Tuesday, November 29, 2016
Will more than just a handful of condemned murderers be impacted by latest SCOTUS review of capital punishment disability limits?
The question in the title of this post is my indirect effort to get a quantitative notion of the import and impact of the Texas case, Moore v. Texas, being heard by the US Supreme Court this morning. The folks at SCOTUSblog have this helpful round-up of some recent previews and commentaries on this case:
Today, the court will hear oral argument in Moore v. Texas, which asks whether Texas can rely on an outdated standard in determining whether a defendant’s intellectual disability precludes him from being executed. Amy Howe previewed the case for this blog. Another preview comes from Karen Ojeda and Nicholas Halliburton for Cornell University Law School’s Legal Information Institute.
Additional coverage of Moore comes from Nina Totenberg at NPR, who notes that “the state’s test is based on what the Texas Court of Criminal Appeals called ‘a consensus of Texas citizens,’ that not all those who meet the ‘social services definition’ of ‘retardation’ should be exempt from the death penalty,” and from Steven Mazie in The Economist. In an op-ed in The Washington Post, Carol and Jordan Steiker argue that rather than “relying on the same approach to intellectual disability that Texas uses in every other context (such as placement in special education or eligibility for disability benefits),” the state appeals “court sought to redefine the condition in the capital context so that only offenders who meet crude stereotypes about intellectual disability are shielded from execution.”
Efforts by Texas to execute intellectually disabled murderers strike very close to home for me because I was actively involved in representing and trying to prevent the execution of Terry Washington back in 1996-97 when there was not yet a constitutional restriction on application of the death penalty for those with certain intellectual disabilities. I got involved in the Washington case pro bono during my last few months as an associate at Paul, Weiss, Rifkind, Wharton & Garrison in NYC. I had the opportunity to help author a cert petition to SCOTUS and a clemency petition to then-Texas-Gov. George W. Bush in which we asserted on Terry's behalf that the ineffectiveness of trial counsel and his intellectually disabilities (which were then called mental retardation) justified sparing him from the ultimate punishment of death.
Terry Washington was sentenced to death for the stabbing murder of a co-worker at a restaurant in College Station, Texas. As the case was litigated through the federal habeas courts in Texas, there was no real dispute over Terry's mental disabilities because considerable evidence from his childhood indicated diminished mental capacities and in two IQ tests after his initial sentencing to death Terry scored 58 and 69. But Terry's case was tried in the 1980s when it was not considered ineffective for counsel to fail to investigate and present mitigating mental health and family background evidence. In the words of the Fifth Circuit rejecting a final habeas appeal in 1996, counsel made "a reasonable strategic decision not to investigate Washington's mental health by retaining a mental health expert or to present evidence of Washington's mental health and family background at the punishment stage of trial." Washington v. Johnson, 90 F.3d 945 (5th Cir. July 25, 1996) (available here).
I cannot help but think of Terry Washington today because I recall drafting sections of the cert petition and clemency petition making the case for a categorical ban on the execution of persons with (as called then) mental retardation. Unfortunately for Terry, the Supreme Court would not embrace the constitutional position we pushed on his behalf until 2002 when it ruled in Atkins v. Virginia that the Eighth Amendment's prohibition on cruel and unusual punishment bars the execution of individuals who are intellectually disabled. (According to this DPIC accounting, 44 persons with intellectual disabilities were executed between 1976 and the SCOTUS Atkins ruling in 2002.) Based on the medical records and supporting evidence, I now believe that Terry would have indisputably been shielded from execution by Atkins even though Texas has been trying its best since Atkins to limit the number of condemned murderers who get shielded from execution by its holding.
Returning to the Moore case now before SCOTUS (with the Terry Washington case still on my mind), I sincerely wonder how many persons on death row in Texas or in other states are currently in the doctrinal/proof gray area that the Moore case occupies. My sense is that most defendants with obvious disabilities have had their sentences reduced based on Atkins, and this DPIC accounting hints that maybe as many as 100 condemned murderers have gotten off of death rows in many states thanks to Atkins. But in Moore it seems like evidence of disability is sufficiently equivocal and the legal standards sufficiently opaque that SCOTUS has to clean up some post-Atkins doctrinal mess. For Bobby James Moore, this is obviously now a matter of life and death. But can we know how many other of the roughly 2500 persons now under serious sentences of death nationwide will be potentially impacted by the Moore decision?
