A helpful reader alerted me to think interesting new Tenth Circuit panel ruling in US v. Von Behren, No. 15-1033 (1th Cir. May 10, 2016) (available here), which gets started this way:
Brian Von Behren is serving a three-year term of supervised release stemming from a 2005 conviction for distribution of child pornography. One of the conditions of his supervised release was modified to require that he successfully complete a sex offender treatment program, including a sexual history polygraph requiring him to answer four questions regarding whether he had committed sexual crimes for which he was never charged. The treatment program required him to sign an agreement instructing the treatment provider to report any discovered sexual crimes to appropriate authorities. Mr. Von Behren contended that the polygraph condition violates his Fifth Amendment privilege against self-incrimination. The district court disagreed and held that the polygraph exam questions do not pose a danger of incrimination in the constitutional sense. Mr. Von Behren refused to answer the sexual history questions, thereby requiring the treatment provider to expel him from the program and subjecting him to potential revocation of his supervised release for violating the condition of supervision. The district court denied Mr. Von Behren’s request to stay further proceedings pending appeal, but this court granted a stay. We reverse on the Fifth Amendment issue.
"Litigating from the Prison of the Mind: A Cognitive Right to Post-Conviction Counsel"
The title of this post is the title of this notable new paper authored by Ken Strutin now available via SSRN. Here is the abstract:
This article attempts to draw a picture of the incarcerated without counsel, who are separated from justice by the inhumanity of their imprisonment, the poverty of their information resources and the detriments of their cognitive life.
Part I sets the stage by describing the conditions of confinement, the confined, and the state of pro se personhood. Part II addresses the reality of petition or perish created by Bounds and Casey. Part III concentrates on the necessity of a right to counsel borne from the conditions of confinement and the technological, physical and psychological barriers that burden the incarcerated. Among the most significant barriers to be considered are: (1) legal illiteracy and inferior research media; (2) impaired learning and thinking due to stress of confinement; and (3) cognitive disadvantage engendered by the gap between print and electronic research.
Monday, May 9, 2016
Florida state judge declares unconstitutional state's post-Hurst revised death penalty procedures
As reported in this new local article, a "Miami-Dade judge has ruled that Florida’s death penalty is unconstitutional because jurors are not required to agree unanimously on execution." Here is more:
Circuit Judge Milton Hirsch on Monday issued the ruling in the case of Karon Gaiter, who is awaiting trial for first-degree murder. Hirsch wrote that Florida’s recently enacted “super majority” system – 10 of 12 juror votes are needed to impose execution as punishment for murder – goes against the long-time sanctity of unanimous verdicts in the U.S. justice system.
“A decedent cannot be more or less dead. An expectant mother cannot be more or less pregnant,” he wrote. “And a jury cannot be more or less unanimous. Every verdict in every criminal case in Florida requires the concurrence, not of some, not of most, but of all jurors – every single one of them.”...
In January, in the case of Timothy Lee Hurst, the U.S. Supreme Court declared the state’s death sentencing system unconstitutional because it gave too little power to juries. For decades, jurors only issued majority recommendations, with judges ultimately imposing the death penalty. The high court, however, did not rule on the unanimity question. Except for Alabama and Florida, all other states that have the death penalty require a unanimous jury verdict to impose the death sentence....
After the Hurst case was decided in January, Florida lawmakers were forced to fix the death-penalty sentencing scheme. Florida’s new law requires juries to unanimously vote for every reason, known as aggravating factors, that a defendant might merit a death sentence. Whether to actually impose the death sentence requires 10 of 12 jurors. “All of these changes inure to the benefit of the defendant,” Assistant State Attorney Penny Brill wrote in a motion in the Gaiter case earlier this year. “These requirements render Florida’s system constitutional under the United States Supreme Court’s precedents.”
Judge Hirsch, in his order, said the fixes don’t matter. “Arithmetically the difference between twelve and ten is slight,” Hirsch wrote. “But the question before me is not a question of arithmetic. It is a question of constitutional law. It is a question of justice.”
The full 18-page order referenced here is available at this link, and a quick scan of opinion reviews that it includes quotes from William Shakespeare, William Blackstone, Winston Churchill, Glanville Williams, the prophet Elijah, and lots of other notable sources.
Former federal drug warriors assail sentencing reform efforts because "drug dealing is a violent crime"
William J. Bennett, the director of drug control policy for President George H. W. Bush, and John P. Walters, the director of drug control policy for President George W. Bush, have this notable new Washington Examiner op-ed headlined "Drug dealing is a violent crime." Here are excerpts:
The Sentencing Reform and Corrections Act now before Congress is based on a lie — that drug dealing is not a violent crime. Americans have been told this lie for years even as we witness the violence and death caused by drug dealers in our communities. Now, this lie is propelling legislation through Congress that will destroy more lives.
