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Wednesday, January 11, 2017

Great political and practical "state of reform" reviews via Jacobin

ImagesThe magazine Jacobin has recently run two effective pieces by two effective writers about the politics and practicalities of modern sentencing reform efforts. Here are links to the lengthy pieces, both of which I recommend in full, with their introductions:

"Conservatives Against Incarceration?: Fiscal conservatives were never going to bring down the carceral state. A broader fight against social inequality is needed." by Marie Gottschalk

Many are mourning the death of comprehensive criminal justice reform at the federal level in the wake of the election of Donald Trump, who unabashedly campaigned as the law-and-order candidate. They fear we may be at the beginning of the end of the “smart-on-crime” era, in which historic adversaries across the political spectrum joined forces to reverse the punitive policies and politics that have turned the United States into the world’s leading warden.

Some have sought solace in the belief that Trump’s victory will have a limited impact because most people are apprehended, tried, and sentenced subject to state and local statutes and authorities, not federal ones, and that 90 percent of the more than 2 million people incarcerated today in the United States are serving their time in state prisons and county jails, not federal penitentiaries. They view Trump as a political meteorite that may have blown up the elite bipartisan reform coalition in Washington as it blazed through an uncharted political universe but left promising reform coalitions at the state and local levels largely intact.

This conventional postmortem paradoxically overestimates Trump’s responsibility for imperiling criminal justice reform at the national level while underestimating his likely impact on state and local reform efforts.

Trump’s outsized personality and spectacular victory obscure the reality that the smart-on-crime approach had severe limitations and weaknesses that have been hiding in plain sight for years. The politics that gave birth to this strange bedfellows coalition engineered by Right on Crime — a group of brand-name conservatives and libertarians that included Newt Gingrich, Grover Norquist, and Charles and David Koch — helps explain both its limited accomplishments and the triumph of Trumpism.

"America’s Durable Monstrosity: New figures show that the US prison population has dropped. But mass incarceration remains firmly intact." by Daniel Denvir

A ray of sunshine recently poked through the otherwise gloomy holiday headlines: “US prison population falling as crime rates stay low.”  The prison population has indeed fallen, and crime rates are still down.  But while the crime that politicians exploited to create mass incarceration has plummeted, the number of prisoners locked up in the name of public safety has only budged.

Mass incarceration, in short, remains a durable monstrosity.

As of 2015, an estimated 2,173,800 Americans were behind bars — 1,526,800 in prison and 728,200 in jails — according to recently released data from the Bureau of Justice Statistics.  That’s 16,400 fewer people in jail and 35,500 fewer prisoners than in 2014 — a 2.3 percent decline and, for prisoners, the largest single-year drop since 1978. The 2015 figure also marks the lowest overall prison population since 2005. Crime rates have plunged, falling “to levels not seen since the late 1960s.”

But even as the US becomes a much safer country, it still incarcerates its citizens at much higher rates than most any other on earth.  To put things in perspective, our prison archipelago today confines a population similar in size to the city of Houston or the borough of Queens.

At the dawn of mass incarceration in 1980, the US’s already-quite-large prison population was estimated at 329,821. To return to that number, the governments would have to replicate the recent 35,500-prisoner reduction for roughly thirty-four years in a row.  That’s a very long time to wait for the poor communities — particularly but not exclusively brown and black ones — that mass incarceration devastates.

The criminal justice reform movement has stopped losing. But it hasn’t really started to win.

January 11, 2017 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Tuesday, January 10, 2017

Charleston Church shooter Dylann Roof sentencing to death by federal jury

As reported in this local article, only "a few hours after he told a crowded courtroom 'I still feel like I had to do it,' a federal jury sentenced Dylann Roof to death for carrying out a cold, calculated massacre inside Charleston's Emanuel AME Church in a bid to spark a race war." Here is more about an unsurprising verdict:

The 12-member panel – three white jurors, nine black – deliberated for a little less than three hours before unanimously deciding that the 22-year-old white supremacist should die for his crimes rather than spend his life in prison without the possibility of parole.

It will be up to the presiding judge to formally impose that sentence, but he is bound by law to follow the jury’s decision. U.S. District Judge Richard Gergel has scheduled the formal sentencing hearing for 9:30 a.m. Wednesday.

Roof, who sat stone-faced and silent through most of his hate crimes trial, betrayed no emotion as the jury’s verdict was read. During his closing argument earlier in the day, he passed on the chance to argue for his life, saying “I’m not sure what good that will do anyway.”

After the jury announced its verdict, Roof stood and asked the judge if he would appoint him new lawyers to help him file a request for a new trial. Gergel told Roof a significant amount has been spent on the current legal team that Roof sidelined for the trial's penalty phase, a team led by noted capital defense lawyer David Bruck. The judge said he would be "strongly disinclined" to bring in new lawyers at this point, but he will listen to any motions Roof wants to make during Wednesday's proceedings.

Earlier in the day, Roof told the jury that prosecutors don't understand him or the meaning of hate in their quest to put him to death for the June 2015 church massacre. “Anyone, including the prosecution, who thinks I am filled with hate has no idea what real hate is,” Roof said, speaking to jurors from a podium about eight feet away from the jury box. “They don’t know anything about hate."

After Assistant U.S. Attorney Jay Richardson delivered a two-hour closing statement, Roof walked to the podium with a single sheet of yellow notebook paper. He appeared to read from it, pausing at times to glance down. His remarks lasted less than five minutes.

January 10, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (11)

Interesting new report on impact of Prop 47 on drug arrests in California

Via email I received notice of this notable new research report, titled "Declinining Drug Enforcement After Proposition 47," coming from the Center on Juvenile and Criminal Justice and the Drug Policy Alliance. This executive summary provides the report's highlights:

In November 2014, California took a significant step toward reforming mass criminalization and over-incarceration by passing Proposition 47, a law that changed certain low-level crimes from potential felonies to misdemeanors, prioritizing drug treatment over punishment. Prop 47 reclassified three drug possession offenses (possession of a narcotic, concentrated cannabis, or a non-narcotic) and reinvested state savings in direct services. In 2015, the first full year after Prop 47, felony drug arrests fell by over 92,000 while misdemeanor drug arrests increased by only 70,000. Taken together, these shifts produced a 10 percent decline in total drug arrests.

In response to Prop 47’s reclassification statute, some law enforcement departments began redirecting drug enforcement resources to community policing or the enforcement of other, more serious, offenses. Critics of the policy, however, claim that it limits police authority and constrains the effectiveness of drug control, a contention that has led some law enforcement agencies to deemphasize the enforcement of Proposition 47-related offenses.

This report seeks to understand how enforcement and prosecution of drug possession offenses have changed after Prop 47 by analyzing arrests and citations made by Los Angeles and San Diego law enforcement, and charges filed by county prosecutors. Some of the findings include:

Prop 47 reduced inconsistencies in the classification of drug possession offenses as felonies or misdemeanors.  Prior to Prop 47, qualifying drug possession offenses could be prosecuted as misdemeanors, felonies, or “wobblers.” After the passage of Prop 47, these offenses are filed as misdemeanors, eliminating prosecutorial discretion and the presence of “justice-by-geography,” which can disproportionately impact low income communities and communities of color.

Drug arrests and citations were increasing in the years immediately preceding Prop 47.  From 2010-2014, arrests and citations for Prop 47 drug possession offenses increased in 72 percent of law enforcement agencies in Los Angeles and San Diego counties. Between 2014-2015, 58 percent of agencies reported declines.

Arrests and citations declined after Prop 47, but varied by county, city, and substance.  For example, while both San Diego and Los Angeles counties experienced declines in arrests and citations, Los Angles reported a decrease of 45 percent while San Diego reported 7 percent decline.

January 10, 2017 in Data on sentencing, Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

AG-nominee Jeff Sessions puts focus on crime in opening statement before confirmation hearing

Via Politico, here is the text of Attorney General nominee Jeff Sessions' full opening statement to the Senate Judiciary Committee, as prepared for delivery.  And here are some excerpts that highlight its crime-fighting tone, as well as some of the effort to thwart certain criticisms already lodged against the nomination:

Protecting the people of this country from crime, and especially from violent crime, is the high calling of the men and women of the Department of Justice. Today, I am afraid, that has become more important than ever.

Since the early 1980s, good policing and prosecutions have been a strong force in reducing crime. Drug use and murders are half what they were in 1980. I am very concerned, however, that the recent jump in the violent crime and murder rates are not anomalies, but the beginning of a dangerous trend that could reverse the hard won gains that have made America a safer and more prosperous place. The latest official FBI statistics show that all crime increased nearly 4 percent from 2014 to 2015 with murders increasing nearly 11 percent — the largest single year increase since 1971. In 2016, there were 4,368 shooting victims in Chicago. In Baltimore, homicides reached the second highest per-capita rate ever.

The country is also in the throes of a heroin epidemic, with overdose deaths more than tripling between 2010 and 2014. Meanwhile, illegal drugs flood across our southern border and into every city and town in the country, bringing violence, addiction, and misery.

We must not lose perspective when discussing these statistics. We must always remember that these crimes are being committed against real people, real victims. It is important that they are kept in the forefront of our minds in these conversations, and to ensure that their rights are always protected.

These trends cannot continue. It is a fundamental civil right to be safe in your home and your community. If I am confirmed, we will systematically prosecute criminals who use guns in committing crimes. As United States Attorney, my office was a national leader in gun prosecutions every year. We will partner with state and local law enforcement to take down drug trafficking cartels and dismantle gangs. We will prosecute those who repeatedly violate our borders. It will be my priority to confront these crises vigorously, effectively, and immediately.

Approximately 90 percent of all law enforcement officers are not federal, but local and state. They are the ones on the front lines. They are better educated, trained and equipped than ever before. They are the ones who we rely on to keep our neighborhoods, and playgrounds, and schools safe. But in the last several years, law enforcement as a whole has been unfairly maligned and blamed for the actions of a few bad actors and for allegations about police that were not true. They believe the political leadership of this country abandoned them. They felt they had become targets. Morale has suffered. And last year, while under intense public criticism, the number of police officers killed in the line of duty increased ten percent over 2015. This is a wake up call. This must not continue.

If we are to be more effective in dealing with rising crime, we will have to rely heavily on local law enforcement to lead the way. To do that, they must know that they are supported. If I am so fortunate as to be confirmed as Attorney General, they can be assured that they will have my support.

As I discussed with many of you in our meetings prior to this hearing, the federal government has an important role to play in this area. We must use the research and expertise of the Department of Justice to help them in developing the most effective and lawful enforcement methods to reduce crime. We must re-establish and strengthen the partnership between federal and local officers to enhance a common and unified effort to reverse the current rising crime trends. I did this as United States Attorney. I worked directly and continuously with state and local law enforcement officials. If confirmed, it will be one of my primary objectives....

In recent years, our law enforcement officers also have been called upon to protect our country from the rising threat of terrorism that has reached our shores. If I am confirmed, protecting the American people from the scourge of radical Islamic terrorism will continue to be a top priority of the Department of Justice. We will work diligently to respond to threats, using all lawful means to keep the American people safe from our nation’s enemies. Partnerships will also be vital to achieving much more effective enforcement against cyber threats, and the Department of Justice clearly has a lead role to play in that essential effort. We must honestly assess our vulnerabilities and have a clear plan for defense, as well as offense, when it comes to America’s cybersecurity.

The Department of Justice must never falter in its obligation to protect the civil rights of every American, particularly those who are most vulnerable. A special priority for me in this regard will be aggressive enforcement of our laws to ensure access to the ballot for every eligible American voter, without hindrance or discrimination, and to ensure the integrity of the electoral process....

You can be absolutely sure that I understand the immense responsibility I would have. I am not naïve. I know the threat that our rising crime and addiction rates pose to the health and safety of our country. I know the threat of terrorism. I deeply understand the history of civil rights and the horrendous impact that relentless and systemic discrimination and the denial of voting rights has had on our African-American brothers and sisters. I have witnessed it. I understand the demands for justice and fairness made by the LGBT community. I understand the lifelong scars born by women who are victims of assault and abuse.

A few prior related posts on AG-nominee Sessions:

January 10, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (7)

"Want to fix gun violence in America? Go local."

The title of this post is the headline of this new Guardian special report that does an impressive job mapping and unpacking the locales of gun violence throughout the United States.   Here is how it gets started:

The map of America’s gun violence epidemic can seem overwhelming.  There were more than 13,000 gun homicides in the US in 2015, across nearly 3,500 cities and towns.  But the toll of this gun violence was not distributed equally.

Half of America's gun homicides in 2015 were clustered in just 127 cities and towns, according to a new geographic analysis by the Guardian, even though they contain less than a quarter of the nation’s population.

Even within those cities, violence is further concentrated in the tiny neighborhood areas that saw two or more gun homicide incidents in a single year.

Four and a half million Americans live in areas of these cities with the highest numbers of gun homicide, which are marked by intense poverty, low levels of education, and racial segregation.  Geographically, these neighborhood areas are small: a total of about 1,200 neighborhood census tracts, which, laid side by side, would fit into an area just 42 miles wide by 42 miles long.

The problem they face is devastating. Though these neighborhood areas contain just 1.5% of the country’s population, they saw 26% of America’s total gun homicides.

Gun control advocates say it is unacceptable that Americans overall are "25 times more likely to be murdered with a gun than people in other developed countries". People who live in these neighborhood areas face an average gun homicide rate about 400 times higher than the rate across those high-income countries.

Understanding this dramatic clustering of America’s of gun violence is crucial for the effort to save more lives. “We can’t do much about crime prevention of homicide if we try to attack it as a broad, global problem, throwing money at it in a sort of broad, global way,” said David Weisburd, a leading researcher on the geographic distribution of crime at George Mason University.

America’s gun policy debate is usually driven by high-profile mass shootings that seem to strike at random, and it focuses on sweeping federal gun control or mental health policies. But much of America’s gun homicide problem happens in a relatively small number of predictable places, often driven by predictable groups of high-risk people, and its burden is anything but random.

The concentration of gun homicides in certain census tracts mirrors what criminologists have discovered when they look at crime patterns within individual cities: roughly 1.5% of street segments in cities see about 25% of crime incidents, a trend dubbed “the law of crime concentration”.

January 10, 2017 in Gun policy and sentencing, National and State Crime Data | Permalink | Comments (5)

Monday, January 9, 2017

FBI stats for first half of 2016 show increases in "all of the offenses in the violent crime category"

This new FBI press release, titled simply "FBI Releases Preliminary Semiannual Crime Statistics for 2016," provides sober news about violent crime in the United States during the first part of 2016.  Here are the top-line particulars:

Statistics released today in the FBI’s Preliminary Semiannual Uniform Crime Report revealed overall increases in the number of violent crimes reported and overall declines in the number of property crimes reported for the first six months of 2016 when compared with figures for the first six months of 2015. The report is based on information from 13,366 law enforcement agencies that submitted three to six months of comparable data to the FBI’s Uniform Crime Reporting (UCR) Program for the first six months of 2015 and 2016.

Violent Crime

◾ All of the offenses in the violent crime category—murder and non-negligent manslaughter, rape (revised definition), rape (legacy definition), aggravated assault, and robbery—showed increases when data from the first six months of 2016 were compared with data from the first six months of 2015. The number of aggravated assaults increased 6.5 percent, murders increased 5.2 percent, rapes (legacy definition) increased 4.4 percent, rapes (revised definition) rose 3.5 percent, and robbery offenses were up 3.2 percent.

◾ Violent crime increased in all city groupings. Among cities, violent crime rose the most over the previous year (9.7 percent) in those with populations of 1,000,000 and over. In cities with populations from 500,000 to 999,999, violent crime increased 5.2 percent, and in cities with 250,000 to 499,999 inhabitants, violent crime was up 4.3 percent.

◾ Violent crime increased 6.3 percent in metropolitan counties and rose 1.6 percent in nonmetropolitan counties.

◾ Violent crime increased in all four regions of the nation. These crimes were up 6.4 percent in the West, 5.9 percent in both the Midwest and in the South, and 1.2 percent in the Northeast.

Property Crime

◾ In the property crime category, offenses dropped 0.6 percent. Burglaries were down 3.4 percent, and larceny-thefts declined 0.8 percent. However, motor vehicle thefts increased 6.6 percent.

◾ Among the city population groups, there were both increases and decreases in the overall number of property crimes. Law enforcement agencies in cities with 1,000,000 and over populations reported the largest increase, 2.1 percent. Law enforcement agencies in cities with populations under 10,000 inhabitants reported the largest decrease, 3.5 percent.

◾ Property crime decreased 3.9 percent in nonmetropolitan counties and 1.5 percent in metropolitan counties.

◾ The West was the only region to show an increase (0.8 percent) in property crime. Reports of these offenses declined 2.4 percent in the Northeast, 1.3 percent in the Midwest, and 0.9 percent in the South.

There are many ways to mine and to spin these new FBI crime data (which can and should be understood even better in light of this FBI data on yearly changes over the last five years). But the simple headline and simple story is that violent crime increased somewhat significantly nationwide in the first half of 2016, especially in larger cities.  And the simple consequence may be, as hearings for the next Attorney General are about to get started, that talk of major federal sentencing reforms may take a back seat to talk of new federal crime fighting measures.