November 29, 2016 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)
Making the case that the next Administration needs to demonstrate that "laws are not just for the little people"
Writing here in the National Review under the headline "A Memo for Attorney General Jeff Sessions," former Justice Department officials Robert Delahunty and John Yoo share some interesting advice for the likely next AG. I recommend the lengthy piece in full, and here is just a taste:
Hillary Clinton’s alleged criminality was a centerpiece of the last election and may well have cost her the presidency. It was not very long ago that crowds at Trump rallies were chanting “Lock her up!” We can think of no earlier presidential contest in which a candidate’s alleged criminal wrongdoing was so central an issue in the voters’ decision-making. This is truly an unprecedented case.
Unless President Obama acts first to pardon Clinton, the task of balancing these considerations will be left to the new president and his attorney general. Our view is that President Trump should offer her a pardon. Just as with President Gerald Ford’s pardon of Richard Nixon, Clinton’s acceptance of that offer would be widely understood as a tacit admission, if not perhaps of proven criminal guilt, then at least of wrongdoing sufficient to justify prosecution. We think that the matter should rest there.
But even if that were to happen, there are, apparently, more ongoing criminal investigations into the affairs of the Clintons and their inner circle. The investigation that Comey suspended concerned Clinton’s use of a private server to transact governmental business involving classified materials. Media reports have indicated that there are no fewer than five other investigations under way. These include at least one investigation into whether the Clinton Foundation has committed financial crimes or been sullied by influence-peddling.
We believe that those investigations — which were begun under the Obama administration — should be pursued. And if in the end, the findings of those investigations justify bringing criminal charges against the vast network of Clinton helpers and aides, those charges should be brought and tried.... Trump is right to express a desire not to harm the Clintons: The criminal process should never be turned into a political vendetta or even appear to be one. But no one, and certainly not the powerful and politically connected, should be above the law — the Clintons included. Trump’s campaign pledges on that issue resonated with the American public. The law is not just for the little people, and the little people are watching....
Jeff Sessions will take the helm of a Justice Department that has been terribly compromised in other respects. He must act decisively to change its culture. Again, the Clinton “reverse Midas” touch — transforming gold into dross — was at work. Candidate Clinton publicly offered to retain Attorney General Lynch in office if she were elected, even while Lynch at the time was charged with overseeing criminal investigations into the Clinton e-mail and Foundation scandals. By not publicly declining that offer — in effect, a bribe — Lynch tainted the integrity of the investigations as well as the office of attorney general.
President Obama also undermined public confidence in the Justice Department. He maintained that he had learned of Clinton’s private server only when everyone else had. Yet later leaks revealed that he in fact had corresponded numerous times with Clinton through her off-the-record system. Obama also proclaimed Clinton not guilty of wrongdoing even while the investigation into the use of her private server was still open....
These incidents came towards the end of an eight-year period in which the honor of the Justice Department had been badly tarnished. Much of the damage occurred during the five-year stint of former attorney general Eric Holder, the first and only attorney general to be held in contempt of Congress. (Holder’s conduct was so egregious that even most House Democrats declined to vote against the contempt resolution.) Under Holder, the DOJ became thoroughly politicized, taking positions that were, frankly, absurd — on legal issues such as congressional voting representation for the District of Columbia, presidential recess-appointment power, or the War Powers Resolution. Holder’s Justice Department brought cases not on their legal merits but in order to target the administration’s perceived political or ideological opponents....
This election was about the place of law in American public life. The voters were rightly repelled by the performance of public figures, above all Hillary Clinton and her entourage, who acted as if they were above the law. Voters resented President Obama’s chronic refusal to enforce the law — whether in health care or immigration — when he found that it did not suit his political purposes. They seem to have forgiven Donald Trump for his alleged manipulation of the tax code because, even if dodgy, his actions were not illegal.
As president, Donald Trump owes it to his voters and to the American people as a whole to restore the public’s trust in its government. He must repair the contract between the people and its agents that his rival and his predecessor have shattered. And Attorney General Jeff Sessions needs to be a strong and stalwart presence at his right hand as the new president makes this happen.