As former directors of the Office of National Drug Control Policy, we carry a particular responsibility to speak up when so many who should know better claim that drug trafficking has been treated too harshly under federal law.
Claims by President Obama and others that federal prisons are filled with "nonviolent drug offenders" and that drug dealing is a "victimless crime" are grotesquely dishonest. How can the drug trade be victimless when most Americans know a victim? How can it be non-violent when we witness the carnage every night on the local news?...
In the federal prison system, 99.5 percent of those incarcerated for drug convictions are guilty of serious trafficking offenses. And according to a Bureau of Justice Statistics study of state drug inmates, 77 percent reoffend within five years of release, with 25 percent committing violent offenses. Most of these convicted drug dealers are career criminals with long rap sheets. By softening punishments for these traffickers, as this legislation does, Congress would give convicted dealers shorter sentences and early release causing destruction to communities across America. Moreover, this push to release experienced traffickers is occurring at the same time our nation is enduring a 440-percent increase over the past seven years in heroin overdose deaths.
Drug dealing is inseparable from violent victimization. Illegal drugs kill tens of thousands each year in overdose deaths. More die in violent acts and accidents under the influence of drugs. Still more die slowly of blood-borne diseases contracted through injection drug use and through high-risk behavior while under the influence of drugs, including prostitution to support addiction. Street-level dealers look into the eyes of these victims daily as they take addicts' money and foster their self-destruction. Traffickers at levels above the street know this reality and take their wealth from it, spreading death across neighborhoods and across the globe....
Considering all that America knows about drug addiction, only the dishonest or willfully blind can claim that drug trafficking is a non-violent crime. Drug dealing depends on addiction; addicts consume the vast majority of the drug supply; the dealer cultivates users to create more addicts in a murderous cycle.
Drug dealers know drugs will eventually impair judgment and bend free will, altering personality and poisoning bonds to loved ones. We know drug use and addiction degrade millions of lives — impairing education, employment and parenthood. Drugs are at the root of much of the child abuse, endangerment and domestic violence perpetrated against the innocent.
But the destruction is much wider. Addiction and drug dealing ravage whole communities, urban and rural. We need look no further than the daily reports of the heroin epidemic today, or the still-vivid memories of the meth epidemic and the crack epidemic. Drug dealing makes whole neighborhoods war zones, places of economic blight and large-scale victimization. There is no greater single source of actual harm to Americans today — none. The cost of incarcerating drug dealers is small compared to the true cost of their crimes to society.
Knowing this, it is an utterly irresponsible effort to release experienced drug dealers from federal prison before they have completed their just sentences, arguing they are merely misguided business people or desperate individuals caught up in an unfair system. The truth about drug dealing is this: It requires cruelty and willful indifference to the visible suffering inflicted on others — over and over again — harming individuals, families and whole communities.
"Louisiana’s Color-Coded Death Penalty"
The title of this post is the headline of this new New York Times editorial, which gets started this way:
The last time a white person in Louisiana was executed for a crime against a black person was in 1752, when a soldier named Pierre Antoine Dochenet was hanged after attempting to stab two enslaved black women to death with his bayonet.
This is just one of many grim facts in a new report describing the history of capital punishment in Louisiana and analyzing the outcome of every death sentence imposed in that state since 1976, when the Supreme Court reversed its brief moratorium on executions and allowed them to resume.
Racism has always been at the heart of the American death penalty. But the report, in the current issue of The Journal of Race, Gender, and Poverty, drives home the extent to which capital punishment, supposedly reserved for the “worst of the worst,” is governed by skin color.
In Louisiana, a black man is 30 times as likely to be sentenced to death for killing a white woman as for killing a black man. Regardless of the offender’s race, death sentences are six times as likely — and executions 14 times as likely — when the victim is white rather than black.
Sunday, May 8, 2016
Some critical reflections on Prez Obama's clemency efforts and some ideas about what could have been
Late last week, the Washington Post had this lengthy article reviewing the various problems encoutered during President Obama's clemency push over the last few years. The piece is headlined "Lack of resources, bureaucratic tangles have bogged down Obama’s clemency efforts," and it effectively summarized many of the difficulties previously reported on this blog. Here are excerpts:
In the waning months of his presidency, Obama has made commutations for nonviolent drug offenders a centerpiece of his effort to reform the country’s criminal-justice system. But behind the scenes, the administration’s highly touted clemency initiative has been mired in conflict and held up by a bureaucratic process that has been slow to move prisoner petitions to the president’s desk.