January 9, 2017 in Criminal justice in the Trump Administration, National and State Crime Data | Permalink | Comments (3)

"In the Mold of Scalia or Alito: Recent Criminal and Habeas Decisions of Judges Pryor and Sykes"

The title of this post is the title of this new and timely short piece authored by Scott Meisler now available via SSRN that ought to be of special interest to sentencing fans.  Here is the abstract:

Recent press reports indicate that federal appellate judges William Pryor and Diane Sykes are among the finalists for the Supreme Court vacancy created by Justice Scalia’s death. But just as Justice Scalia and fellow conservative Justice Alito often differed on questions of criminal and habeas corpus procedure, so too have Judges Pryor and Sykes.  This short essay analyzes four legal issues on which the two judges have recently reached contrary results or demonstrated different approaches — including two legal issues arising from Justice Scalia’s last major criminal procedure opinion, Johnson v. United States.  The essay concludes that, though the decisions analyzed here represent only a small sample, they suggest that Judge Sykes’s approach to criminal procedure questions would more closely resemble Justice Scalia’s, while Judge Pryor’s would be more similar to that of Justice Alito.

January 9, 2017 in Criminal justice in the Trump Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (4)

SCOTUS issues per curiam opinion strengthening claim of qualified immunity after police shootout

The Supreme Court's first big order list of 2017 had no cert grants, which I think provides still more evidence that the Justices are disinclined to take up much of note until they get a replacement for Justice Scalia.  But the court found one case they could resolve through a summary opinion, White v. Pauly, No. 16–67 (S. Ct. Jan. 9, 2017) (available here). In this case, the Supreme Court vacating a split Tenth Circuit ruling that had denied qualified immunity to a New Mexico police officer after deadly shooting during a confrontation with armed suspects. Here is how the opinion starts and a key passage:

This case addresses the situation of an officer who — having arrived late at an ongoing police action and having witnessed shots being fired by one of several individuals in a house surrounded by other officers — shoots and kills an armed occupant of the house without first giving a warning....

This is not a case where it is obvious that there was a violation of clearly established law under Garner and Graham. Of note, the majority did not conclude that White’s conduct — such as his failure to shout a warning — constituted a run-of-the-mill Fourth Amendment violation. Indeed, it recognized that “this case presents a unique set of facts and circumstances” in light of White’s late arrival on the scene.  814 F.3d, at 1077.  This alone should have been an important indication to the majority that White’s conduct did not violate a “clearly established” right.  Clearly established federal law does not prohibit a reasonable officer who arrives late to an ongoing police action in circumstances like this from assuming that proper procedures, such as officer identification, have already been followed.  No settled Fourth Amendment principle requires that officer to second-guess the earlier steps already taken by his or her fellow officers in instances like the one White confronted here.

Th per curiam opinion closes with a lot of nuance as to what the Justices were not deciding, and a concurring opinion by Justice Ginsburg highlights that point.

January 9, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Will new Trump Justice Department seek death penalty for Fort Lauderdale airport mass murderer given apparent mental illness?

The question in the title of this post emerges from the news of federal charges filed and a planned court appearance for Esteban Santiago.  This Reuters article, headlined "Florida airport shooting suspect due in court Monday, could face death penalty," provides the details:

The 26-year-old Iraq war veteran accused of killing five people at a busy Florida airport in the latest U.S. gun rampage was due to appear in a federal court on Monday on charges that could bring him the death penalty.

Esteban Santiago, who had a history of erratic behavior, has admitted to investigators that he planned Friday's attack in Fort Lauderdale and bought a one-way ticket from his home in Alaska to carry it out, according to a criminal complaint.

Authorities say they have not ruled out terrorism as a motive and that they are investigating whether mental illness played a role.  In November, Santiago went to a Federal Bureau of Investigation office in Anchorage and told agents he believed U.S. spies were controlling his mind.

Bond for Santiago, who is being held at the Broward County Jail in Fort Lauderdale, may be set at the hearing scheduled for 11 a.m. EST on Monday near Fort Lauderdale, and he would be assigned a public defender if he cannot afford his own lawyer.  He could face the death penalty if convicted on charges of carrying out violence at an airport, using a firearm during a violent act, and killing with a firearm.  But it may be months before prosecutors reveal what lies in Santiago's future.

"They've then got two weeks to indict him, and then they've got to go through the whole death penalty review," said former federal prosecutor David Weinstein, who is now a partner with Miami law firm Clarke Silverglate.  Executions have been on hold in Florida since the U.S. Supreme Court struck down the state's death penalty laws a year ago.  The Florida Supreme Court overturned a rewritten version in October....

Information surfaced over the weekend that police in Alaska took a handgun from Santiago in November after he told FBI agents there his mind was being controlled by a U.S. intelligence agency.  They returned it to him about a month later after a medical evaluation found he was not mentally ill....

Santiago served from 2007 to 2016 in the Puerto Rico and Alaska national guards, including a deployment to Iraq from 2010 to 2011, according to the Pentagon. Relatives have said he acted erratically since returning from Iraq.

The on-going federal capital trial of the Charleston church mass murderer Dylann Roof has prompted a number of folks, especially those in the abolitionist community, to be talking about mental illness and the inappropriateness of sentencing a mentally disturbed individual to death.  Those discussions and debates would surely reach another level if (dare I say when) the incoming Trump Administration and its new Attorney General decide to pursue capital charges against Esteban Santiago.

January 9, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Sunday, January 8, 2017

SCOTUS back in action with booking fee process as first notable criminal case of 2017

The Supreme Court returns to action tomorrow morning, and the Court's January sitting only has a couple cases that should be of serious interest to criminal justice fans.  But the very first case slated for the very first 2017 oral argument is one of procedural note, Nelson v. Colorado.  The folks over at SCOTUSblog have provided this preview by Steve Vladeck, which starts and ends this way:

Every jurisdiction in the United States requires at least some criminal defendants to make certain payments to the government tied to their convictions.  And if a defendant’s conviction is subsequently vacated — whether on appeal or through collateral post-conviction proceedings — virtually every jurisdiction directly returns those funds to the acquitted individual.  Colorado does not.  Instead, according to the Colorado Supreme Court, criminal defendants seeking a return of funds paid in conjunction with a later-vacated conviction must bring a separate civil suit under a Colorado statute — the Exoneration Act — in which, among other burdens, plaintiffs apparently have to prove their actual innocence by clear and convincing evidence in order to recover.  The very first argument the justices will hear in 2017 — Nelson v. Colorado — raises the question whether this seemingly unique scheme violates the due process clause of the 14th Amendment....

Although it is often difficult to predict from an oral argument how the justices are likely to rule, the sharp distinctions in how the parties have framed the issue in this case may allow for more than the usual tea-leaf reading at next Monday’s argument.  The more the questioning focuses on distinctions between the different types of payments made by Nelson and Madden, and the state’s interest in collecting and preserving those funds, the more it may bode well for Colorado.  But the more the justices’ attention appears drawn to how poor a fit the Exoneration Act actually is for defendants like these, the more likely the court will be to reverse.  After all, as Nelson and Madden conclude in their reply brief, Colorado appears to be the first and only jurisdiction in the United States “to require successful appellants to prove their innocence by any standard to get their money back when their convictions are reversed.”  If that fact seems to trouble enough of the justices during their first argument of the new year, then a reversal may well be in the offing.

January 8, 2017 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Why I think at the hearings for AG, Senators should try to kill... question with conservative kindness

Sessions_Attorney_General_59616.jpg-7a740-3355This new Washington Post article, headlined "Jeff Sessions should have been a tough sell in the Senate, but he’s too nice," details some reasons behind my thinking that it is unwise for advocates of criminal justice reform to adopt an overly aggressive opposition posture to Prez-Elect Donald Trump's nominee for Attorney General, Senator Jeff Sessions.  Here are excerpts from the piece, with a few lines emphasized for commentary to follow:

He is one of the more well-liked members of the Senate, a place that still retains elements of one of the world’s most exclusive clubs.  He is genial, respectful and patient toward colleagues and staff.  And that has given fellow Republicans and even some Democrats reason not to scrutinize the more unsavory allegations of his political history.

Take Sen. Susan Collins, a moderate Republican from Maine who, under other circumstances, might be a target for Democrats to peel off in hopes of defeating Sessions’s nomination. Instead, she’s his lead spokeswoman....  “He’s a decent individual with a strong commitment to the rule of law.  He’s a leader of integrity,” Collins said in an interview, dismissing attacks from liberal activists about his conservative views and his actions as a young prosecutor. “I think the attacks against him are not well-founded and are unfair.”...

“I genuinely like him,” said Sen. Christopher A. Coons (D-Del.), a member of the Judiciary Committee.  Coons still might vote against Sessions because of the “stark differences” between the two on policy, but they are friends....

[M]ost senators tend to see Sessions in the same way Collins does — as a friendly man who never broke his word to them.  Many have prayed with him and traveled with him on official overseas trips.  Almost no one wants to review the original allegations against him during his 1986 nomination; for the most part, they don’t think that he is the racist that some have painted — at least not anymore.  “I don’t know the dynamics of what happened then, but I can speak to Jeff’s character in the 20 years that I’ve known him,” Collins said....

One senator who has wanted to focus more on Sessions’s past on race is Sen. Tim Scott (R-S.C.), the chamber’s only black Republican. “I think judging a person on 30-year-old history is questionable. Eliminating or exempting 30-year-old history is probably not wise as well,” Scott said. “So, making sure that you understand what it actually was and who he is, has been an important part of what I’ve tried to do.”

Scott hosted Sessions in mid-December in North Charleston with activists who peppered him with questions about federal prosecution of a police officer who fatally shot a black man in the back. “The attorney general’s position has more impact on communities of color than perhaps any other nominee,” Scott said, adding that he was still considering the nomination.

By and large, senators want to focus on other topics. And there’s plenty there to discuss, from how Sessions would handle the deportation of illegal immigrants to allegations that in 1995, while serving as state attorney general, he supported the use of chain gangs for prisoner work.

Coons suggested that Sessions had so many staunchly conservative positions in “the recent past” that there was little need to relitigate the 1980s. He spent an hour with Sessions on Thursday talking about legal philosophy. Coons and Sessions have spent the past six years talking at the Senate’s weekly Bible study and working out together in the gym.

The lines I have stressed here highlights my belief that everyone interested in criminal justice reform ought to be looking toward the Sessions' hearing as a high-profile opportunity to make in a high-profile and high-impact way the strong conservative case for criminal justice reform (and especially federal sentencing reform).  Particularly because it seems all but certain that Sessions will be confirmed as Attorney General, I hope that some folks inclined to oppose Sessions appreciate that it could be much more productive at this week's hearings to try to co-opt Sessions from the right rather than attack him from the left.

For the record, and as highlighted by this recent helpful Brennan Center analysis, I fully understand how Senator Sessions' record in the criminal justice arena makes so many advocates so concerned and so eager to fight.  But these advocates should remember that, in just the past few years, a number of tough-on-crime GOP stalwarts like Senator Charles Grassley and Representative Jim Sensenbrenner have become vocal advocates for federal sentencing reform.  Indeed, a large number of prominent GOP Senators on and off the Judiciary Committee have been vocal supporters of federal sentencing reform in some form — I am thinking here of Senator Cornyn, Cruz, Lee, Paul and Tillis among others — and these folks seem to view (rightly, in my opinion) sentencing reform as conservative cause.

Of particular importance in this context, especially given the passages stressed above, are what I might call the "equal justice" and "religious redemption" arguments for federal reforms. As noted in this prior post, Senator Sessions was an early and prominent voice calling for a reduction in the crack/powder 100-1 federal sentencing disparity. This suggests Sessions might in a hearing voice support for sentencing reforms intended to reduce unequal application of the harshest mandatory minimum sentencing terms. And all the references to prayer above leads me to think Sessions also could and would be moved by religious leaders talking about the importance of second chances (which, I surmise, help moved Senator Grassley and also fits with the huge and too-often-overlooked corrections part of the SRCA).

Even more fundamentally, though Senator Sessions has roots and a history supporting a big and tough federal criminal justice apparatus, lots of his GOP colleagues are very skeptical of federal prosecutorial powers, and for good reason.  Notably, Senator Sessions has himself expressed concerns on the Senate floor about federal prosecutors "encroach[ing] upon the historic powers of our State and local law enforcement to enforce the law in their jurisdiction."  Especially in the arena of marijuana reform and perhaps business crimes more generally, I also think Sessions could and should be questioned about the conservative case for keeping the federal Justice Department out of what are generally local matters.

In the end, this all may be wishful thinking on my part, a desire to turn a glass more than half-empty upside-down so that it looks close to half full. But given all the remarkable and important criminal justice reform work done and supported robustly in recent years by self-described conservatives, I am strongly disinclined to view Senator Sessions as a Darth-Vader-like character until he actually starts ordering the Justice Department to begin work on a Death Star.

A few prior related posts on the AG-nominee Sessions:

January 8, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (5)

"Mending the Federal Sentencing Guidelines Approach to Consideration of Juvenile Status"

The title of this post is the title of this notable new Harvard Law Review note. It gets started this way:

In a series of recent cases, the Supreme Court has reaffirmed the profound significance of a juvenile offender’s age in sentencing, seemingly rendering youth status a mandatory sentencing consideration as a constitutional matter — in at least some cases — and under the statutory sentencing directive.  Still, as a matter of policy, the Federal Sentencing Guidelines (Guidelines) — the required starting point for sentencing courts in federal cases and the benchmark for assessing the reasonableness of a sentence for appellate courts — discourage consideration of an offender’s youth and related circumstances in determining whether to depart from the recommended statutory sentencing range.  Though after United States v. Booker the Guidelines have been advisory only, the Court has recognized that even advisory Guidelines can, at times, exert an impermissible anchoring effect on sentencing courts.

This Note argues that Congress and the United States Sentencing Commission (Commission) should take seriously both the letter and spirit of the Court’s recent juveniles-are-different cases, which favor a return to a rehabilitative approach to young offenders.  Congress should address apparent conflicts between its statutory sentencing schemes and these recent cases by expanding the range of sentencing options for juvenile offenders convicted in federal court, and the Commission should promulgate new rules regarding calculation of sentences for juveniles convicted as adults in federal court.  Further, until such rules are promulgated, this Note contends that appellate courts should hesitate to presume reasonable within-Guideline sentences for juvenile offenders absent evidence that a sentencing court has considered age.

This Note proceeds in four parts.  Part I provides a brief history of the Guidelines, from development through the Court’s attempts to clarify their place post Booker. Part II describes the history of the treatment of juvenile offenders in federal courts and details the Court’s recent juveniles-are-different sentencing jurisprudence.  Part III argues that, for various reasons of law and policy, both Congress and the Commission should offer new guidance on how courts should approach the process of sentencing juvenile offenders convicted as adults.  Finally, Part IV recommends statutory changes and amendments to the Guidelines.

January 8, 2017 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Friday, January 6, 2017

Seventh Circuit panel affirms above-guideline drug sentence ... with Judge Posner suggesting USSC involvement would be better than a sentencing "hunch"

An otherwise little and unremarkable sentencing appeal became blog-worthy because of Judge Posner's provocative opinion for the court in US v. Gibbs, No. 16-1747 (7th Cir. Jan. 6, 2017) (available here). Here is some background and the blog-notable aspect of Judge Posner's opinion:

The defendant pleaded guilty to possessing cocaine with intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). Because of the quantity of the cocaine that he possessed and his history of drug and other criminal offenses, his guideline sentencing range was 151 to 188 months and his statutory maximum 240 months. The government recommended a 216‐month sentence ... and that was the sentence that the district judge imposed....

The judge explained that he was imposing a sentence significantly higher than the top of the defendant’s guideline range on the basis of the “[18 U.S.C. §] 3553(a) [sentencing] factors.”  He called the defendant “a poster child for being a career offender,” and told him “unfortunately you may be one of those people that will never be able to conform to be a law‐abiding person.”....

Neither the government, in recommending a 216‐month sentence, nor the district judge, in imposing it, attempted a sophisticated analysis of the likely consequences for the defendant, his family, and society (primarily the persons to whom he sold illegal drugs) of adding roughly two years to the sentence he would have been given had the judge stopped at the top of the guideline range.  Judging from the government’s brief and the judge’s sentencing statement, both the prosecution and the judge based the 216‐month sentence (proposed by the government, imposed by the judge) on a hunch.  As the prosecutors as well as the judge are highly experienced, their hunches are likely often to be reliable. And because federal prosecutors are free to suggest any sentence within the statutory range, and a federal district judge has broad latitude in picking the sentence to impose within that range, and because the briefs and argument of defense counsel in this case bordered on the perfunctory ... the sentence must be affirmed.