November 29, 2016 in Criminal justice in the Trump Administration, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (13)
"Why Trump needs to roll back criminal penalties for noncriminal conduct"
The title of this post is the headline of this notable commentary authored by Ronald Lampard, the director of the Criminal Justice Reform Task Force at the American Legislative Exchange Council (ALEC). Here are excerpts:
Unauthorized use of Smokey the Bear's image could land an offender in prison. So can unauthorized use of the slogan "Give a Hoot, Don't Pollute." While one may think the government would never initiate a criminal prosecution for either of these two "criminal" acts, there have been numerous examples of individuals being prosecuted under federal law for conduct that should not be criminalized.
For example, Eddie Anderson of Idaho took his son camping in the wilderness, searching for arrowheads. They didn't find any, but they were searching on federal land, which is prohibited by the Archaeological Resources Protection Act of 1979. They both faced a felony charge, punishable by up to two years' imprisonment before they pleaded guilty to a misdemeanor and were fined $1,500 each and placed on probation for a year.
Some of these criminal offenses are contained in federal statutes, which prescribe an estimated 4,500 crimes, according to a study by retired Louisiana State University law professor John Baker. To help put that number in perspective, the Constitution mentions three federal crimes by citizens: treason, piracy and counterfeiting. Around the turn of the 20th century, the number of federal criminal statutes was as low as dozens. Essentially, over the last hundred years, federal statutes carrying criminal penalties have grown at an exponential rate.
The number of criminal statutes — laws passed by both Houses of Congress and signed into law by the president — is dwarfed by the number of regulations carrying criminal penalties. The total number of these regulations is difficult to count, however, it is estimated to number roughly 300,000. Perhaps most disturbingly, these "criminal regulations" are written by unelected bureaucrats, yet still carry the force of law.
In order to stem the explosion of criminal regulations, President-elect Trump can begin the process of removing said regulations. Trump says in his first 100 days he wants to see two regulations removed for every one regulation created. Since these regulations were largely written by unelected bureaucrats who work for the executive branch, the Trump administration could start immediately....
Certainly, some of these regulations ought to deter certain conduct. However, this can be accomplished by making the penalty civil or administrative.... As John Malcolm at the Heritage Foundation said, "There is a unique stigma that goes with being branded a criminal. Not only can you lose your liberty and certain civil rights, but you lose your reputation — an intangible yet invaluable commodity … that once damaged can be nearly impossible to repair. In addition to standard penalties … a series of burdensome collateral consequences that are often imposed by … federal laws can follow an individual for life."
The federal government should proscribe criminal penalties only for conduct that is inherently wrong in order to protect public safety. Criminal statutes serve a crucial purpose in preserving law and order and establishing the rule of law. However, preserving law and order need not come at the expense of criminalizing conduct such as nursing a woodpecker back to health or shipping undersized lobsters in plastic bags instead of cardboard boxes.
Trump has a tremendous opportunity to reduce the number of actions criminalized by federal law. Such action would serve all Americans well and would be a great victory for both law and order and individual liberty.
November 29, 2016 in Criminal justice in the Trump Administration, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (6)
Monday, November 28, 2016
Guest posting from Prof Carissa Hessick on SCOTUS argument: "Beckles and the Continued Complexity of Post-Booker Federal Sentencing"
I am pleased to be able to reprint this original commentary concerning today's SCOTUS oral argument from LawProf Carissa Hessick:
Earlier today the Supreme Court heard argument in Beckles v. United States. Beckles raises two questions: (1) whether the now-advisory Federal Sentencing Guidelines are subject to vagueness challenges under the Due Process Clause, and (2) whether, assuming the Guidelines are subject to vagueness challenge, a ruling that a Guideline is unconstitutionally vague is retroactive under the Teague framework. The Beckles case and today’s argument illustrate how complicated federal sentencing has become since the Supreme Court decided to treat the Federal Sentencing Guidelines as advisory in Booker v. United States.
In the decade since Booker was decided, the Supreme Court has clarified that, although the Federal Sentencing Guidelines are no longer mandatory, they are also not entirely voluntary. Deputy Solicitor General Michael Dreeben did a fantastic job in his argument explaining the middle path that the Court has carved for the Guidelines since Booker. He not only described the anchoring effect of the Guidelines, but he also noted that the Court has adopted procedural mechanisms “designed to reinforce the primacy of the Guidelines.” The current advisory system, according to Dreeben, “injects law into the sentencing process.”