Obama has granted 306 commutations to federal prisoners — more than the past six presidents combined. But as of Friday, 9,115 commutation petitions were pending with little time left to review them. Of these, fewer than 2,000 appear to be eligible for the president’s clemency program, according to a Justice Department official. Thousands more are still being reviewed by outside lawyers.
From the beginning, the program was beset by problems, including a lack of resources and a cumbersome, multilevel review system. The U.S. pardon attorney at the Justice Department makes recommendations that move to the deputy attorney general, who reviews the cases and sends them to the White House counsel, who considers them again before choosing which ones go to Obama.
The pardon attorney became so frustrated that she quit earlier this year and wrote a scathing resignation letter to Deputy Attorney General Sally Q. Yates. Deborah Leff said that despite her “intense efforts” to do her job, the Justice Department had “not fulfilled its commitment to provide the resources necessary for my office to make timely and thoughtful recommendations on clemency to the president.”...
On Thursday, Obama commuted the sentences of 58 prisoners, his second round of clemencies in three months as the program has picked up steam. Administration officials say that they are addressing obstacles that have plagued the clemency initiative. The Justice Department has added lawyers to the pardon office. And White House Counsel Neil Eggleston has promised that many more petitions will be granted in the president’s final eight months.
“The President is deeply committed to the clemency initiative. That is evident not only by the historic number of commutations he’s granted to date, but by his wholesale approach to revamping the way the government approaches commutations,” White House spokeswoman Brandi Hoffine said in a statement. “That change helped spark a long overdue conversation about reforming our criminal justice system, which we hope will result in Congressional action so that many more deserving individuals can benefit from a second chance.”...
An attorney who worked in the pardon office at the same time as Leff said that with petitions flooding in, it was extremely difficult with so few lawyers to sort out complicated drug cases and figure out whether they met the department’s strict criteria. To get more help, Cole reached out to the private bar to set up another layer of lawyers to read applications.
Outside lawyers formed an organization called Clemency Project 2014, which includes Families Against Mandatory Minimums, the American Civil Liberties Union, the American Bar Association and the National Association of Criminal Defense Lawyers. An army of about 4,000 volunteer lawyers from across the country signed up to help in what has become one of the largest pro bono efforts in the history of the American legal profession. Seventy large law firms, more than 500 small firms and solo practitioners, and 30 law schools are involved, according to Cynthia W. Roseberry, the project’s manager. But it took nearly a year for the group to get organized and recruit and train lawyers, many of whom had no experience in criminal law.
An overwhelming 36,000 inmates — about 17 percent of the federal prison population — filled out surveys asking for help from the Clemency Project. Even though the Justice Department had its own backlog, officials there privately complained that the outside Clemency Project lawyers, with their multiple levels of review, were taking too long to send more petitions. That in turn frustrated the Clemency Project attorneys, who said they were working carefully to locate old legal documents, contact prosecutors and judges, look at prison behavior records and try to get pre-sentencing reports and sentencing transcripts. At the same time, they have been weighing risks to public safety....
Some critics say the White House could have avoided many of these headaches by modeling the process after the way President Gerald Ford handled clemencies for Americans who had deserted the Army or failed to show up for the draft during the Vietnam War. With 600 people working on a special commission to review the cases, Ford granted 14,000 clemencies in one year. Law professor Mark Osler, co-founder of New York University’s Clemency Resource Center, said the initiative also might have gone more smoothly if Obama had moved the pardon attorney’s office into the White House rather than keeping it under career prosecutors who may find it difficult to reverse other prosecutors’ decisions.
This recent Fusion piece, headlined "The bold step President Obama could take to let thousands of federal inmates go free," provides a thorough discussion of the special clemency commission that President Ford had set up to deal with a massive number of Veitnam draft dodgers and desserters and which was able to process tens of thousands of clemency cases in just a year. Here is how it concludes:
If Obama had appointed a Ford-style clemency board, he could have cut down the bureaucracy to three or four steps: a review by the board’s staff, a review by the board, a review by the White House counsel, a review by the president.
In the last few months, Obama’s advisers have been making the argument that he’s granted “more [clemencies] than the previous six Presidents combined.” But that calculation is false, as it incorrectly ignores the clemencies granted through Ford’s commission. (A White House spokesperson noted that Department of Justice statistics only count the 22 non-Vietnam related clemencies that Ford granted.)
For many recent presidents, clemency has been treated more like an afterthought. Until recently, Obama announced them at the end of each year, before he jets off to Hawaii with his family — a last-minute Christmas gift to a tiny handful of prisoners.