Some consideration, however, should be given to the possibility of basing a prison sentence — at least a very long one (and an 18‐year sentence is very long) — on something other than a hunch.  The work of the U.S. Sentencing Commission in formulating sentencing guidelines provides a clue to a possible alternative. The sentencing judge, instead of ranging at large, with little guidance, over the wide space between the statutory minimum sentence for the defendant’s crime or crimes and the statutory maximum, might consider asking the Sentencing Commission to evaluate the appropriateness in particular cases of all the possible sentencing points in the statutory sentencing range, including points that fall outside the guideline sentencing range.  In a case like the present one the Sentencing Commission might advise the prosecutors, defense counsel, and the judge why it had fixed the guideline range where it did and how disapproving it would be of sentences below or above that range.  The Commission might for example take a close look at the government’s suggested 216‐month sentence in this case and the arguments the government gives for it, and conclude that maybe it’s a proper sentence given the particular facts of the case even though it lies outside the guideline range.  The defense proposed a sentence of only 10 years, which would be about two and a half years below the sentencing guideline; and again, the Commission might agree in the special circumstances of this case that that was a plausible alternative to a sentence in the guideline range — or might explain why it was not.  Judges wouldn’t have to ask the Commission for its input, or follow its recommendations, but they might find it a valuable resource.

The Judge Posner's opinion nominally represents the opinion of the Seventh Circuit, the other two judges on the panel (Judges Kanne and Sykes) wrote separate concurring opinions (and Judge Sykes opinion is only concurring in the judgment). Judge Kanne does join Judge Posner's opinion, but his separate opinion captures some aspects of my reactions to what Judge Posner suggests:

I write further to add that although Judge Posner has envisioned an interesting method to arrive at an appropriate sentence in individual cases, it is my view that such a unique system would be fundamentally unworkable in practice and contrary to the statutory provisions enacted by Congress and approved by the Supreme Court.

January 6, 2017 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7)

An optimistic accounting of many areas for bipartisan federal criminal justice reform ... and good lines of inquiry for AG nominee Jeff Sessions

The week brought this extended commentary by Mark Holden at The Hill under the headline "Criminal justice reform is ripe for bipartisan achievement." I recommend the piece in full, and here are highlights of the reforms urged (with Holden's accounting of "reason it could pass" left out so readers will be encouraged to click through):

Criminal justice reform has been one of the few policy areas where Republicans and Democrats have forged bipartisan consensus.  They have come close to passing reform the past two years, and now it’s up to GOP lawmakers to pick up where they left off. Leaders as diverse as Sens. Cory Booker (D-N.J.) and Mike Lee (R-Utah) agree that the current system is broken....

That’s why it’s critical that leaders in Congress take up criminal justice reform. If they focus on six key areas of reform, there’s a real possibility that legislation could pass in both the House and Senate, even with the Senate’s 60-vote threshold, a bar not easily achieved on other issues.

Here are the six areas of reform — and the reasons they have a viable path to becoming law.

First, we need to reform the grand jury process and rein in prosecutorial overreach. As Judge Kozinski has advocated, lawmakers should require open file discovery, so prosecutors hand over all evidence favorable to an accused person, and also establish truly independent prosecutorial review units to investigate abuses....

Second, we must protect every citizens’ Sixth Amendment rights.  When it comes to federal cases, Congress should ensure that all individuals — regardless of income level – have an adequate chance to retain counsel before they appear in court.  It should also explore the model that some states have moved to, which allows defendants to choose a private lawyer from a list of options, rather than being appointed a lawyer who may not offer a competent defense....

Third, the punishment must fit the crime. Congress should reform mandatory minimums that don’t make sense and increase the use of “safety valves,” which allow judges to use their discretion for non-violent offenses if the offender meets certain requirements. These reforms are particularly important for low-level and non-violent offenders (mostly involving drug crimes), who too often languish in prison for years or even decades at a time at great cost to their families and our society at large.....

Fourth, prisons should leave individuals better off than when they came in. Prison rehabilitation programs have proven to reduce the chance of re-offense and save taxpayer dollars....

Fifth, Congress should give worthy individuals a chance to rejoin society and find fulfillment in their lives.  Lawmakers could start by “banning the box” from federal employment applications so that individuals with a record can be considered for government jobs.  Congress, however, should not mandate that companies “ban the box,” but should allow them to voluntarily do so.  Congress should also clear the record of qualifying youth and non-violent federal offenders; limit solitary confinement for juveniles; and establish effective rehab, educational, and vocational programs so that every individual leaves prison a better person than when they came....

Finally, Congress needs to dramatically scale back the federal criminal code and ensure that all criminal laws have adequate criminal intent, also known as “mens rea.”  The criminal code is a stunning 27,000 pages and comprises an estimated 4,500-6,000 criminal laws — and that doesn’t even include the thousands of additional federal regulations that impose criminal punishments. Many penalize people who had no idea they were committing a crime — missing a basic historical requirement that once existed in the criminal law to protect people from being unfairly prosecuted....

Any one of these reforms would improve our federal justice system — and have a profound effect on our society.  Taken together, they will make communities safer, support our brave law enforcement officers, save taxpayer dollars, and empower individuals in need of a second chance.  That’s precisely why Republicans and Democrats alike will have a difficult time answering to their constituents if they resist such reforms.  Doing so would be a clear political move that overlooks the millions of Americans who would be better off as a result of this bipartisan achievement.

If President-elect Trump and the GOP Congress take up criminal justice reform, it will be a sure sign that they are willing to look beyond party lines in order to improve people’s lives.  That would be good start to putting individuals’ safety and wellbeing ahead of partisan politics.

As the title of this post suggests, I think this piece's accounting of six areas in need of reform would provide a fantastic guide for questions for Senator Jeff Sessions during his hearings to serve as Attorney General. These questions can be softball (e.g., do you believe prison rehabilitation programs can be valuable?) or tough (e.g., do you think there should be more means for federal inmates to earn sentence reduction for participating in prison rehabilitation programs). And I welcome readers to use the comment to make more suggestions for additional soft or tough questions on these or other fronts.

Critically, and as I hope to outline more fully in a post over the weekend, I feel very strongly that those Senators who support federal criminal justice reforms ought to use the Sessions' confirmation hearing to do much more that just simply attack the Senator for long-ago acts or statements claimed to be evidence of racism or insensitivity.  Instead, by crafting astute questions concerning specific area of the federal criminal justice system in need of reform, members of the Judiciary Committee could and should be able to get Sessions to express support for — or at least a lack of opposition to — many of the bipartisan reforms discussed above and widely embraced inside the Beltway in recent years.

January 6, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (2)

"Facing the Firing Squad"

The title of this post is the title of this notable new piece by Andrew Jensen Kerr available via the Georgetown Law Journal website. Here is the abstract:

The recent Supreme Court decision in Glossip v. Gross affirmed the legality of midazolam for use in lethal injection.  The 5–4 majority opinion reads the Constitution to require an available form of execution.  But it does little to counter Professor Denno’s claim in “Lethal Injection Chaos Post-Baze” that pragmatic supply-side concerns should dismantle the economy for lethal injection.  Off-brand substitutes for lethal injection drugs have led to recent high-profile botches.  Both Utah and Wyoming have proposed a return to the firing squad.  Lethal injection is comparatively sanitary and bureaucratic.  But I respond that the firing squad is more coherent with death penalty administration heuristic concerns of retribution and dignity.  The visibility of the firing squad also serves an abolitionist, information-forcing function by requiring a candid look at death penalty process from the perspective of the executed.

January 6, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Purposes of Punishment and Sentencing | Permalink | Comments (6)

Thursday, January 5, 2017

Marijuana reform and clemency conversations at the state and federal level

Two new lengthy pieces combining news and commentary on the clemency and marijuana fronts further reinforces my view that marijuana reform is a form of sentencing reform.  Here are the extended headlines and links to these two interesting reads:

January 5, 2017 in Clemency and Pardons, Marijuana Legalization in the States, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Lamenting big criminal justice problems in the little state of Delaware

This new local commentary from Delaware authored by Jack Guerin, headlined "A perfect storm of failure in criminal justice," tell a pretty disconcerting story about the First State. Here is how the commentary gets started:

By every conceivable measure, Delaware’s criminal justice system is a failure. The Wall Street Journal recently reported that “Delaware has one of the highest violent crime rates in the country.”  The article found that our state ranked third highest among all states in robberies, and that the rate of crime in Wilmington is “one of the highest of any large city in the country.”

In November, the Delaware Criminal Justice Council issued its annual report on recidivism in Delaware, finding that “by the end of three years, about 76 percent of offenders in each cohort had been rearrested for a serious offense.”  Most recidivism events occurred in the first two years after release.

In December, the Bureau of Justice Statistics issued a report ranking Delaware’s prison system fifth highest among states in overcrowding at 154.7 percent of design capacity.  A recent report by the Liman Program at the Yale Law School ranked Delaware (tied with Tennessee) as having the third highest percentage of prisoners in solitary confinement in the nation.

With high rates of crime, incarceration, recidivism, overcrowding and solitary confinement, Delaware represents the perfect storm of failure for the “tough on crime” policies initiated more than 40 years ago. Our enormous investment in punitive incarceration is not making us safer.

January 5, 2017 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (10)

Prez Obama produces lengthy Harvard Law Review article titled "The President’s Role in Advancing Criminal Justice Reform"

I am intrigued and surprised (and concerned that I will soon be very aggravated) by this lengthy new Harvard Law Review article authored by Barack Obama.  In style (because the article runs 50+ pages with 300+ footnotes), the article hints that Prez Obama is interested in going back to being a law professor after he finishes his current gig.  In substance, the article's introduction provides this overview:

Part I details the current criminal justice landscape and emphasizes the urgent need for reform.  It would be a tragic mistake to treat criminal justice reform as an agenda limited to certain communities.  All Americans have an interest in living in safe and vibrant neighborhoods, in raising their children in a country of equal treatment and second chances, and in entrusting their liberty to a justice system that remains true to our highest ideals.  We simply cannot afford to spend $80 billion annually on incarceration, to write off the seventy million Americans — that’s almost one in three adults — with some form of criminal record, to release 600,000 inmates each year without a better program to reintegrate them into society, or to ignore the humanity of 2.2 million men and women currently in U.S. jails and prisons and over 11 million men and women moving in and out of U.S. jails every year.  In addition, we cannot deny the legacy of racism that continues to drive inequality in how the justice system is experienced by so many Americans.

Part II shows how the President can drive significant reform at the federal level.  Working with Congress, my Administration helped secure bipartisan sentencing reform legislation reducing the crack-topowder-cocaine disparity.  As an executive branch, we’ve been able to make important changes to federal charging policies and practices, the administration of federal prisons, and federal policies relating to reentry.  And through the presidential pardon power, I have commuted the sentences of more than 1000 prisoners.  Even though there are important structural and prudential constraints on how the President can directly influence criminal enforcement, these changes illustrate that presidential administrations can and do shape the direction of the federal criminal justice system in lasting and profound ways.

Part III details the approaches that Presidents can take to promote change at the state and local level, recognizing that the state and local justice systems tend to have a far broader and more pervasive impact on the lives of most Americans than does the federal justice system.  While the President and the executive branch play a less direct role in these systems, there are still opportunities — as my Administration’s work demonstrates — to advance reform through a combination of federal-local partnerships, the promulgation of best practices, enforcement, federal grant programs, and assembling reform-minded jurisdictions struggling with similar challenges.

Part IV highlights some of the work that remains, focusing on reforms that are supported by broad consensus and could be completed in the near term.  These include passing bipartisan criminal justice reform legislation in Congress, adopting commonsense measures to keep firearms out of the hands of those who are a threat to others or themselves, finding better ways to address the tragic opioid epidemic in this country, implementing critical reforms to forensic science, improving criminal justice data, and using technology to enhance trust in and the effectiveness of law enforcement.

I fear I will be aggravated by this article because it will confirm that Prez Obama (or his staff who helped author this article) truly understands the need to major criminal justice reforms and yet so relatively little got achieved on this front during Prez Obama's eight yesr in office. Also, I know I am already going to be troubled by what is not said in this article because a quick word search reveals that the word "marijuana" is not mentioned once even though state-level marijuana reform is by far the biggest criminal justice reform story of the Obama era (which, to the Obama Administration's credit, was in part fueled by his Justice Department's express hands off policy).

January 5, 2017 in Clemency and Pardons, Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (10)

Wednesday, January 4, 2017

Louisiana public defenders lacking resources needed to adequately prepare for Miller resentencings in old juve LWOP cases

This interesting local article highlights the economic challenges posed for some local courts and lawyers when now having to implement retroactively the Supreme Court's Miller ruling precluding mandatory LWOP sentences for juvenile murderers.  The article is headlined "'Unfunded mandate' of individualized sentencing hearings for some juveniles causing headaches for public defenders," and here are excerpts:

A 2012 U.S. Supreme Court decision ruled out laws mandating life without parole for juveniles as unconstitutional, and a subsequent decision last year made that ruling retroactive. Now, those juveniles are required to get what’s called “individualized sentencing hearings” before such a harsh sentence can be handed down, said Carol Kolinchak, a compliance officer for the Louisiana Public Defender Board.

And those hearings take resources. “You have to investigate and develop evidence (about) the youth and the circumstances surrounding the crime,” Kolinchak told [Judge Arthur] Hunter, adding that it is the defense’s “ethical obligation” to make sure each juvenile offender gets a proper investigation into their backgrounds prior to their hearing.

But, she added, the mandate isn’t cheap, and it’s also unfunded. At a cost of $60,000 to $75,000 a client, both [Orleans Parish Chief Public Defender Derwyn] Bunton and State Public Defender Jay Dixon said they were at a loss for how to properly prepare for each client’s sentencing hearing.

According to Kolinchak, there are nearly 300 juveniles eligible for such individualized hearings throughout the state. “The question in Louisiana is the same as it is nationally, which is that it has really been an unfunded mandate,” she said. “It places burdens on defense counsel with no discussion of funding.”

The issue came up in Hunter’s courtroom Tuesday in the case of Joseph Morgan, a defendant convicted in 2015 of second-degree murder in the death of Gervais "Gee" Nicholas, a teenager gunned down in 2008 outside the Chat Club at Tulane Avenue and South Lopez Street. Morgan was 16 at the time of the shooting, but prosecutors are nevertheless seeking life without parole.

Defense attorney Tom Shlosman, who is representing Morgan pro bono, told the judge he doesn't have the resources for the elaborate proceedings now required in Morgan's case. The other officials who testified before Hunter were brought in to help bolster the broader case that more money needs to be set aside statewide to handle these types of defendants....

In New Orleans, the question is how to proceed with about 72 cases that now qualify for a so-called “Miller hearing,” Kolinchak said. On Tuesday, both Bunton and Dixon said they didn’t anticipate being able to pay for those hearings, at least for indigent clients, anytime soon, because there’s no money available to properly investigate possible mitigating circumstances for those clients.

Dixon said the state public defender’s budget has been “stagnant” at about $33 million for the past several years. Moreover, he said, the threat of a 5 percent cut to his budget looms ahead, a move he said would be “devastating” for both death penalty cases and juvenile cases like Morgan’s. That’s because Dixon's office is required to distribute about 65 percent of its budget to district defenders' offices throughout the parishes, and so the cuts would have to come from the more complex pool of cases that his office contracts out to other law firms.

Bunton said he has to stretch an $8 million budget to cover nearly 22,000 cases a year — a situation that he said leaves him no room for taking on new work like individualized sentencing hearings for indigent juveniles....

“We don’t have an answer. This is the kind of thing that funding or lack of funding creates,” Dixon said. “You’re talking about basically a juggling act with a lack of funds. And we’re both in that trick box. We do not have an answer for that.”

January 4, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Florida Supreme Court adds to the mess that is the current Florida death penalty limbo

These three headlines spotlight the remarkable (and still unclear) story surrounding an important death penalty ruling by the Florida Supreme Court which was released and then withdrawn today:

"Typo upends Florida Supreme Court’s death penalty ruling"

"Florida's High Court Takes Puzzling Turn on Death Penalty"

"Florida Supreme Court: Prosecutors can't seek death penalty - or can they?"

Here are the basics from the first of these linked reports:

Just hours after declaring prosecutors could not seek death sentences under existing state law, the Florida Supreme Court on Wednesday rescinded the order, an uncommon move that casts fresh uncertainty on the state’s death penalty.

The reason: A typo.

In a 5-2 ruling Wednesday morning, the court rejected Attorney General Pam Bondi’s request to let prosecutors seek the death penalty as long as juries voted unanimously. The court threw out the state’s revamped death sentencing law in October because it required only a 10-2 super majority of the jury to put someone to death.

Then at 1 p.m., the Supreme Court rescinded the order, saying it was “prematurely issued,” and deleted it from the court’s website. The Wednesday morning ruling was vacated because of a “clerical error,” said Craig Waters, a spokesman for the court.

Makes me think of the famous words of one of my favorite philosophers.

January 4, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

"Why Dylann Roof Has a Right to the Death Penalty" ... OR "Why Dylann Roof Representing Himself Is A Constitutional Tragedy"

The title of this post is the headline of this effective and timely new NBC News commentary authored by Andrew Cohen.  Here are excerpts:

Dylann Roof has a constitutional right not to try to spare his own life....