As the Beckles argument illustrates, the middle path that the Court has carved is complicated. The Court continues to struggle with how to regulate an advisory system in light of the fact that the purely discretionary system that the Federal Sentencing Guidelines replaced was essentially unregulated. Indeed, counsel for Beckles spent much of her argument fending off questions by various Justices about how a Guideline could be unconstitutionally vague if a purely discretionary system is permissible under the Constitution. Justices Alito, Breyer, Kennedy, and Chief Justice Roberts all asked questions to this effect. Notably, later questions by Justice Breyer and the Chief Justice appeared to accept that a purely discretionary system might be subject to different rules than an advisory system.
The complexity of the middle path was on full display in today’s argument in part because the United States relied on the complexity of that path to take what Justice Kennedy and a court-appointed amicus characterized as inconsistent positions. The United States argued that the advisory Guidelines are subject to vagueness challenges because of the important role that they continue to play in the post-Booker world. But the government argued that the advisory status of the Guidelines should prevent the Court from making any vagueness ruling retroactive. The government distinguished this case from a recent juvenile life-without-parole case, saying that juvenile LWOP cases require a particular finding in order for a defendant to be eligible for a life-without-parole sentence. In contrast, according to the government, the Guidelines affect only the likelihood that a defendant will receive a particular sentence. The government relied on the distinction between likelihood of a sentence and eligibility for a sentence as the reason it took different positions on the vagueness question and the retroactivity question. And while Justice Sotomayor pressed the government on this distinction, none of the attorneys or the Justices mentioned an important fact about this case: When Beckles was sentenced in a Florida district court, the prevailing law in the Eleventh Circuit actually required such a finding. (Because of the amount of time taken up by questions about vagueness, petitioner’s counsel addressed the likelihood/eligibility argument only in the single minute she had remaining for rebuttal. The argument was made in an amicus that Doug and I co-authored with Leah Litman, which is available here.)
Other odd aspects of the Court’s post-Booker jurisprudence were also on display during the Beckles argument. Chief Justice Roberts and Justice Alito both raised the question whether the Court’s recent decisions about the quasi-legal status of the advisory Guidelines should endure in the face of changing sentencing patterns in the district courts. And Justice Breyer, who has often served as a champion for the U.S. Sentencing Commission, raised the possibility that the courts should be more indulgent of vague sentencing guidelines than vague statutes because the Commission is in a better position than Congress to refine the law.
Perhaps because this area of the law is so complex, both Justice Ginsburg and Justice Kennedy appeared to cast about for an easy way to dispose of this case. At one point Justice Ginsburg said as much: “I thought . . . that if we decide the first issue, . . . the case is over. But -- so I was thinking, well, we could decide that issue and not reach either vagueness or retroactivity.” Much to his credit, Deputy Solicitor General Dreeben discouraged the Court from taking that path, even though it would have meant a victory for the Government. Dreeben noted that there are many cases that raise the vagueness and the retroactivity questions that are currently pending in the lower courts. And he made an institutional appeal to the Justices to resolve the retroactivity issue even if they could decide this case based on some commentary in the Guidelines. I admire Dreeben for making this appeal to the Justices. But I don’t think that his appeal went far enough. There are a number of defendants in the Eleventh Circuit who have viable vagueness claims that are not claiming retroactivity. Because the Eleventh Circuit refused to recognize any vagueness challenges to the Guidelines, the Court should also rule on the vagueness issue even if it determines that its ruling will not be retroactive.
Although I was not at the argument this morning, it is hard to read the transcript of the Beckles argument and think that the defendant is likely to prevail. Only Justice Sotomayor seemed to be asking friendly questions of petitioner’s counsel, and only she seemed to resist the Government’s likelihood/eligibility argument.
But even if Beckles does not prevail, we may see another vagueness challenge to the Guidelines in the not-so-distant future. For one thing, Dreeben made clear in today’s argument that the Government has not taken a position on retroactivity for pre-Booker mandatory sentences. So if Beckles loses on the retroactivity question, then the courts of appeals will have to decide retroactivity in those pre-Booker cases, and if the courts split on that question, the Supreme Court may need to take another case. For another, the Court has granted cert in another statutory vagueness case, Lynch v. Dimaya. The statute at issue in Dimaya, 18 U.S.C. § 16(b), has been incorporated into a Guideline, U.S.S.G. § 2L1.2(b)(1)(C). So if the Court decides that § 16(b) is unconstitutionally vague in Dimaya, and if the Court does not answer the vagueness question in Beckles, then the Court may need to take another Guidelines vagueness case.