With fewer than 10 months left in office, even if Obama had a change of heart and decided to create a clemency board today, it would almost surely be too late. But [clemency advocates Nkechi] Taifa and Osler say it’s an idea that should be picked up by the next president. “This should not end with the Obama administration,” Taifa said.
“I do not want to delay another day in resolving the dilemmas of the past, so that we may all get going on the pressing problems of the present,” Ford said when he announced his clemency board. If President Obama—or the next president—wants to resolve the past failings of our criminal justice system, then they should also take lessons from one of its rare success stories.
"Designing Plea Bargaining from the Ground Up: Accuracy and Fairness Without Trials as Backstops"
The title of this post is the title of this notable new paper authored by Stephanos Bibas now available via SSRN. here is the abstract:
American criminal procedure developed on the assumption that grand juries and petit jury trials were the ultimate safeguards of fair procedures and accurate outcomes. But now that plea bargaining has all but supplanted juries, we need to think through what safeguards our plea-bargaining system should be built around.
This Symposium Article sketches out principles for redesigning our plea-bargaining system from the ground up around safeguards. Part I explores the causes of factual, moral, and legal inaccuracies in guilty pleas. To prevent and remedy these inaccuracies, it proposes a combination of quasi-inquisitorial safeguards, more vigorous criminal defense, and better normative evaluation of charges, pleas, and sentences. Part II then diagnoses unfair repercussions caused by defendants’ lack of information and understanding, laymen’s lack of voice, and the public’s lack of information and participation. To prevent and fix these sources of unfairness, it proposes ways to better inform pleas and to make plea procedures more procedurally just.
Saturday, May 7, 2016
An astute accounting of one view on how the post-Hurst hydra in Florida ought to be slayed
Regular readers know that, after the US Supreme Court in Hurst declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term "post-Hurst hydra" to describe the multi-headed, snake-like capital litigation sure to develop as judges tried to make sense of what Hurst must mean for past, present and future cases. Of particular significance in Florida, which has second largest death row in the nation and holds roughly one of every seven condemed murderers in the US, is what will become of all those sentenced to death before Hurst.
As noted in this post a few days ago, the Florida Supreme Court took up this question this past week, and some prominent Floridians argued that all those previously sentenced to death should have their sentences changed to life without parole. But, with this is sure to be a popular view among death penalty abolitionists, death penalty supporters are not likely to readily embrace this solution. And, very helpfully, Kent Scheidegger at Crime & Consequences has this lengthy and thorough post providing an astute review of what existing Supreme Court retroactivity jurisprudence should mean. The post is titled "What Happens to the Florida Death Row Cases After Hurst?", and here is how it starts and ends:
In January, the U.S. Supreme Court decided in Hurst v. Florida that the Florida capital sentencing system did not comply with a series of cases beginning with Apprendi v. New Jersey (2000). Yesterday, the Florida Supreme Court heard oral argument on remand in the Hurst case. Several people have asked me what should/will happen to the cases of the murderers presently on death row in Florida. "Should" is easier to answer than "will":
1. Cases final on direct appeal (i.e., those where the Florida Supreme Court has affirmed the judgment in the initial appeal and the U.S. Supreme Court has denied the petition to take the case up or the defendant did not file one) should not be affected by Hurst.
2. Cases already tried and pending on appeal should be affirmed under the "harmless error" rule if it is clear beyond a reasonable doubt that the jury would have unanimously found at least one aggravating circumstance if they had been asked to do so. For example, if the jury convicted the defendant of robbery and murder and there is no question in the case that the murder was committed in the course of the robbery (an aggravating circumstance), that would be harmless error.
3. Cases where there is a Hurst error that does not meet the standard for harmless error should be retried as to penalty under the new statutory procedure....
The Florida Legislature acted swiftly after Hurst to enact a new procedure meeting the newly minted constitutional requirements. Why? Because it considers enforcement of the death penalty important. Why, then, would the legislature want a whole class of sentences wiped out? It would not. Attributing such an intended result makes no sense given the purpose of the law.
Finally, there is the matter of arbitrariness. Arbitrariness necessarily works both ways. Just as people should not arbitrarily be sentenced to punishment, neither should they arbitrarily be spared a punishment they deserve. Arbitrary sparing of some is necessarily arbitrary infliction on those not spared.
The whole point of our complex jurisprudence of capital sentencing is to make the sentence fit what the murderer deserves. Commuting a wide swath of sentences based on an accident of timing without any regard for just deserts is arbitrary. Absent strong evidence the legislature intended this result, it should not be attributed to them.
The new act should apply to any cases remanded for resentencing.