In the end, despite the drama of a closed hearing in the middle of a capital trial, it likely wasn't a close call as a matter of law to allow Roof to continue to represent himself.  The standard for "competency" in these circumstances is low, on purpose, to give defendants the chance to control their own fates.  Roof has consistently shown he understands the nature of the proceedings against him.  The truth is that Roof's decision not to present mitigating evidence seems entirely consistent with his racist beliefs and with his evident antipathy toward psychiatry and psychology.  He wrote in the past that he is "morally opposed to psychology," calling it a "Jewish invention."

Roof also appears to share the mentality of other notable murderers who for one reason or another eschewed a defense their lawyers would have chosen for them. For example, Theodore Kaczynski, the Unabomber, rejected his attorneys' plans for an insanity defense on his behalf before accepting a plea deal that spared him the death penalty.  Oklahoma City bomber Timothy McVeigh gave up the rest of his appeals following his capital conviction and opted for an expedited execution, which took place at the federal death chamber in Terre Haute, Indiana, on June 11, 2001. The Beltway Sniper, John Allen Muhammad, also sparred with his own lawyers in Virginia before he was convicted and sentenced to death.

For all the hand-wringing over the constitutionality (and morality) of self-representation in a capital case, for all the arguments that every capital defendant should always present every non-frivolous defense at trial, the truth is that Roof has a constitutional right not to present a defense, to choose to increase the likelihood he'll get the death penalty instead of a life sentence without the possibility of parole.

It is not necessarily a sign of mental illness, or mental instability, or mental incompetence, to take responsibility for one's murderous actions rather than blame them, in some fashion, on some sort of mental disease or defect. Some killers, like McVeigh, saw it as one final act of control over their lives. This may be why Roof on Wednesday in his first direct interaction with jurors chose not to beg for his life but rather to tell the panel: "There is nothing wrong with me psychologically."

Nor is it necessarily a sign of mental incompetency to chose to want to die sooner, rather than later, after spending years in solitary confinement in a federal prison — which is where Roof will be headed no matter what his jury decides. If he doesn't want to save himself, in other words, or if he doesn't want the world ever to perceive him as having been mentally ill when he killed those innocent people inside that church, there is nothing his lawyers can do to save him so long as he's judged competent.

Finally, a point that's been under-reported these past few days: Just because Roof won't put on any mitigating evidence doesn't guarantee he'll get the death penalty. All it would take for the jury to preclude a capital sentence for Roof is for one juror to decide that consigning the 22-year-old defendant to 50 or 60 or 70 years in ADX-Florence, the federal prison in Colorado that Roof soon will call home, is a punishment worse than a death penalty. That, too, is not an unreasonable position to take.

UPDATE: Not more than an hour after I posted the Andrew Cohen commentary above, I learned of this new Huffington Post commentary by lawprof Scott Sundby which has the headline I have added to the title of this post.  Here are this piece's final two paragraphs:

The Supreme Court has justified the current death penalty regime on the premise that the jury will act as the conscience of the community. Jurors can only carry out this sacred function, however, if they hear all of the evidence, both for and against imposing a death sentence. Jurors often feel betrayed in cases when they later learn that a defense lawyer’s ineffectiveness meant they did not hear compelling evidence about a defendant’s mental illness or abusive childhood. And well they should. The justice system asked them to make a profoundly difficult moral and spiritual decision and then failed to give them the information that they needed to carry out their mandate.

In Roof’s case, the court may believe that its ruling furthers certain values, but it has missed a far more important constitutional principle: a death sentence should never be imposed unless we have complete confidence that the jury’s decision is a reliable and knowing one based on all of the facts. With Dylann Roof representing himself, that outcome is simply impossible. We owe it to the jurors and to ourselves as the society for whom the jurors speak that they hear all about Roof’s life before we ask them whether he should be sentenced to death.

January 4, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10)

GOP Senate Judiciary Chair Chuck Grassley says federal sentencing reform a priority after Trump nominations completed

This lengthy new Politico article, headlined in full "Senators plan to revive sentencing reform push: Senate Judiciary Chairman Chuck Grassley says he's not done yet pressing a cause with broad bipartisan support," brings some welcome new year good news for advocates of federal sentencing reform.  Here are the details, with a couple of lines emphasized for subsequent commentary:

Criminal justice reform — the great bipartisan hope of 2016 that ended in disappointment — may not be dead just yet. Senate Judiciary Committee Chuck Grassley (R-Iowa) plans to take up a bill to revamp U.S. sentencing laws and reform prisons soon after his panel clears the high-profile nominations from Donald Trump. A similar measure passed his committee overwhelmingly last year before stalling out in the face of opposition from law-and-order conservatives.

But Grassley told POLITICO he will soon try again. "The committee will begin the year working through the attorney general and Supreme Court nominees, but criminal justice reform will be one of the legislative bills I plan to bring up early on,” he said in a statement. “It cleared the committee with a broad bipartisan majority in the last Congress, and I don't expect that to change.”

The chief authors of the criminal justice overhaul, led by Grassley and Senate Minority Whip Dick Durbin (D-Ill.), will continue to try to drum up more support among senators, while “educating” the Trump administration about their bill’s merits, Grassley said.  The legislation isn’t expected to be substantially different than last year’s version.

Criminal justice reform could’ve been one of the bright, bipartisan spots in an otherwise contentious election year. But despite support from President Barack Obama, powerful congressional Republicans, and a sprawling network of groups from the left and right, the legislation never made it to the floor.  That was partly due to the determined efforts of law-and-order conservatives to steamroll it — and there's little to suggest that if the legislation heads to the Senate floor, that dynamic would change.

Nevertheless, Durbin approached Grassley after the election and pressed the chairman about whether the duo should make another run at it this year, Durbin recalled in a recent phone interview. Grassley was in. And once the chairman tees up the bill this year in his committee, its supporters expect a bipartisan vote similar to the 15-5 tally it received in October 2015.

Durbin and Grassley’s aides have been discussing a strategy to advance the bill in 2017. Aiding their cause is the fact that three opponents — GOP Sens. David Vitter of Louisiana, Jeff Sessions of Alabama and David Perdue of Georgia — are leaving the committee this year, stirring hope that the vote count in favor of the measure could be higher. Vitter no longer serves in the Senate, Sessions is expected to be confirmed as attorney general and Perdue is shifting committees. Replacing them on the influential panel are Sens. Ben Sasse of Nebraska, Mike Crapo of Idaho and John Kennedy of Louisiana. “I think the committee will be just as strong. It may be stronger,” Durbin said. “When you have people like Grassley and Durbin and [Senate Majority Whip John] Cornyn and [Sen. Patrick] Leahy for goodness sakes … it ought to be enough for us.”...

Senate Majority Leader Mitch McConnell (R-Ky.) is rarely eager to take up policy fights that divide his conference — and Democrats point a finger at him as a prime reason why criminal justice reform stalled last year. “The problem we ran into is Sen. McConnell, who didn’t want to call the bill to the floor. He was concerned about the impact on the election and also that the House wasn’t going to take it up,” Durbin said. The question remains going forward, he added, "whether McConnell will give us a chance.” McConnell aide Don Stewart responded that the majority leader spoke several times about the issue in 2016 and “doesn’t need Sen. Durbin to be his spokesman.”

The president-elect ran on a law-and-order platform, but Trump doesn't appear to have weighed in on the Senate measure during his campaign. Another wildcard factor is Sessions, Trump’s pick to become the attorney general.  As a senior member of the Senate Judiciary Committee, he was a fervent opponent of the sentencing overhaul and one of the five votes against it.

But Sen. Thom Tillis (R-N.C.), another supporter of the criminal justice reform effort, speculated that once Sessions becomes the attorney general, his chief objective will be on enforcing what Congress sends him — even if he disagrees with it — rather than slipping into the role of legislator and try to change the laws. “He’s going to be focused on being the nation’s top law enforcement official,” Tillis said. “I don’t necessarily see him weighing in heavily on public policy choices that President Trump makes.”

Durbin said he intends to press Sessions on his views of criminal justice reform and how he’ll handle the issue at the Justice Department when the two meet privately to discuss about his bid to become attorney general on Wednesday.  Though Sessions had wanted to meet earlier, Durbin said Senate Democrats decided as a caucus to not meet with any Cabinet selections until the new year. “I want to know after all of the speeches he gave on the floor against criminal justice reform, what we can expect of him as attorney general,” Durbin said. “I don’t know what he’ll say.”

Still, others speculate that after Washington endures partisan wars over repealing Obamacare and confirming polarizing presidential nominees, Trump will be looking for a bipartisan win. Criminal justice reform could deliver one. “I know we have enough votes to send this to the president’s desk,” Tillis said. Stressing his desire to avoid legislative gridlock, Tillis added: “The election was not a Republican mandate. The election was a results mandate.”

This story is both encouraging and not all that surprising given the events of the last few years surrounding the proposal, debates and modifications of the Sentencing Reform and Corrections Act. The two lines I have emphasized reflect two coming developments that I think are crucial to this developing 2017 federal sentencing reform story:

1. I think it would be a policy mistake, despite the 2015 Judiciary Committee success of the SRCA, for that bill to serve the essential template for new Senate reform legislation. In my view, there are a host of ways a new and improved federal sentencing reform bill could and should be much more streamlined AND I think a new bill could and should garner even more bipartisan support if it also were to include some modest (or even aggressive) mens rea reforms.

2. I think Senators Sessions and Durbin are really critical players here, especially over the next few weeks, as Sessions develops and articulates his priorities as Attorney General and as Durbin seeks to explain why the horrific uptick in violent crime in his own Chicago (Which Prez-Elect Trump has been tweeting about) should not be a reason to tap the brakes on any further federal sentencing reforms.

January 4, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

"Texas sues feds over confiscated execution drugs"

The title of this post is the headline of this notable new Dallas Morning News article reporting on some notably different kind of execution drug litigation. Here are the details:

For nearly a year and a half, the U.S. Food and Drug Administration has detained a shipment of about 1,000 vials of execution drugs headed for Texas' death chamber. On Tuesday, Texas officials demanded an end to the delays, filing a lawsuit that seeks to force the feds to turn over the drugs. "My office will not allow the FDA to sit on its hands and thereby impair Texas' responsibility to carry out its law enforcement duties," Texas Attorney General Ken Paxton said in a statement.

Texas and other states that still execute inmates have been hard-pressed to find lethal injection drugs in recent years. American companies have stopped making the drugs, and European makers have stopped selling them to the U.S. Amid the drug shortage in 2012, Texas switched from the three-drug cocktail it used since 1982 to a single overdosing injection of pentobarbital, a barbiturate, but that drug, too, is in short supply.

In July 2015, the FDA intercepted about 1,000 vials of sodium thiopental, also a barbiturate, that Texas was attempting to import from a foreign seller at the George Bush Intercontinental Airport in Houston. FDA officials said that the drugs lacked the required warnings and directions for use and that they needed federal approval. The state responded to the FDA, explaining that the drugs were legal for importation for law enforcement use. In April 2016, the FDA issued a tentative decision denying admission of the drugs. But since then, the agency hasn't issued a final decision and has kept the drugs.

In the lawsuit filed Tuesday, Paxton argued the delays are unwarranted and should come to an end. "Because FDA's delay is unreasonable, TDCJ requests the Court to declare that the delay is unlawful and compel FDA to render a final admissibility decision," the lawsuit states.

As execution drugs have become harder to obtain, the state has turned to compounding pharmacies to make them, has sought drugs from foreign providers and has sought to restrict public access to information about where and how it gets drugs used in lethal injections....

"The Texas Department of Criminal Justice lawfully ordered and obtained the necessary license to import drugs used in the lethal injection process, yet the Food and Drug Administration stopped the shipment and continues to hold it without justification. This has left the agency with no other recourse than to challenge the unjustified seizure in court," Texas Department of Criminal Justice spokesman Jason Clark said in a statement.

Clark said the TDCJ has enough drugs on hand to complete the nine executions scheduled for the first six months of this year. "We cannot speculate on the future availability [of] drugs, so the agency continues to explore all options including the continued use of pentobarbital or alternate drugs to use in the lethal injection process," Clark said.

January 4, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Tuesday, January 3, 2017

Eleventh Circuit Judge, and SCOTUS short-lister, William Pryor named Acting Chair of the (now hobbled) US Sentencing Commission

Because of the rumored short-list of the short-list of possible SCOTUS nominees, this press release coming today from the US Sentencing Commission might get a bit more than usual amoung of attention. Here is the full text of the release, the last paragraph of which is really the most important:

The United States Sentencing Commission announced that Circuit Judge William H. Pryor, Jr. will serve as Acting Chair of the Commission, as the term of the former Chair, Chief Judge Patti B. Saris expired at the end of the 114th congressional session.

In his first statement as Acting Chair, Judge Pryor of the Eleventh Circuit Court of Appeals said, “I am honored to act as Acting Chair of the Commission and commend the exemplary leadership of Chief Judge Saris during her term. I look forward to our continued work to further the Commission’s critical mission of developing federal sentencing policies that further the goals of the Sentencing Reform Act of 1984.”

The terms of Judge Charles R. Breyer (former Vice Chair) and Commissioner Dabney L. Friedrich also expired.  By statute, commissioners are appointed by the President and confirmed by the Senate, and serve six-year terms. At least three of the commissioners must be federal judges and no more than four may belong to the same political party. Remaining commissioners include Commissioner Rachel E. Barkow, Commissioner J. Patricia Wilson Smoot (ex-officio, U.S. Parole Commission), and Commissioner Michelle Morales (ex-officio, U.S. Department of Justice).  The Commission must have at least four voting Commissioners for a quorum.

Because ex-officio members of the USSC do not have voting rights, the current Commission is now officially two members short of a quorum and five members short in total.  For those eager to see continued federal sentencing reforms and improvement, this is a very big deal and a very big problem.

I am hopeful (but not especially optimistic) that the incoming Trump Administration might make staffing the USSC with new Commissioners a "first 100 days" priority.  I am not sure whether having Judge Pryor as Acting Chair and/or having him be a possible SCOTUS pick makes staffing the USSC more or less likely.  I suppose time will tell.

January 3, 2017 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (5)

Eighth Circuit panel reverses district court findings of substantive due process problems with Minnesota's sex offender commitment program

As reported in this local article, a "federal appeals court in St. Louis has reversed a lower-court ruling that Minnesota's sex-offender treatment program is unconstitutional — a major victory for the Minnesota Department of Human Services and a decision that could delay long-awaited reforms to the state's system of indefinite detention for sex offenders."  Here is more about the ruling and its context:

In a decision Tuesday, a three-judge panel of the Eighth Circuit Court of Appeals found that a class of sex offenders who sued the state failed to prove that the Minnesota Sex Offender Program (MSOP) violated their due process rights under the U.S. Constitution. "We conclude that the class plaintiffs have failed to demonstrate that any of the identified actions of the state defendants or arguable shortcomings in the MSOP were egregious, malicious, or sadistic as is necessary to meet the conscience-shocking standard," the court ruled.

In response, the lead attorney for a class of offenders who sued the state said he is considering an appeal to the U.S. Supreme Court, which must be filed within 90 days. "Justice was not done today," said Dan Gustafson, the attorney for the plaintiffs. "We're still considering what we are going to do but, as Governor Dayton said the other day, we are not going quietly into the night."

Minnesota confines more offenders per capita, and has the lowest release rate, among the 20 states that use civil commitment to confine sex offenders in treatment programs. Only 14 offenders have been conditionally discharged from the program in its more than 20-year history. Of those, seven are currently living in the community. Just one offender has been unconditionally discharged, and that did not occur until August.

In June 2015, federal Judge Donovan Frank in St. Paul, ruling in a lawsuit brought by a group of sex offenders, declared the program unconstitutional for confining offenders indefinitely, after they have already completed their prison terms, without a clear path toward release. The judge ordered state officials to conduct independent evaluations of the roughly 720 offenders confined at secure treatment centers in Moose Lake and St. Peter to determine if they still pose a public safety risk. He also ordered the state to develop less restrictive options for housing offenders in the community.

The unanimous Eighth Circuit panel ruling in this case is available at this link, and it gets started this way:

Class plaintiffs, civilly committed sex offenders, bring a facial and as applied challenge under 42 U.S.C. § 1983, claiming their substantive due process rights have been violated by Minnesota’s Civil Commitment and Treatment Act and by the actions and practices of the managers of the Minnesota Sex Offender Program (MSOP).  The Minnesota state defendants in this action are managers of MSOP — Emily Johnson Piper, Commissioner of the Minnesota Department of Human Services; Kevin Moser, MSOP Facilities Director at Moose Lake; Peter Puffer, MSOP Clinical Director; Nancy Johnston, MSOP Executive Director; Jannine Herbert, MSOP Executive Clinical Director; and Ann Zimmerman, MSOP Security Director (collectively “state defendants”).  After several months of litigation, including a six-week bench trial, the district court found for plaintiffs and entered an expansive injunctive order.  The district court applied incorrect standards of scrutiny when considering plaintiffs’ claims, thus we reverse the finding of substantive due process violations and vacate the injunctive relief order.  We remand to the district court for further proceedings to address the remaining claims.