November 28, 2016 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (5)
Mapping out the Trumpian new world order with respect to federal sentencing reform
This article from The Hill, headlined "Trump marks change for criminal justice reform," effectively details the uncertain terrain for federal sentencing reform in the wake of this month's historic election. Here are excerpts:
President-elect Donald Trump won’t close the door on criminal justice reform, but the path forward may be complicated by his campaign rhetoric and pick to lead the Department of Justice, advocates say.... Trump’s calls for law and order, his vow to jail immigrants who are in the U.S. illegally and his pick of Sen. Jeff Sessions (R-Ala.) as attorney general have also left some criminal justice reform advocates concerned.
“I’d be lying if I told you I wasn’t concerned about Sessions as attorney general,” said Danyelle Solomon, who serves as the director of Progress 2050, a Center for American Progress project focused on diversity. “There are a lot of concerns ... that he will be a barrier to data-driven, policy-driven reforms in this space," she said. "I think he creates a challenge."
Sessions voted against the Senate bill to reduce certain mandatory minimum prisons sentences when it came before the Senate Judiciary Committee over a year ago, leaving some worried that he'd be a barrier for reform moving forward. But conservative criminal justice reforms advocates remain optimistic about Sessions, noting he authored the Drug Sentencing Reform Act in 2001 to decrease the amount of powder cocaine and increase the amount of crack cocaine necessary to trigger mandatory minimum sentences.
“Sessions isn’t monolithically opposed to reform, but he does demand a high standard for legislation that’s put in front of him,” said Derek Cohen, deputy director of Right on Crime. With Sessions as attorney general, Cohen said lawmakers might hammer out better legislation that may actually reduce costs and recidivism rates.
Jessica Jackson Sloan, national director and co-founder of #Cut50, argued "there's a really strong conservative pull on this administration" to continue pushing for criminal justice reform. Sloan is expecting reforms to focus more on re-entry, over-criminalization and initiatives in the private sector to get formerly incarcerated people back into the workforce.
House Judiciary Committee Chairman Bob Goodlatte (R-Va.) said in a statement to The Hill that he’s spoken to ranking member John Conyers (D-Mich.) about getting an early start on reform measures in the new Congress. “I look forward to talking with President-elect Trump and his administration about the problems facing the criminal justice system and our ideas for reform,” he said. "There is bipartisan agreement that many aspects of our criminal justice system need reform."
Goodlatte pointed to successes GOP governors have had in making reforms at the state level. “It is my hope that this will be an issue we can all work on together in 2017,” he said....
Opponents of criminal justice reform, however, argue the door for criminal justice reform was never open to begin with. Bill Otis, an adjunct professor of law at the Georgetown University Law Center, claims reform never really had a chance of passing Congress when President Obama was in office and has even less of a chance under Trump.
The former federal prosecutor said advocates had a leg up with the support of the Obama administration and with that came a forum and resources. “Now all that will disappear,” he said. “Trump ran explicitly as a law-and-order candidate. If he had a good word to say about reducing prison sentences, I didn’t hear it.”
Advocates are refusing to throw in the towel. Last week, the partners of the U.S. Justice Action Network sent a letter to Trump encouraging him to make criminal justice reform a top priority in his first 100 days. “We share your goal of enhancing public safety and encourage you to consider that, just as with energy policy, it requires an all-of-the-above strategy,” they wrote. “That is, just as we recognize those who pose a danger to society must be behind bars, for many others such as addicts and those with mental illness public safety can best be advanced through treatment-based approaches.”
November 28, 2016 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (0)
Many SCOTUS Justices seems disinclined to find vagueness problems with sentencing guidelines given backdrop of unguided sentencing discretion
I have only just gotten started reading the transcript of the oral argument in Beckles v. United States (which is available here), and the first set of big questions suggests some Justices are not drawn to a basic sentencing vagueness claim. Consider these passages from early in the transcript, which I have tweaked stylistically for improved exposition:
JUSTICE ALITO: Let me ask you a more fundamental question. And I don't want to unduly shock the attorneys who are here from the Sentencing Commission, but imagine there were no sentencing guidelines. So you have a criminal provision that says that a person who's convicted of this offense may be imprisoned for not more than 20 years. That's all it says. Now, is that unconstitutionally vague?