January 3, 2017 in Criminal Sentences Alternatives, Prisons and prisoners, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9)

Latest SCOTUS short-list speculations and suggested nomination timeline

SCOTUS junkies will want to be sure to check out this latest lengthy Politico article headlined "Inside Trump's strategy to remodel the Supreme Court: The president-elect is narrowing his short list while his advisers look beyond the current opening." Here are snippets that struck me as especially new or noteworthy:

Donald Trump has narrowed his short list for his first Supreme Court pick down to roughly a half-dozen finalists but the president-elect and his top advisers are already thinking about a second selection, as they seek to quickly remodel the high court with a reliably conservative bent.  Trump’s team wants to make filling the seat held by the late Justice Antonin Scalia one of the earliest acts of his presidency, according to multiple transition officials, in hopes of scoring an energizing and unifying victory for the conservative movement.

And as Trump weighs perhaps the most enduring personnel decision he’ll make as president-elect — filing one of only nine lifetime seats on the high court — he has sought input from an array of friends, former rivals, and legal and TV personalities. “He clearly understands he may have a chance to define the court for a generation or more and he is taking it very seriously,” said former Speaker Newt Gingrich, a Trump confidante.

While Scalia’s seat is the only current opening, Trump’s advisers are plotting how to fill that vacancy in tandem with the next one — a slot if vacated by a liberal justice like Ruth Bader Ginsburg, 83, or swing-vote Justice Anthony Kennedy, 80, could far more dramatically move the court’s political center of gravity to the right. The thinking inside the transition, according to multiple people involved in the internal deliberations, is that Scalia’s replacement offers Trump and the conservative movement the best chance for an unabashedly rock-ribbed replacement because it would not fundamentally shift the court’s balance of power....

But in the current search process, Trump’s team is also hoping to identify a conservative candidate — possibly a woman — who could be more politically palatable, or at least harder for Senate Democrats to oppose, if Kennedy or Ginsburg leave the court.... Two of the most-discussed names are Diane Sykes of the Chicago-based 7th Circuit federal appeals court and William Pryor of the Atlanta-based 11th Circuit, in part because Trump himself name-dropped them at a primary debate last February....

Trump, besides promising to appoint justices in the mold of Scalia, is looking for some distinctly Trumpian qualities.  He has repeatedly told his advisers, for instance, “I want someone who is not weak.”  That is especially appealing to legal conservative hardliners who are still scarred by former Justices David Souter and Sandra Day O’Connor, two Republican appointees who often sided with the court’s liberal bloc, and to a lesser extent Chief Justice John Roberts, an appointee of President George W. Bush, who upheld the constitutionality of President Obama’s health care law....

Those close to Trump’s search process say that the list now under more serious consideration is closer to a half-dozen, including Pryor and Sykes, as well as 3rd Circuit Judge Thomas Hardiman, 6th Circuit Judge Raymond Kethledge, 8th Circuit Judges Steve Colloton and Raymond Gruender, 10th Circuit Judge Neil Gorsuch and Michigan Supreme Court Justice Joan Larsen.

Trump released two lists of potential justices during the campaign, but most of the candidates under serious consideration are on the initial list of 11.  The only two women in the current top tier, Larsen, who is only 48, and Sykes, 59, are among those who could be “held back” for a second opening. “Going with a woman or a minority does get you some brownie points, so in terms of picking the hardest to confirm now, that would argue for a man,” Levey said. “Also the symbolic value, if Ginsburg does leave the court, of replacing her with a woman WOULD be important.”

Trump’s advisers want his Supreme Court pick to be one of his earliest acts as president, though the plan has been not to announce a choice until after Sen. Jeff Sessions is confirmed as attorney general.  Both Sessions and any high court pick must pass through the same Senate Judiciary Committee.

The two men spearheading Trump’s search are Don McGahn, Trump’s incoming White House counsel, and Leonard Leo, the Federalist Society’s executive vice president. Incoming White House Chief of Staff Reince Priebus, and top Trump advisers Steve Bannon and Kellyanne Conway are also involved, as are Vice President-elect Mike Pence and Sessions.

Leo said on “Fox News Sunday” that Trump’s team wants the Scalia vacancy filled in time for the new justice to be seated for the final sitting of this term in late April. That could allow the new justice to weigh in on important pending cases, including the detention of immigrants and transgender rights. “Ideally, you would have someone who could be seated on the court at least by then to hear those final round of cases, perhaps even have some of the 4-4 decisions, if there are any, reheard by the court,” Leo said. He noted that Ginsburg — “one of the most liberal justices”— was confirmed in just 50 days at the start of President Clinton’s first term....

As he often does ahead of big decisions, Trump has sought opinions from far and wide, including Fox News legal analyst Judge Andrew Napolitano, former rivals Ted Cruz and Rick Santorum and at least one person on his longer list: Sen. Mike Lee of Utah, who is not considered to be in serious contention for a high court seat. While Trump promised his public list of 21 was “definitive” when it was announced, he could still expand it for a second pick. “After the first nominee he may add some new possibilities,” Gingrich said, a view confirmed by another transition official.

A few prior related Trumpian SCOTUS posts:

January 3, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (7)

Death penalty in Pennsylvania so dysfunctional that it cannot complete long-overdue report on its dysfunction

Unless and until the newly enacted reform ballot initiative magically fixes a whole bunch of problems, California will still be able to lay claim to having the most dysfunctional death penalty system in the United States.  But this new local article, headlined "Three years late, seminal death penalty report still unfinished," highlights why Pennsylvania come in a pretty close second. Here are excerpts:

Already three years behind schedule, a committee studying flaws in Pennsylvania's death penalty is still a long way away from issuing its much-anticipated report.  The stakes for the Senate's Advisory Committee on Capital Punishment are high, ever since Gov. Tom Wolf vowed nearly two years ago to block executions until its recommendations are issued and acted upon.

But elevated from obscurity by Wolf's moratorium, the all-volunteer committee has no individual budget and no dedicated staff members, and has consistently seen its time line pushed further and further into the future, much to the unhappiness of death-penalty backers.  The new year will see "meaningful, significant progress" in the panel's work, said Steve Hoenstine, a spokesman for state Sen. Daylin Leach, D-Montgomery, a point man in the effort.  But Hoenstine wouldn't commit to the report being completed this year, given the scope of the questions being tackled.  "The goal isn't to produce something as quickly as possible that may or may not be correct," said Hoenstine, whose boss is a staunch opponent of capital punishment. "Studying bias in Pennsylvania's death penalty, it is just an enormous undertaking."

Wolf, a Democrat, announced his moratorium in February 2015, when he called the death penalty "error prone, expensive and anything but infallible." He has since issued reprieves to five inmates facing the death chamber, including Lehigh Valley mass murderer Michael Eric Ballard, who stabbed to death four people in a Northampton home in 2010 while on parole for a prior killing. Even without issuing findings, the advisory committee has proven controversial to death-penalty supporters, who charge the makeup of its 27 members is weighted against capital punishment.

Given the moratorium, it is no surprise that the report continues to be delayed, said Northampton County District Attorney John Morganelli, a Democrat who is a vocal death penalty backer. With executions halted, there's no incentive for the committee to finish its work, he said. "I don't think it is ever going to come," Morganelli said. "Why would they release it?"

The committee, approved by the Senate in 2011, is looking into 17 aspects of capital punishment, including its cost, its impact on public safety, its potential for racial or economic bias, and whether there are sufficient safeguards against the innocent being executed.  The report originally was due in December 2013. The panel includes judges, defense attorneys, prosecutors, clergy members, college professors, a relative of a murder victim, victims advocates, officials from the American Civil Liberties Union and two other nonprofits, and police and corrections representatives.

Hoenstine said delays have nothing to do with the moratorium.  He noted the committee was established while Wolf's predecessor, Tom Corbett, a Republican former prosecutor, was governor.  "This is something that happened long before Gov. Wolf took office and, therefore, long before this moratorium took place," Hoenstine said. "It is a bipartisan search for the truth. It is nothing but that."

Like much of the nation, the state has contentiously debated capital punishment, under which scores of Pennsylvania inmates have seen their sentences reversed. None have been executed here against their will since John F. Kennedy was president.

The committee's work is spearheaded by the Joint State Government Commission, a research wing of the Legislature, with assistance from a state commission on fairness in the courts and by researchers from Penn State University.  Glenn Pasewicz, executive director of the Joint State Government Commission, has said research has proven laborious, given the need for data collectors to go from county courthouse to county courthouse gathering statistics about homicide cases, when the death penalty is sought and when it is imposed.  According to Hoenstine, that work is ongoing. "We want it to be data driven and based on clean data, reliable data," Hoenstine said. "That's a time-consuming process."...

Pennsylvania has 175 prisoners on death row, but it rarely performs an execution, going back well before Wolf's moratorium. Just three men have been put to death in the modern era of capital punishment, and all were volunteers who abandoned legal challenges to their sentences. The last was Philadelphia "house of horrors" murderer Gary Heidnik, who was lethally injected in 1999.

January 3, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Monday, January 2, 2017

Great report on Texas justice reviewing why Lone Star State is a "leader in criminal justice reform"

Images (4)Via this local press article, headlined "Report: Don't cut funding for inmate rehabilitation," I came across this terrific new report from the Texas House of Representatives Committee on Corrections.  These excerpts from the press piece provides a partial summary of the report:

When lawmakers return to Austin in 10 days to begin grappling with what appears will be a bare-bones state budget, a legislative panel that oversees the Texas prison system is urging them to resist cutting funding for programs that help former inmates and probationers adjust to free-world life.

“As (the prison system) cannot cut back on the security and public safety components of their mission, it is likely that many of the programs that are making a real difference will face the axe,” says a report released over the holidays by the Texas House Corrections Committee.

“The state that leads the nation in executions also leads the nation in providing alternatives to incarceration,” the report adds. “An American state that used to be infamous for its ‘lock 'em up and throw away the key’ approach to crime is now providing an unlikely inspiration to other states and countries.”

The 68-page report that the panel will likely use as a blueprint for legislative initiatives once 2017 session begins Jan. 10 makes several recommendations, include lowering the fees that probationers must pay, opting out of a federal program that requires the suspension of a driver’s license for anyone convicted of possessing even a small amount of marijuana and sealing the criminal records for qualifying former inmates who remain out of trouble for a specified period of time.

The report comes some 20 years after Texas leaders frustrated by rising crime rates completed a massive prison building program that tripled the system’s capacity. It even uses a phrase once thought to be politically toxic is describing the state’s approach for helping lawbreakers return to society. “Texas is a leader by being ‘softer on crime,’ although we prefer the word ‘smarter,’” it says. “It's something to think about as we head into the next legislative session.”....

The committee report says probation revocations, while still relatively high, have been steadily dropping for about a decade as lawmakers began devoting more resources to programs aimed at reducing inmates’ and probationers’ substance addictions and arming them with job skills. During that period, the report says, Texas’ crime rate has dropped about 20 percent while recidivism rates declined from 28 percent to 21 percent.

During a hearing in February, Corrections Committee Chairman Jim Murphy said it’s important that inmates and probationers believe that the state is committed to programs aimed at minimizing the chance that they’ll be back behind bars. “I am thinking about the dynamic of someone being in the system, wanting to improve themselves, and being told ‘you're not a priority,’” said Murphy, a Houston Republican. “If we're trying to get someone not to recidivate, that's exactly opposite of what I think the intended result would be.”

According to the report, which Murphy signed in early December before its release last week, the fees associated with being on probation can be insurmountable for offenders struggling to find employment. Probationers are charged upward of $60 a month to help cover the cost of supervision. Many are required to take and pay for classes aimed at fighting addiction or controlling anger and violence. Probationers who lose driving privileges can be required to take a class to have the license reinstated and pay up to $325 before being allowed to drive, even if it’s just to and from work.

The list goes on. “There are fees for records management, for juries, for judicial support, for court security, and for indigent defense,” the committee’s report says. “Pages and pages of fees. It boggles the mind to read it. Think of what it must be like to live it.” Often, the report continues, judges who impose the costs have little information regarding an offender’s ability to pay them. “In an era when you can find out your credit score for free on the internet, would it be that difficult to determine if a person is indigent prior to appearing before a judge?” the report asks.

The committee’s report points out that in April 2016, Pennsylvania enacted legislation, allowing criminal records of qualified nonviolent offenders to be sealed for offenders who remain free of legal trouble for 10 years. The records of those charged but not convicted of a crime can be sealed after 60 days.

As this partial summary should highlight, any and everyone interested in state or national criminal justice reform ought to have this across this important new Texas government report high on their New Year's reading list.

January 2, 2017 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (4)

Understanding why Dylann Roof will not present penalty phase evidence at his capital trial

Last week in this post I noted the news that Dylann Roof, at a hearing before the penalty phase of his capital trial, told the district judge that "he doesn't plan to call any witnesses or present evidence to ask a jury to spare his life." This new New York Times article, headlined, "Dylann Roof Himself Rejects Best Defense Against Execution," provides some explanatory backstory.  Here is how the lengthy piece begins:

Twenty-two pages into the hand-scribbled journal found in Dylann S. Roof’s car — after the assertions of black inferiority, the lamentations over white powerlessness, the longing for a race war — comes an incongruous declaration.

“I want state that I am morally opposed to psychology,” wrote the young white supremacist who would murder nine black worshipers at Emanuel A.M.E. Church in Charleston, S.C., in June 2015. “It is a Jewish invention, and does nothing but invent diseases and tell people they have problems when they dont.”

Mr. Roof, who plans to represent himself when the penalty phase of his federal capital trial begins on Tuesday, apparently is devoted enough to that proposition (or delusion, as some maintain) to stake his life on it. Although a defense based on his psychological capacity might be his best opportunity to avoid execution, he seems steadfastly committed to preventing any public examination of his mental state or background.

“I will not be calling mental health experts or presenting mental health evidence,” he wrote to Judge Richard M. Gergel of Federal District Court on Dec. 16, a day after a jury took only two hours to find him guilty of 33 counts, including hate crimes resulting in death, obstruction of religion and firearms violations. At a hearing on Wednesday, Mr. Roof told the judge that he planned to make an opening statement but not call witnesses or present evidence on his behalf.

The testimony presented by prosecutors during the guilt phase of Mr. Roof’s trial detailed with gruesome precision how he had plotted and executed the massacre during a Wednesday night Bible study in the church’s fellowship hall. It was less satisfying in revealing why he had done it. With his choice to sideline his legal team and represent himself, the second phase — when the same jury of nine whites and three blacks will decide whether to sentence him to death or to life in prison — may prove little different.

Death penalty experts said it was exceedingly rare for capital defendants to represent themselves after allowing lawyers to handle the initial part of a case. Mr. Roof, who also faces a death penalty trial in state court, has not publicly explained his reasoning. But legal filings strongly suggest a split with his court-appointed defenders about whether to argue that his rampage resulted from mental illness.

January 2, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Sunday, January 1, 2017

Any astute thoughts about the sentencing year that was or the year that will be?

A variety of other (mostly non-work) engagements have prevented me from having the time to do any elaborate year-in-review or year-to-come posts about sentencing topics.  That said, as I take my 2016 calendars down and replace them with the 2017 versions, two matters come to mind that implicate both the year that was and the year to come:

1. SCOTUS transition: though representing only one vote, Justice Scalia's voice and impact on sentencing and criminal justice jurisprudence was far larger than his voting record.  The impact and import of his legacy and his absence, along with the coming character of his SCOTUS replacement, cannot be readily overstated.

2. Marijuana reform (but few other big sentencing reforms): with four more states voting for full recreational reform and nearly a dozen others enacting or enhancing medical regimes, in 2016 marijuana reform continued at a remarkable clip while broader drug war and other sentencing reform stalled (at least at the federal level). What the new GOP executive leaders in DC will now do on these fronts is among the most interesting and dynamic and uncertain story to watch in 2017.

As always, I welcome reader throughout on these topics and any others about the year that ended yesterday or the new one getting started today.

January 1, 2017 in Drug Offense Sentencing, Federal Sentencing Guidelines, Marijuana Legalization in the States, Who Sentences? | Permalink | Comments (5)

Chief Justice extols the work of federal district judges in traditional year-end report

The Chief Justice of the United States John Roberts decided to use his 2016 Year-End Report on the Federal Judiciary, which is available at this link, to praise the work of federal district judges. The report starts with a lovely little history lesson, and it includes these passages that should especially engage criminal justice fans:

The character of a district judge is most starkly evident in a criminal trial.  Most criminal charges are resolved through the plea bargaining process, but those cases that go to trial place especially high demands on the court.  The judge must move the process forward in accordance with the Speedy Trial Act, consistent with the defendant’s right to constitutionally adequate representation.  He must promptly decide motions and make evidentiary rulings as the trial proceeds, typically without the luxury of calm consideration and research in the quiet of chambers.  The judge must carefully guide the jury on the elements of the offense and the prosecution’s burden of proof.  If the trial results in conviction, the judge faces the somber task of sentencing.