MS. BERGMANN: No, Your Honor.
JUSTICE ALITO: Well, that seems to be a lot vaguer than what we have here. So how do you -- how do you reconcile those two propositions?
MS. BERGMANN: Well, Your Honor, we submit that arbitrary determinant sentencing such as with a vague guideline is not the same as an indeterminate sentencing scheme such as the Court described. Our position is that the use of a vague guideline, in fact, is worse than indeterminate sentencing because it systematically injects arbitrariness into the entire sentencing process.
JUSTICE BREYER: And there is more arbitrariness because of this guideline than there was before the Guidelines were passed? Is there any evidence of that? I have a lot of evidence it wasn't.
MS. BERGMANN: Well, I think, Your Honor, it's especially so here because --
JUSTICE BREYER: Especially so. Is it so at all? There was a system before the Guidelines exactly as Justice Alito said. Moreover, that system is existing today side by side with the Guidelines in any case in which the judge decides not to use the Guidelines. So I don't get it. I really don't. And you can be brief here, because it's really the government that has to answer this question for me. I don't understand where they're coming from on this, and you don't have to answer more than briefly, but I do have exactly the same question that Justice Alito had....
CHIEF JUSTICE ROBERTS: Well, if the indeterminate sentencing is all right, it would seem to me that even the vaguest guideline would be an improvement and so difficult to argue that it's too vague to be applied....
JUSTICE KENNEDY: Well, but your argument applies to State systems as well, and you're telling us that the more specific a legislature or an agency tries to make guidance for the judge, the more chance there is for vagueness.... Your argument is sweeping. And you're saying the more specific guidance you give, the more dangers there is of unconstitutionality. That's very difficult to accept.
These statements notwithstanding, the extraordinary presentation by Deputy Solicitor General Michael Dreeben (who has long been my all-time favorite SCOTUS advocate) may have helped move at least some of the Justices to better appreciate how the career offender guidelines could be deemed unconstitutionally vague in the wake of the Johnson ACCA ruling back in summer 2015.
November 28, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (9)
Will Prez Obama break out of his "clemency rut" and really go bold his last few weeks in the Oval Office?
Now that Prez Obama has granted commutations to more than 1000 federal prisoners (basics here), I suppose I should stop complaining that he has only "talked the talk" about significant sentencing reform. Having granted now a record number of commutations to federal defendants sentenced to decades of imprisonment for mostly nonviolent drug offenses, Prez Obama can and should retire to the golf course with some justified satisfaction that he has created a new clemency legacy over his final few years as Prez.
That said, a few basic numbers about the reality of federal drug prosecutions in the Obama era should temper any profound praise for Prez Obama here. Specifically, Prez Obama was in charge from Jan 2009 to Aug 2010 when the old 100-1 crack/powder ratio was still in place. During that period, using this US Sentencing Commission data as a guide, well over 5000 federal defendants were sentenced under the old crack laws while Prez Obama and his appointees were leading the Justice Department. So, during just Prez Obama's first 1.5 years in office, federal prosecutors sent five times as many drug offenders to federal prison under the old crack laws than Prez Obama has now commuted. Moreover, given that the Fair Sentencing Act of 2010 only reduced the crack/powder unfairness, it is worth also noting that over another 20,000 federal defendants have been prosecuted and sentence under still-disparate/unfair crack sentencing laws from Aug 2010 to Nov 2016 (though crack prosecutions, as this USSC data shows, have declined considerably from 2010 to 2015).
I bring all this up because I will not consider Prez Obama to be a bold and courageous executive leader in the clemency arena unless and until he grants relief to more folks than just over-sentenced nonviolent drug offenders. Helpfully, this new Wall Street Journal commentary authored by Charles Renfrew and James Reynolds provides some distinct clemency fodder for Prez Obama to consider. The piece is headlined "Obama Should Pardon This Iowa Kosher-Food Executive: Prosecutors overstepped, interfered with the process of bankruptcy and then solicited false testimony." Because I have been an advocate for a reduced sentence for Sholom Rubashkin, whose 27-year federal prison sentence has long seemed grossly unfair and unjustified to me, I will not here make the clemency case for him in particular. But this WSJ commentary serves as a useful reminder that there are certainly hundreds — and likely thousands and perhaps tens of thousands — of federal prisoners currently serving excessive federal prison sentences who were involved in criminal activity other than nonviolent drug offenses.