Most district judges agree that sentencing is their most difficult duty.  The judge must confront the offender, face-to-face, and take just account of human failing.  The judge must consider the perspectives of the prosecutor, the defendant, and the victim, and impose a penalty that, by design and necessity, will alter the direction of the defendant’s life.  In determining appropriate punishment, his discretion is confined by legislative determinations, and guided by carefully considered sentencing guidelines and a presentence report.  At the end of the day, the sentence nonetheless critically reflects the judge’s wisdom, experience, and educated grasp of what he observed firsthand in the courtroom. In delivering the sentence, the judge speaks as the voice of the community.

In part because I know and respect so many federal district judges, I am so very pleased to see the Chief Justice deliver this kind of justified professional love letter. In addition, because I have long been a strong and dogged advocate for SCOTUS Justices having experience as a trial judge, I cannot help but "read between the lines" here and see a kind of chiefly endorsement for the next SCOTUS justice having district court experience.

January 1, 2017 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Saturday, December 31, 2016

Split Sixth Circuit ruling upholding protective order concerning lethal injection drugs might(!?!) enable Ohio to get back into execution game

As this local article reports, in the afternoon of the last business day of 2016, a Sixth Circuit panel "upheld a protective order shielding the state of Ohio from having to disclose the names of those who make or use the state's lethal-injection drugs."  Here is more about the ruling and its context:

In a 2-1 decision, the appeals court panel ruled that a district court judge was justified in issuing the secrecy order, which was made on the grounds that it was needed to protect lethal-injection drugmakers from public intimidation and harassment. The lawsuit, brought by more than 65 death-row inmates, contended that the state shouldn't be allowed to use drugs procured from anonymous suppliers and evaluators.

Ohio had postponed its next three executions by several weeks at the behest of a federal magistrate, who feared the appeals court wouldn't make this ruling before a Jan. 3 court hearing for the first three inmates scheduled to die. As a result, Gov. John Kasich delayed the resumption of executions from Jan. 12 to Feb. 15, starting with convicted child killer Ronald Phillips of Akron. It's unclear whether that revised schedule will stay in place now that the appeals court has ruled....

Ohio hasn't executed anyone since January 2014, when killer Dennis McGuire took 25 minutes to die from a previously unused execution drug combination. State officials and the courts put executions on hold until the state picked a new lethal-injection drug combination of midazolam, rocuronium bromide and potassium chloride last October....

In 2014, state lawmakers passed a secrecy law hoping to encourage small-scale drug manufacturers called compounding pharmacies to make its lethal-injection drugs.

The full ruling is available at this link, and the fact that the panel opinion included a dissent could entail further en banc or SCOTUS appeals on just this semi-procedural issue involving a protective order. Even without further appeals, though, there is an evidentiary review on tap for the first week of January concerning Ohio's new execution drug protocol, and that litigation has already led in part to a short delay of scheduled executions. In other words, this Sixth Circuit panel ruling may clear one obstacle for Ohio resuming executions, but there are additional litigation road-blocks still ahead.

December 31, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Friday, December 30, 2016

Third Circuit reverses (short) sentence based in part on "bare arrest record" ... JAN 3, 2017 UPDATE: Opinion VACATED at "the direction of the Court" ... AND on Jand 9, 2017 the opinion returns

A number of helpful readers made sure I did not miss the significant sentencing opinion handed down by a Third Circuit panel in US v. Mateo-Medina, No. 15-2862 (3d Cir. Dec. 30, 2016) (available here).  Here is how the opinion starts:

Maximo Mateo-Medina appeals his sentence of twelve months plus one day imprisonment for illegally reentering the United States, in violation of 8 U.S.C. § 1326(a) and (b)(1). Although Mateo-Medina pled guilty to the offense, he now appeals the sentence, arguing that the sentencing court violated his Due Process Clause rights by impermissibly considering, among other things, arrests that did not result in convictions.  The Presentence Investigation Report (PSR) that disclosed those arrests did not contain any of the underlying conduct.  For the reasons set forth below, we agree and we will therefore vacate the sentence that was imposed and remand for resentencing.

The opinion includes citations to considerable research regarding "disparities in arrest rates," and it ultimately holds that the district court's sentencing decision amounted to plain error in a final section which notes that "calculating a person’s sentence based on crimes for which he or she was not convicted undoubtedly undermines the fairness, integrity, and public reputation of judicial proceedings."

UPDATE on January 3, 2017: Another helpful reader today sent me this link to a one-page Third Circuit order which reads: "At the direction of the Court, the opinion and judgment entered on December 30, 2016 are hereby VACATED." Hmmm.

ANOTHER UPDATE on January 9, 2017:  I was again alerted by a helpful reader that, as evidenced here,  US v. Mateo-Medina, No. 15-2862 is back and seemingly as good as ever.  Color me confused and curious, but ultimately pleased to learn that this seemingly sensible opinion remains good law.

December 30, 2016 in Booker in the Circuits, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (1)

Thursday, December 29, 2016

BJS releases three big reports on correctional populations throughout the United States

Via email today I received news of and links to a bunch of big data reports from the Bureau of Justice Statistics (which is part of the Office of Justice Programs at the U.S. Department of Justice). Here are the titles, links and descriptions of these notable new publications:

Correctional Populations in the United States, 2015

This report presents statistics on persons supervised by adult correctional systems in the United States at yearend 2015, including persons supervised in the community on probation or parole and those incarcerated in state or federal prison or local jail. The report describes the size and change in the total correctional population during 2015. Appendix tables provide statistics on other correctional populations and jurisdiction-level estimates of the total correctional population by correctional status and sex for selected years.

Prisoners in 2015

This report presents final counts of prisoners under the jurisdiction of state and federal correctional authorities at yearend 2015, including admissions, releases, noncitizen inmates, and inmates age 17 or younger. The report describes prisoner populations by—

  • jurisdiction
  • most serious offense
  • demographic characteristics.

Selected findings on prison capacity and prisoners held in private prisons, local jails, and the U.S. military and territories are also included. Findings are based on data from BJS's National Prisoner Statistics program, which collects data from state departments of correction and the Federal Bureau of Prisons.

Jail Inmates in 2015

This report presents information on changes in the jail inmate population between 2000 and 2015 by—

  • demographic characteristics
  • conviction status
  • average daily population
  • rated capacity of local jails
  • percent of capacity occupied.

It also includes statistics, by jurisdiction size, on changes in the number of inmates, admissions, and weekly turnover rate from 2014 to 2015. Estimates and standard errors were based on BJS's Annual Survey of Jails.

December 29, 2016 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Will Ohio get back in the business of state killing in 2017?

The question in the title of this post is prompted in part by my awareness of lots of messy on-going litigation in the Buckeye State over execution protocols and in part by this new local AP article headlined "Court weighs challenge of order blocking Ohio execution info."  Here are excerpts from the AP piece:

A federal appeals court is weighing a challenge by attorneys for death row inmates of a judge's order blocking them from information about Ohio's new lethal injection process. The pending decision by the 6th Circuit Court of Appeals will help determine whether Ohio will proceed with its first executions in three years beginning in February.

Ohio plans to execute Ronald Phillips on Feb. 15 for raping and killing his girlfriend's 3-year-old daughter in 1993. Another execution is scheduled for April.

At issue are new efforts the state is making to shield information about lethal injection in hopes of jumpstarting executions in Ohio, which have been on hold since January 2014. That's when it took condemned inmate Dennis McGuire 26 minutes to die from a never-before-used two-drug method while he repeatedly gasped and snorted.

For example, a 2015 law blocks anyone from getting information about individuals or entities participating in executions, including companies that make or mix drugs. The 6th circuit last year upheld that law while rejecting free speech allegations raised by death row inmates.

What's before the appeals court now is a protective order issued by a federal judge last fall that bars the release of information about lethal injection requested by attorneys for Phillips and two other inmates scheduled for execution in 2017.  That order, by retired Judge Gregory Frost, held that the state's need to obtain the drugs outweighs concerns by death row inmates that the information is needed to meaningfully challenge the source of the drugs, such as names of the manufacturers.

Federal Magistrate Judge Michael Merz in Dayton cited the current 6th Circuit case earlier this month when he put executions on hold. He said the hold could be lifted after the court rules. Attorneys for death row inmates argue they can't meaningfully challenge the use of the drugs without the information. They also said the secrecy protections are unnecessary given the history of lawsuits over lethal injection in Ohio....

The Department of Rehabilitation and Correction in October announced plans to use a new three-drug combination — midazolam, rocuronium bromide and potassium chloride — for at least three executions. Phillips and other inmates want to block the new procedure, arguing that it will result in a painful and barbaric death.

December 29, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

"Clemency seeker to Obama: please don't forget us"

The title of this post is the headline of this new CNN commentary, authored by Alice Marie Johnson.  Here is how it gets started and concludes:

The week before Christmas, President Obama gave a second chance -- in the form of clemency -- to 231 people. I was not among them, but since many of them, like me, were incarcerated on drug-related charges, I feel I know their stories.  I am only one of thousands of first-time, non-violent offenders given a mandatory and lengthy prison terms after committing a crime under financial distress.

In 1996, I was given a death sentence without sitting on death row. I was convicted as a first-time nonviolent drug offender to life behind bars in federal prison.  Since I went to prison, the laws governing my wrong-doing have changed.  If I were convicted again today for the same crime, my life might look very different.

Last month, as I was preparing to put on a short play I wrote, entitled "The Strength To Be," a fellow inmate pulled me aside and gave me the news that the Obama Administration had just started announcing its next slate of clemencies.  My mind went racing. What if this could be my chance to be reunited with the outside world, to see my family or what is left of it?

For 20 years I have been incarcerated, and I won't lie, it's hard to keep the hope of freedom alive for that long.  But my faith in God has carried me this far.  Despite the impending announcement, I knew that the show had to go on. I channeled the uncertainty of my future into my play and danced a duet to Whitney Houston's song, "I Didn't Know My Own Strength."...

I want this part to be clear: I acknowledge that I have done wrong. I made the biggest mistake of my life to make ends meet and got involved with people selling drugs.  This was a road I never dreamed of venturing down.  I became what is called a telephone mule, passing messages between the distributors and sellers.  I participated in a drug conspiracy and I was wrong.

My trial took a toll on my family.  At the time of my conviction, I had two children in college and a senior in high school. Bryant, the senior, ended up dropping out of school because of the trial.  Tretessa had a good paying job with Motorola and was flying down to support me.  Members of the community were at my hearings encouraging me and hoping for the best.

But I was convicted on October 31, 1996 -- and sentenced to life in prison. The day after my oldest son Charles "celebrated" his 20th birthday.  It was his first birthday spent away from me. It's hard to imagine that I have now served 20 years of my life sentence for that one mistake.  The United States leads the world in incarceration rates, with five percent of the world's incarcerated population and one-quarter of the world's prisoners.  I am one of thousands of first-time, nonviolent offenders who were given mandatory lengthy prison terms.

During my two decades in here, I've become an ordained minister and a mentor to young women who are also in prison.  And if I get out -- I have a job secured, and plan to continue to help those in prison and work hard to change our justice system.  My daughter started a petition to President Obama asking him to grant me clemency, and more than 100,000 people have signed it.  It a source of strength and hope for me -- a chance to be free.

The President has made an incredible push at helping to right the wrongs of our criminal justice system.  I applaud him and hold out hope for me and thousands of others who face lifelong sentences for nonviolent crimes.  But with the historic Obama administration coming to an end, this could be a last chance at freedom for me and for many others -- so I also hope he moves quickly.  I hope his administration will process all the applications for clemency currently waiting for the President's review.

No matter what happens, I was not built to break. I will keep writing. I will continue to hold my head high and live a productive life either as a free woman or here behind bars.  God has shown me my strength.

December 29, 2016 in Clemency and Pardons, Drug Offense Sentencing, Prisons and prisoners, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Federal military execution seemingly on track for mass rapist/murderer

This CNN article, headlined "US military could carry out first execution in over 50 years," reports on some notable developments in a notable federal capital setting. Here are the interesting details:

A former US Army soldier who has been on death row since 1988 for raping and murdering several women could now face execution after a judge denied his bid for another stay of execution. Judge J. Thomas Marten of the US District Court for the District of Kansas wrote last week that a previously granted stay of execution to Ronald Gray was "no longer in effect," denying his request to further block the military from carrying out the death sentence.

If Gray is put to death, it will be the first military execution since 1961, when John Bennett was hanged at Fort Leavenworth prison in Kansas after he was convicted of raping and attempting to kill an 11-year-old Austrian girl. The current military method of execution is lethal injection.

Gray is one of six former servicemen currently on the military's death row at Fort Leavenworth. The most recent addition to that group is former Army Maj. Nidal Hasan, who was convicted of 13 counts of murder and 32 counts of attempted murder after his 2009 shooting rampage in Fort Hood, Texas.

Gray was convicted and condemned to death in military court in 1988 for two murders and three rapes in the Fayetteville, North Carolina, area while stationed at Fort Bragg and serving as a cook. He pleaded guilty in civilian courts to two other killings and five rapes....

Gray came close to being put to death in 2008, when then-President George W. Bush signed a warrant authorizing his execution. But a federal court gave Gray a last-minute temporary stay.

In 1983, a military appeals court found the death penalty to be unconstitutional because of problems with the armed forces' sentencing guidelines, but President Ronald Reagan soon after reinstated capital punishment in the military. The President has the power to commute a death sentence and no service member can be executed unless the President confirms the death penalty.

While no execution date has yet been set, Army regulations state that a could be set sometime in the next 30 days. Gray's lawyer could not be reached for comment.

December 29, 2016 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (4)

Wednesday, December 28, 2016

Dylann Roof tells federal judge he does not plan to present any evidence at penalty phase of his capital trial

As reported in this new AP story, "Dylann Roof told a judge Wednesday he doesn't plan to call any witnesses or present evidence to ask a jury to spare his life for killing nine black worshippers at a Charleston church in a hate crime." Here is more:

But there also is mystery evidence that Roof is working hard to make sure the public never sees in his federal death penalty trial.

Roof, who is acting as his own attorney in the penalty phase to prevent what he thinks would be further embarrassment to himself or his family, again was warned by U.S. Judge Richard Gergel at a hearing Wednesday that being his own lawyer was a bad idea. "That's your decision," Gergel told Roof. "I think that highlights my advice to you that you aren't served by being your own counsel."

Gergel told Roof to talk to his grandfather, who is a lawyer, and other family members one last time. He told Roof he has until the start of the penalty phase Tuesday to change his mind and hire his high-powered, publicly funded defense team back.

The same jurors who convicted Roof earlier this month on 33 counts including hate crimes and obstruction of religion will return next week to decide if he faces life in prison without parole or the death penalty.

Roof spoke for less than 10 minutes of the 35-minute hearing Wednesday. He told Gergel he does plan an opening and closing statement. He then told the judge he objects to prosecutors' plans to present a photograph of evidence in the court's possession. Roof, Gergel and assistant U.S. Attorney Jay Richardson all carefully tiptoed around saying what that evidence was. Gergel did say there was a hearing in which he decided it could be admitted in the penalty phase.

Roof also wanted a jailhouse statement left out of the penalty phase and evidence that involved his mother. No specifics were given. Gergel told Roof to go back to jail and write a motion for him to consider. Roof's ankle chain clanked as he walked back to the defense table in his jail jumpsuit.

Prosecutors also laid out their case. Most of the penalty phase will involve up to 38 people related to the nine people killed and the three people spared when Roof went into Emanuel African Methodist Episcopal Church on June 17, 2015, sat through a 45-minute Bible study in the fellowship hall, then fired 77 shots as many of the worshippers hid under tables.

Gergel, who complained during the guilt phase that prosecutors were repeating themselves at times with witnesses, said he will allow Richardson to call as many witnesses related to the victims as he wants. "The statute provides broad leeway for the victims to be heard, and I plan on honoring that," the judge said....

Gergel spent much of the hearing going over the format of the penalty phase with Roof, warning him several times he was likely doing himself no favors leaving his defense team as just advisers to file briefs. After saying he planned no witnesses, Roof told Gergel he was just answering the same question the judge had asked prosecutors. Gergel said that wasn't necessary. "Don't do them any favors," the judge said. "They aren't going to do you any."

December 28, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10)

Former Deputy AG Phil Heymann makes full-throated pitch for Justice Department to address Rubashkin case

Last month via this Wall Street Journal commentary, two former Justice Department officials Charles Renfrew and James Reynolds advocated for clemency for Sholom Rubashkin in a piece headlined "Obama Should Pardon This Iowa Kosher-Food Executive: Prosecutors overstepped, interfered with the process of bankruptcy and then solicited false testimony."  This week via this Washington Post commentary, LawProf and former Deputy AG Philip Heymann is making the case for Rubashkin while calling out the Justice Department's failure to address these matters.  The piece is headlined "107 former Justice officials think this case was handled unjustly.  DOJ must act."  Here are excerpts:

“You don’t just try to hammer everybody for as long as you can, because you can,” Deputy Attorney General Sally Yates told the New York Times. That is the right attitude for someone tasked with the fair administration of justice.  Unfortunately, Yates and Attorney General Loretta E. Lynch have, for the past year, rebuffed efforts by me and many other former senior Justice Department officials to even discuss another prosecution in which justice fell far short: the case of Sholom Rubashkin, a Brooklyn-born rabbi who was sentenced to 27 years for bank fraud.

Rubashkin, a 57-year-old father of 10, has already served seven years for the crime, which ordinarily merits no more than three years.  Worse, his sentence was based on perjured testimony and prosecutorial misconduct.

If even a few highly respected prosecutors think a particular case was handled unjustly, resulting in a vastly excessive sentence, the department’s representatives should be prepared at least to discuss the reasons.  In Rubashkin’s case, 107 former Justice Department officials, including five former attorneys general, six former deputy attorneys general (myself included), two former FBI directors, 30 former federal judges and other leading jurists, have sought to meet with senior officials of the department we once served.  The only response: a form letter from an assistant attorney general stating that no meeting could take place while Rubashkin was also pursuing his case in court.

Meanwhile, Kevin Techau, the U.S. attorney in Iowa (where Rubashkin was prosecuted), has suggested that Rubashkin used his financial resources to buy the support of so many prominent justice officials. Not only has Rubashkin lost everything he owned in this case, his wife and children now depend heavily on the support of their community for their needs.  Moreover, all 107 of us are working on this pro bono.  Among other things, former deputy attorneys general Larry Thompson, Charles Renfrew and I have traveled to distant meetings and volunteered considerable time to this matter, all on our own nickel.

The facts are clear: Rubashkin was vice president of Agriprocessors, a kosher meatpacking plant based in Postville, Iowa.  In May 2008, more than 500 federal immigration agents raided the plant and arrested hundreds of undocumented workers.  The raid resulted in the company declaring bankruptcy.  Rubashkin was arrested a short time later and charged with bank fraud.  And this is where things went terribly wrong.  The sentence for bank fraud depends on the amount of the loss to creditors. In this case, the prosecution deliberately increased the amount of the loss — and thus the length of Rubashkin’s sentence....

I am saddened by the unwillingness of the department’s senior leaders to even discuss the injustice that more than 100 of their predecessors and former judges find evident in the Rubashkin case.  Experienced former prosecutors and career Justice Department officials view this case as a stain on an institution created to uphold the law.  If the department’s leadership refuses to act, I hope President Obama pardons Rubashkin and ends this tragedy. The alternative is a display of either blind self-righteousness or frightened defensiveness that is inconsistent with the Justice Department we all have served and respected.

December 28, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (6)

Tuesday, December 27, 2016

New York Times made yet another editorial pitch for judicial abolition of the death penalty

Today's New York Times has this editorial headlined "The Continuing Collapse of the Death Penalty." Here are excerpts:

Piece by piece, the death penalty continues to fall apart. Last week, the Florida Supreme Court invalidated between 150 and 200 death sentences — nearly half of all those in the state — because they were imposed under a law the United States Supreme Court struck down as unconstitutional in January.  The law, which required judges and not juries to make the factual findings necessary to sentence someone to die, violated the Sixth Amendment’s guarantee of a jury trial. “A jury’s mere recommendation is not enough,” Justice Sonia Sotomayor wrote for an 8-to-1 majority.

The Florida decision is the most recent sign, in a year full of them, that the morally abhorrent practice of capital punishment is sliding into the dustbin of American history — where it should have been long ago.

Juries around the country imposed 30 death sentences in 2016, a 40 percent drop from last year and fewer than at any time since the Supreme Court reinstated capital punishment in 1976, according to a report by the Death Penalty Information Center, a research group that opposes capital punishment.  Twenty people were executed this year, the lowest number in a quarter-century.

The practice is not only increasingly rare, it is concentrated in an extremely narrow slice of the country. Only five states carried out executions in 2016, the report found, and only five imposed more than one death sentence. California sentenced nine people to die, the most of any state, but no one has been put to death there since 2006.

Public support for the death penalty keeps dropping, too — falling below 50 percent for the first time in more than four decades, according to a Pew Research survey. Support falls even further when respondents are given the alternative of a long prison term like life without parole.  Though voters in California, Nebraska and Oklahoma last month preserved the death penalty, the overall trend is toward growing discomfort with state-sanctioned killing.

The total abolition of capital punishment, however, will depend on the Supreme Court’s reading of the Eighth Amendment’s ban on cruel and unusual punishments.  So far, only one current member of the court, Justice Stephen Breyer, a regular critic of the death penalty, has expressed openness to examining this question....  Justice Breyer is asking the right questions. It is up to a majority of his colleagues to listen closely and bring the only just result: the permanent abolition of capital punishment in America.

December 27, 2016 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (13)

Making the fiscal, anti-government-waste case against excessive incarceration

This commentary authored by a business columnist in Texas makes a "government waste" case against having too many persons in prison.  The piece is headlined "Misused prisons waste capital, labor and real estate," and here is how it gets started:

An executive can commit no greater sin in business than to misuse capital, labor or real property, the foundations of wealth. No government program wastes all three more than the prison system, where taxpayer money is spent to lock people up in publicly owned facilities. That's why societies must make sure prisons are used only for those we fear, and not for those with whom we are only angry.

Texas, though, spends too much money imprisoning people who should be rehabilitated by other means, according to Bill Hammond, president and CEO of the Texas Association of Business. The state's chamber of commerce has joined conservative and liberal organizations to create the Smart-on-Crime Coalition to demand better. "Texas has the largest prison population of any state in the country. Nearly 145,000 are incarcerated, and a significant percentage of those are low-level offenders. People who are being held for violating parole or minor drug crimes," Hammond said. "Violent criminals, rapists and sexual offenders do belong in prison. However, there are some people whom we do not think belong in prison because of the cost."

Texas spends about $3 billion a year on prisons. Keeping someone behind bars costs about $50 a day, compared with $3 a day for supervised probation. With Texas lawmakers facing an $8 billion shortfall to maintain the current level of government services in 2018-2019, they need to find savings, and criminal justice is overdue for an overhaul.

Hammond explained at an Austin news conference that it's not just about saving taxpayer money, though. It's about keeping nonviolent offenders employed and providing for their families while making restitution. Diversion programs and alternative sentencing can also force offenders to get treatment for drug addiction and mental health problems that underlie most crimes today. "You are talking about individuals who are working, who are paying taxes, who are paying child support. They should be part of the community and part of the workforce instead of rotting in some prison at a high cost to taxpayers," Hammond said.

December 27, 2016 in Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2)

Monday, December 26, 2016

Reports of now five names atop Prez-Elect Trump's SCOTUS short-list

Ten days ago in this post I reported on reports that federal circuit judges Diane Sykes and William Pryor were among the top contenders to be named by Donald Trump to replace Justice Scalia. Now, via How Appealing and Jan Crawford at this link, the latest buzz about the short list has now also added the names of circuit judges Thomas Hardiman and Steve Colloton, and Michigan Supreme Court Justice Joan Larsen.

I know a little bit about the sentencing "history" of many of these folks, but I am disinclined to talk up (or criticize) this history unless and until we go from short-list speculations to an actual nominee.  But if others want to praise or pillory any of these folks.....

A few prior related Trumpian SCOTUS posts:

December 26, 2016 in Who Sentences? | Permalink | Comments (17)

The latest data from BJS on parole and probation populations throughout the United States

Not long ago, the Bureau of Justice Statistics released this report, titled "Probation and Parole in the United States, 2015," providing the latest official data on offenders under community supervision throughout the nation. Here are some data highlights from the report:

December 26, 2016 in Criminal Sentences Alternatives, Data on sentencing, Detailed sentencing data, Reentry and community supervision | Permalink | Comments (1)

"Society must not forget those it incarcerates"

The title of this post is the headline given to this new commentary authored by my colleague Steven Chanenson (who is also co-managing editor of the Federal Sentencing Reporter and a former chair of the Pennsylvania Commission on Sentencing). Here are excerpts:

Prisons are usually hidden and often grim places. Supreme Court Justice William J. Brennan, Jr.'s observation nearly 30 years ago still rings true today: "Prisoners are persons whom most of us would rather not think about. Banished from everyday sight, they exist in a shadow world that only dimly enters our awareness." It should not and need not be that way.

Although there is a vigorous debate over when and to what extent they should be used, prisons are a key public safety tool. Whenever used, incarceration must be effective, safe, and humane. Prisoners are not popular, but how we treat our criminals is, in the words of Winston Churchill, "one of the most unfailing tests of the civilization of any country."

Society has a right and an obligation to protect itself, but it needs to do so while considering both the short- and the long-term consequences for all involved. Most prisoners eventually return to our communities.  Last year, almost 20,000 people were released from the Pennsylvania Department of Corrections.  They are once again our neighbors across the commonwealth.

Thus, it is in everyone's interest for people who return from prison to come back better equipped to succeed than when they arrived there. If we want to slow the revolving door of incarceration and crime, we must provide meaningful access to treatment, training, and, yes, hope. We must hold the prisons accountable for meeting those goals, including through independent oversight. Both society and the inmates themselves deserve no less.

We must also celebrate the positive work done in prisons. One especially bright ray of hope was on display this month at the State Correctional Institution at Chester. The inmates and staff at the Chester prison partnered with other stakeholders to present a series of TEDx talks focused on the children of incarcerated parents....  Under the able leadership of Corrections Secretary John Wetzel, this was the fourth set of TEDx talks from a Pennsylvania prison. Like the earlier sessions, the discussions in Chester highlighted challenges faced and progress made by the speakers. While talking about the more than 81,000 Pennsylvania children who have a parent in a Pennsylvania prison, they provided a glimpse of some constructive energy that may eventually benefit those of us outside the prison walls....

Particularly during the holiday season, many of us think about the humanity of our fellow men and women.  That is a sentiment we should nurture. We need to remember people in prison, how they are treated and what will happen to everyone when they return to our neighborhoods.  There was a clear demonstration of hope — for safer communities and our collective humanity — at the State Correctional Institution at Chester.  For that, we should all be thankful.

December 26, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Sunday, December 25, 2016

Fulsome (and incomplete) criticisms of Prez Obama's fulsome (and incomplete) clemency efforts

Liliana Segura has this lengthy new Intercept commentary headlined "Obama's Clemency Problem – And Ours."  I recommend the full piece and here are some excerpts:

President Obama broke his own remarkable clemency record [last week], granting an unprecedented 231 commutations and pardons in a single day. Headlines and tweets broadcast the historic tally; on the White House website, a bar graph tracks Obama’s record to date, which has dramatically outpaced that of his predecessors. With a total of 1,176 recipients, the White House boasted, Obama has granted clemency “more than the last 11 presidents combined.”

The president certainly deserves credit for making clemency a priority before leaving office....  Those who make the cut are, as the White House put it this week, “individuals deserving of a second chance.”  Many have been serving long mandatory minimum sentences for nonviolent drug offenses, crimes for which they have shown remorse.  Applications list courses completed, prison jobs maintained, records untarnished by disciplinary write-ups. Last spring, Obama highlighted a handful of men and women who “have made the most of their second chances,” describing their ability to leave prison, get a job, and piece their lives back together as “extraordinary.”

With his legacy and the politics of crime in mind, it makes sense that Obama would be cautious with his commutations, while amplifying the success stories. Yet there’s something disingenuous in the now-familiar rhetoric peddled by the White House with every clemency announcement, which repeatedly tells us we are a “nation of second chances.” Even within the narrow scope of Obama’s clemency initiative — and putting aside his treatment of immigrants and whistleblowers — this is wishful thinking at best.  As Obama himself has written in his congratulatory letters to clemency recipients, “thousands of individuals have applied for commutation, and only a fraction of these applications are approved.” Before the latest round of pardons and commutations, Obama had rejected nearly 14,000 clemency applications....

[W]hen it comes to the president’s pardon power — the one place where Obama could directly address the problem — there are few signs of a transformation.

Instead, the White House has promoted a story about exceptionalism: The president has proven exceptionally merciful and the clemency recipients are uniquely deserving — even extraordinary.  If the former is true, it is only because we have set the bar so low. As for the latter, it is certainly no small thing to survive — even thrive — while serving some of the harshest prison sentences in the world. But praising such men and women as exceptional diminishes the vast human potential that exists behind bars.  As one clemency recipient told me last month, recalling an exchange with the former White House pardon attorney, “I have a list of names of people I would like to see come home. But there are even more people who I’ve never met.  To give a list of names would exclude too many people.”...

On the same day activists published their letter exhorting Obama to expand his clemency efforts, the American Civil Liberties Union released a report titled “False Hope: How Parole Systems Fail Youth Serving Extreme Sentences.” Documenting how states routinely deny release to those eligible for parole, the ACLU offers numerous profiles of men and women sent to grow up (and in many cases, to die) in prison, whose efforts to prove their value as adults have been repeatedly rebuffed.  The stories are all too familiar.  They show how poverty, neglect, trauma, and mental illness factor into the lives of young people arrested for violent crimes.  They also show how harshly we continue to punish such youth, first with decades in prison, and then with repeated refusals to grant parole, no matter how much they change in the years that follow — or how much evidence shows that older people “age out” of crime.  People of color are seen as even less amenable to rehabilitation. Today, despite the wide rejection of the “superpredator” myth, state parole boards show very little mercy to people serving sentences that grew out of such racist hysteria.

As with Obama’s clemency initiative, the problem is largely political: Nobody wants to be the person to free an individual who might go out and commit another crime, even if it has been decades since the original offense — and even if the sentence was disproportionate to begin with.  What’s more, the ACLU notes, by focusing on the original crime, “parole board members may never know about the success stories: people convicted of serious crimes who, once released, have become successful community leaders supporting themselves and their families, who grew up and moved beyond the worst thing they ever did.”

One bright spot of Obama’s clemency initiative has been in these very kinds of success stories — publicized in the press and by the White House itself. But in the absence of a deeper rethinking of what we consider a second chance, such anecdotes are no match for generations of fear mongering that has entrenched fear of violent criminals into our very psyche, even at times when crime has hit historic lows....

Just a few days after the ACLU report on parole, the Washington Post unveiled a front-page, four-part investigative series called Second Chance City, which examined a D.C. law called the Youth Rehabilitation Act.  Passed in 1985, the law aimed to give judges discretion in handling juvenile cases — including by circumventing mandatory minimums — to allow deserving young people to avoid harsh punishment and, ultimately, expunge their record.  The Post series raised alarm, finding dozens of cases where beneficiaries of the law had gone on to commit new, often violent offenses, and describing the crimes in dramatic detail....

Most counterproductive was the framing of the series, placed squarely as a counterpoint to efforts at prison reform on Capitol Hill. “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,” the authors write, “D.C. law enforcement officials are increasingly concerned about the number of repeat violent offenders on the streets.”

The media should certainly scrutinize attempts at reform, pointing out where they fail. But the Post series was a reminder of how quickly we revert back to old narratives about crime, to convince ourselves that more imprisonment will keep us safe. With the real fights over prison reform happening at the state and local level — over things like the Youth Act — any efforts by the president were always going to be limited.  But if the pendulum is to swing back toward a more punitive era, as many fear it will under Trump, Obama must do as much as he can now to preserve the legacy he has carved out.

But beyond Obama — and if we are to make a dent in mass incarceration — Americans must also begin to think much bigger than his administration ever did. We should refuse to let the same government that gave us mandatory minimums define what counts as a “second chance.” We must stop letting our leaders — whether the president or a parole board — divest their responsibility to remedy draconian punishments by placing the burden on people who never should have received them in the first place. Ending mass incarceration will require mercy, but fundamentally it is about justice.  And the state has not even begun to account for its own mistakes.

I credit Segura for noting and lamenting that what's most remarkable about Prez Obama's clemency efforts are how non-transformative they are. Despite lots of advocacy from lots of advocates for the development of a new structure for clemency decision-making, Prez Obama has barely tweaked the status quo in order to better discover a few thousand prisoners with extreme prison sentences that could be shortened. Prez Obama merits praise and credit for doing something, but that something is largely a last-minute tweak rather than a timeless transformation.

The story of clemency here is a variation on the broader drug war reality throughout the Obama years. As of 2013, then-AG Eric Holder started talking up a new "Smart on Crime" initiative. But, despite this useful talk and some tweaked approaches to federal prosecutions, Prez Obama's Department of Justice for all eight years of his presidency continued to prosecute, on average, 20,000 new federal drug cases each year even though there is still little evidence that severe federal drug sentences for nonviolent drug offenders help reduce drug crime or violent crimes. (Of course, the prior decade saw on average 25,000 federal drug prosecutions, so the Obama DOJ can claim credit for being a lesser evil.) Running these numbers, if Prez Obama commuted 2000 federal drug sentences each and every year he was in the Oval Office, through the work of his DOJ, he still would be responsible for a net addition of 18,000 federal drug sentences each and every year.

Put simply, at the margins, Prez Obama left federal criminal justice matters somewhat better than he found them. But the federal criminal justice system continues to need a wide array of reforms that go, in my mind, far beyond the margins.

December 25, 2016 in Clemency and Pardons, Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Holiday pitch from NY Times editorial board for "Cutting Prison Sentences, and Costs"

With Christmas on a Sunday this year, I will have to guess whether it was a holiday spirit or an end of year spirit that inspired this new New York Times editorial headlined "Cutting Prison Sentences, and Costs."  Here are excerpts, with a little commentary to follow:

States across the country have rushed to trim prison costs by backing away from the draconian sentencing policies that drove up the national prison population from 200,000 at the start of the 1970s to a peak of about 1.6 million in 2009.  While the total inmate population has declined by 2.9 percent since then, several states that approached reform more aggressively have already reduced their prison populations by far more. California, New Jersey, New York and Rhode Island have done so by more than 20 percent.

These states have shown that it is possible to shorten sentences — or divert offenders to community supervision — without compromising public safety.  But even bolder reforms to the sentencing system will be necessary to bring the prison census down to where it should be and reverse the corrosive effects of mass incarceration....

A new report by the Brennan Center for Justice at New York University School of Law provides a blueprint for further reforms.  It calls on states to mandate alternative sentences like drug treatment, probation or community service for low-level crimes like drug possession, minor drug trafficking, minor fraud, forgery and theft, which account for 25 percent of the nation’s prison population.  Judges would have the flexibility to hand down prison sentences in exceptional circumstances, as in the case of serious, repeat offenders.

The report also recommends a reduction in sentences for major crimes that account for a majority of the prison population — aggravated assault, murder, nonviolent weapons offenses, robbery, serious burglary and serious drug trafficking. (Under such a system, the typical inmate convicted of, say, robbery would serve 3.1 years, as opposed to 4.2.)  If these reforms were retroactively applied, the authors estimate, more than 200,000 people serving time for these crimes would be eligible for release.

Under a saner system, the report says, nearly 40 percent of the country’s inmate population could be released from prison without jeopardizing public safety. This would save states $200 billion over the first 10 years — enough to hire 270,000 new police officers, 360,000 probation officers or 327,000 teachers.

The preliminary reforms that many states already have enacted reflect a growing realization that mass incarceration is economically unsustainable and socially disastrous. But to reverse four decades of bad policy, state lawmakers will have to adopt a more decisive and systematic approach to sentencing reform.

Though I am inclined to embrace the essential elements of this editorial, it strikes me as politically and practically tone-deaf in many respects. Politically, the editorial could and should have emphasized the significant number of "red states" that have reduced their prison populations, states like Texas and Georgia and South Carolina and Mississippi. Practically, the editorial could and should have acknowledged that some violent crime (especially murder) and heroin problems have been increasing in recent years, which in turn suggests and demands that states and the federal government focus on fighting crime smarter and not just tougher.

December 25, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)

Saturday, December 24, 2016

Louisiana appeals court find LWOP sentence unconstitutionally excessive for fourth minor offense

As reported in this lengthy local article, headlined "Appeals court vacates 'unconscionable' life sentence for New Orleans man over theft of $15 from 'bait vehicle'," this past week brought a notable state constitutional ruling from the Louisiana Fourth Circuit Court of Appeal. Here are the basics from the press report:

Walter Johnson was walking down a street in Uptown New Orleans a week before Thanksgiving in 2013 when he noticed a Jeep Cherokee with the driver's side window down.  He glanced inside and saw a laptop and $15 in cash -- a $10 bill and a $5. Johnson snatched the bills.  He left the computer.

As it turns out, the Jeep was a law enforcement "bait vehicle," and Johnson was the catch of the day.  He was found guilty of simple burglary and illegal possession of stolen things at a trial in April 2015, and Orleans Parish District Attorney Leon Cannizzaro's office promptly invoked the state's habitual-offender law.

Johnson, who had prior convictions for simple burglary, heroin possession and cocaine distribution, was deemed a four-time felon.  Criminal District Court Judge Karen Herman sentenced him in October 2015 to a mandatory life prison term with no parole.

But on Wednesday, an appeals court panel threw out Johnson's life sentence, finding his street heist "shockingly minor in nature," the amount "extraordinary in its triviality" and Johnson's life sentence an "unconscionable" punishment that "shocks our sense of justice."  The appeals court sent the case back to Herman, telling her to resentence Johnson "to a term that is not unconstitutionally excessive."

The 10-page opinion, written by 4th Circuit Court of Appeal Judge Paul Bonin, marks the latest bid to limit the discretion that state law grants prosecutors to ratchet up sentences for low-level drug offenders and other nonviolent criminals with multiple convictions.

Judges have little control over such decisions, and the Louisiana Supreme Court has been loath to step on the Legislature's toes by overriding one of the nation's stiffest habitual-offender laws.  The state's high court has ruled that departures below the law's mandatory minimum sentences must be limited to "exceedingly rare" cases.

But occasionally it has seen fit to do so. Last year, for instance, the Supreme Court found a 30-year sentence "unconscionable" for Doreatha Mosby, a 73-year-old New Orleans woman who was found with a crack pipe tucked in her bra. Yet in the case of Bernard Noble, a father of seven who was found with the equivalent of two joints of marijuana, the court found he wasn't unusual enough to allow a sentence below the mandatory 13-year minimum under the statute.

Both of those cases, as well as Johnson's, came out of Orleans Parish, where Cannizzaro employs the habitual-offender law far more than any other prosecutor in the state. In 2015, Cannizzaro's office sent 154 convicts off to long prison sentences under the statute — almost one of every four offenders who were shipped to state prisons from New Orleans that year, according to state data analyzed by the Pew Charitable Trusts.

"You're dealing with different crime problems, socioeconomic levels, and you're dealing with different judges, different sentencing dispositions," Christopher Bowman, a spokesman for Cannizzaro's office, said in explaining the office's penchant for deploying the statute. "If you were dealing with a situation where a prosecutor feels probation is being given too freely, then the district attorney is required to use the habitual-offender law."

The full majority ruling in Louisiana v. Johnson is available at this link.  Notably, the rule s based on the Louisiana state constitutional provision prohibiting "cruel, excessive, or unusual punishment." La. Const. art. 1, § 20. Here is one notable passage (with some cites removed) from the Johnson decision:

Despite its legality, however, we find the life-without-parole sentence imposed upon Mr. Johnson unconstitutionally excessive.  Mr. Johnson reached into the open window of a bait-vehicle and took fifteen dollars.  He is now condemned to die in prison for that crime.

We acknowledge that Mr. Johnson's life sentence, under the habitual offender law, is intended as punishment not only the current conviction, but all prior convictions as well.  Legitimate sentencing goals notwithstanding, Mr. Johnson's status as a fourth felony offender "cannot be considered in the abstract."  Solem, 463 U.S. at 296.  As previously noted, the trial judge found that all his prior felonies were for nonviolent crimes.  And the instant offense, the one which set in motion the habitual offender proceedings, is shockingly minor in nature.  No person was harmed, nor any property damaged.  Had Mr. Johnson taken the fifteen dollars but not by entry into a vehicle or other structure listed in the simple burglary statute, he would have been convicted of misdemeanor theft.

December 24, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Reviewing the unique issues and challenges for sentencing ISIS sympathizers

A helpful colleague made sure I did not miss this interesting new Wall Street Journal article headlined "ISIS Sentences Pose Challenge for Judges." The subheadline highlights the main theme of the piece, "U.S. judges grapple with how to punish young Islamic State sympathizers who could become more dangerous after decades in prison," and here are excerpts:

Federal judges this year faced the unprecedented challenge of sentencing dozens of Islamic State supporters across the country, with punishments ranging from no prison time to decades behind bars.

In Minnesota, 20-year-old Khaalid Abdulkadir received three years probation for tweeting threats to kill federal law-enforcement officers after one of his friends had been arrested for providing support to Islamic State. In Ohio, 22-year-old Christopher Cornell received 30 years in prison for plotting to attack the U.S. Capitol in Washington on the terrorist group’s behalf.

The wide range reflects the difficult question at sentencing in many of these cases: Should judges give young Americans who support Islamic State a chance to turn their lives around, or a lengthy prison sentence to ensure public safety?

For the most part, judges are choosing to be cautious, although some have begun considering alternatives to prison. Of the 39 Islamic State defendants who have been sentenced so far, the average prison sentence has been 13 years, according to Fordham University’s Center on National Security.

Since 2014, more than 110 suspected Islamic State sympathizers have been prosecuted in the U.S. for a broad array of criminal activities, including making false statements to the government and traveling overseas to fight with terrorists. Roughly half of these cases have resulted in convictions, while the other half are pending, according to Fordham. Several sentencings are scheduled to happen next year, including one in Brooklyn, N.Y., for Tairod Pugh, who was the first Islamic State sympathizer in the U.S. to be convicted at trial.

No Islamic State supporter in the U.S. has received a life sentence yet. Most defendants are arrested before they commit violence and charged with providing “material support” to terrorists, which carries a maximum 20-year sentence....

More than a quarter of the sentences have occurred in Minneapolis, whose large Somali population has been a target in recent years for terrorist recruitment. In an unprecedented move, one federal judge there, Michael J. Davis, last summer asked six defendants to undergo an evaluation before sentencing to see if they could be good candidates for a “deradicalization” program.

Judge Davis ultimately allowed only one defendant, 20-year-old Abdullahi Yusuf, to be released to a halfway house, where he could receive counseling and family group therapy. For another defendant, 22-year-old Guled Omar, who was convicted at trial of conspiring to commit murder in Syria, Judge Davis imposed 35 years in prison, the harshest sentence so far in an Islamic State case.

The deradicalization effort has caught the attention of judges around the country. In Anaheim, Calif., a federal judge in October raised the possibility of assigning such a program to 26-year-old Muhanad Badawi, who was convicted at trial for helping a friend who wanted to join Islamic State overseas. Mr. Badawi ultimately received 30 years in prison.

Most Islamic State defendants are between the ages of 18 and 26 at the time of their arrest, which means many of them don’t have a criminal history and could become more dangerous after decades in prison, some lawyers say. On average, Islamic State supporters under the age of 21 have been receiving lighter sentences, according to Fordham.

Still, most judges tend to impose the harshest sentence possible under the law for terrorist defendants. Terrorism, unlike other types of violent offenses, is a crime in which law-enforcement officials feel there can be no room for error. No judge wants to be the one who gave a lenient sentence to someone who ends up committing a terrorist attack.

December 24, 2016 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Friday, December 23, 2016

Seeing the state of criminal justice reform through the lens of state reforms

Though the federal criminal justice system always gets lots of attention, the reality is that most of the real criminal justice "action" takes place at the state (and local) level.  Consequently, this Medium commentary by Jenna Moll, Deputy Director, U.S. Justice Action Network, titled "2016: States Home to Success on Effective Justice Reforms," serves as a useful year-end review of the state of our criminal justice reform union. Here is how the lengthy piece gets started, its middle headings, and its ending:

In 2016, the U.S. Justice Action Network made an aggressive push in 12 states to safely reform sentencing laws, reduce mandatory minimums, expand effective treatment and rehabilitation options, and improve the reentry process for returning citizens in our justice system.

With more than 1.3 million of the Americans currently behind bars in state facilities, our state work is crucial in order to actually impact the country’s incarceration rate. And every time we add another state, red or blue, to our list of successes, we make it harder for Congress to ignore the bipartisan calls for action.

The reason for our success is no secret but it is unique. We have used our right-left coalition and national allies to bring together law enforcement officials, faith-based community leaders, and stakeholders from all walks of life who recognize the pressing need to make changes.

We’ve had great successes throughout the year — and we haven’t taken our foot off the gas yet. Just last week in Ohio, the legislature passed fixes to the civil asset forfeiture system in the state that better protect due process and property rights for Ohio residents. A victory, right before the buzzer in 2016. Here’s where we and our allies made the most progress this year:

Removing Barriers to Employment...

Changing Laws, Changing Lives...

Refocusing Our Justice System ...

Bringing State Successes to D.C....

Looking ahead, we’re already focused on long-term success, educating lawmakers and interest groups in states and pressing them to coalesce around robust legislative recommendations that can make the change voters seek. We’re involved in this process across the country — in Illinois with the bipartisan State Commission on Criminal Justice and Sentencing Reform, in Louisiana and Pennsylvania with their Justice Reinvestment Initiatives, and in Ohio through the Criminal Justice Recodification Committee.

In 2016, a clear roadmap for passing successful reforms at the state level was created, strengthened, and expanded. We know that by harnessing the power of bipartisan, state-based coalitions and engaging law enforcement, the business community and faith leaders, we can set the agenda for justice reform and gain a consensus that few other issues can achieve in the current political climate. That’s why in 2017, our organization is continuing efforts in almost a dozen states and expanding our efforts on the state level to include Tennessee, Texas, and Wyoming.

At times, progress on the legislative level seems to move at a snail’s pace, in light of the overwhelming levels of bipartisan support from voters. But it’s clear that 2016 was a successful year for the justice reform movement at the state level. Across eleven states, we’ve seen thirty-six bills that we and our coalitions championed signed into law by Governors from the right and the left, and we are incredibly proud of this work. And even more proud of those allies with whom we’ve had the honor of standing side-by-side.

I call that progress — and I look forward to even more in 2017.

December 23, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Thursday, December 22, 2016

Continuing to track a continuing rise in homicide rates and violent crime

This week brought two notable new data points to reinforce the disconcerting reality that homicide and violent crime are on the rise in significant portions of the United States.  This Wall Street Journal article has a headline capturing the deadliest part of this story: "Homicides Rose in Most Big Cities This Year: Sixteen of the 20 largest police departments saw a year-over-year increase." This piece starts this way:

Homicides rose in most big American cities in 2016, continuing a worrisome trend for police and criminologists that began last year, even as murder rates in most cities are nowhere near the levels of two decades ago.

Sixteen of the 20 largest police departments reported a year-over-year rise in homicides as of mid-December, a Wall Street Journal survey found. Some notched minor increases, while Chicago has experienced one of the most dramatic jumps, with more than 720 murders — up 56% from 2015.

Chicago’s homicide count, greater than the considerably larger cities of Los Angeles and New York combined, marks a grim tally not seen since the violent drug wars of the 1990s.  As the bodies in Chicago pile up — including that of Nykea Aldridge, cousin of basketball star Dwyane Wade, shot while walking with her baby in broad daylight — police are struggling to solve the killings, clearing only one in five homicides so far this year.

Nationally, 37 of the 65 largest police agencies, including ones in San Antonio, Las Vegas and Memphis, Tenn., reported year-over-year homicide increases as of Sept. 30, the Major Cities Chiefs Association said. In 2015, 44 departments reported increases, many for the first time in years.

The folks at the Brennan Center are also on this beat, as evidence by this new publication, titled simply "Crime in 2016: Updated Analysis," which is summarized this way:

In September, the Brennan Center analyzed available crime data from the 30 largest cities, projecting that by the end of 2016, these cities would see a nearly unchanged rate of overall crime and a slight uptick in the murder rate.  That report concluded that while concerns about “out of control” crime rates were premature, the data “call attention to specific cities, especially Chicago, and an urgent need to address violence there.”

This report updates these findings, incorporating more recent data. Updated Tables 1 and 2 show conclusions similar to the initial report, with slightly different percentages:

  • The overall crime rate in the 30 largest cities in 2016 is projected to remain roughly the same as in 2015, rising by 0.3 percent. If this trend holds, crime rates will remain near historic lows, driven by low amounts of property crime.

  • The violent crime rate is projected to increase slightly, by 3.3 percent, driven by increases in Chicago (17.7 percent increase) and Charlotte (13.4 percent increase). This is less than the 5.5 percent increase initially projected in the September report. Violent crime still remains near the bottom of the nation’s 30-year downward trend.

  • The 2016 murder rate is projected to be 14 percent higher than last year in the 30 largest cities. Chicago is projected to account for 43.7 percent of the total increase in murders. The preliminary 2016 report identified some reasons for increasing violence in Chicago, such as falling police numbers, poverty and other forms of socioeconomic disadvantage, and gang violence. A similar phenomenon occurred in 2015, when a group of three cities — Baltimore, Chicago, and Washington, D.C. — accounted for more than half of the increase in murders. This year Baltimore and Washington, D.C., are projected to see their murder rates decline, by 6 percent and 18.6 percent, respectively.

  • An increase in the murder rate is occurring in some cities even while other forms of crime remain relatively low. Concerns about a national crime wave are still premature, but these trends suggest a need to understand how and why murder is increasing in some cities.

I am pleased to see that the Brennan Center is not trying to wish away what is now a two-year uptick in homicides, and I share the view that "these trends suggest a need to understand how and why murder is increasing in some cities."  This is whay I am very hopeful (but, candidly not all that optimistic) that Prez-elect Trump with follow-up on his campaign promise (noted previously here) to work with Congress to create a task force on violent crime during his first 100 days in office.

December 22, 2016 in Criminal justice in the Trump Administration, National and State Crime Data, Offense Characteristics | Permalink | Comments (7)