Candidly, I am not optimistic that Prez Obama will use his last seven weeks to get out of the notable "clemency rut" of his Administration's own creation. I say this because I surmise that (1) (1) everyone involved in the Obama Administration's clemency push has been focused almost exclusively on low-level drug prisoners sentenced to a decade or longer, and (2) even the limited group of low-level drug offenders being actively considered still presents tens of thousands of clemency petitions to review. Meanwhile, I suspect and fear, reasonable clemency requests from thousands of other potentially worthy applications are seemingly being rejected out-of-hand or being left for the next Prez to deal with.
I hope Prez Obama proves me wrong in the next seven weeks by granting clemency to some other types of folks seeing executive relief (both in the form of commutations and pardons). But on most criminal justice reform issues, Prez Obama has left me deeply disappointed a lot more than he has pleasantly surprised me.
November 28, 2016 in Clemency and Pardons, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)
Sunday, November 27, 2016
Interesting and exciting sentencing week as SCOTUS gets back to work
For sentencing fans who pay special attention to the Supreme Court, November has been not all that interesting so far. But after a series of arguments on civil cases earlier in the month, the last few days of SCOTUS argument this November has all sort of intriguing issues for sentencing fans. Here are the basics and links to previews from SCOTUSblog of the exciting week to come:
Monday Nov 28: Beckles v. United States:
Issue: (1) Whether Johnson v. United States applies retroactively to collateral cases challenging federal sentences enhanced under the residual clause in United States Sentencing Guidelines (U.S.S.G.) § 4B1.2(a)(2) (defining “crime of violence”); (2) whether Johnson's constitutional holding applies to the residual clause in U.S.S.G. § 4B1.2(a)(2), thereby rendering challenges to sentences enhanced under it cognizable on collateral review; and (3) whether mere possession of a sawed-off shotgun, an offense listed as a “crime of violence” only in commentary to U.S.S.G. § 4B1.2, remains a “crime of violence” after Johnson.
Argument preview: Court to tackle constitutionality of residual clause in sentencing guidelines
Tuesday Nov 29: Moore v. Texas:
Issue: Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.
Argument preview: Court returns, again, to the death penalty and the intellectually disabled
Wednesday Nov 30: Jennings v. Rodriguez:
Issue: (1) Whether aliens seeking admission to the United States who are subject to mandatory detention under 8 U.S.C. § 1225(b) must be afforded bond hearings, with the possibility of release into the United States, if detention lasts six months; (2) whether criminal or terrorist aliens who are subject to mandatory detention under Section 1226(c) must be afforded bond hearings, with the possibility of release, if detention lasts six months; and (3) whether, in bond hearings for aliens detained for six months under Sections 1225(b), 1226(c), or 1226(a), the alien is entitled to release unless the government demonstrates by clear and convincing evidence that the alien is a flight risk or a danger to the community, whether the length of the alien’s detention must be weighed in favor of release, and whether new bond hearings must be afforded automatically every six months.
Argument preview: The constitutionality of immigrant detention
November 27, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)
AP report provides confusing non-answer as to "What is the future of U.S. prisons under Trump administration?"
The quoted question in the title of this post comes from the headline of this AP article. Because there are a number of strange and confusing elements to this AP piece, I am not sure it does even a reasonable job trying to answer the question it poses. I will explain some of my concerns with this quirky piece after quoting it at length with some highlighting of key phrases and passages:
The population of American prisons is likely to rise for the first time in nearly a decade with President-elect Donald Trump’s promise to detain and deport millions of immigrants who are in the country illegally and his selection of tough-on-crime Sen. Jeff Sessions to the nation’s highest law enforcement post.
If so, one of the prime beneficiaries would be the private companies that operate many of the nation’s prisons. The stock market seems to agree. A day after the election, CoreCivic Co., formerly Corrections Corporation of America, saw the biggest percentage gain on the New York Stock Exchange with shares climbing 43 percent. Shares of Geo Group, another private prison company, also jumped 21 percent.
The federal prison population had been trending down for nearly a decade when the Obama administration announced in August that it would phase out its use of some private facilities. The announcement followed a Justice Department audit saying private facilities have more safety and security problems than government-run lockups. The policy change did not cover private prisons used by Immigration and Customs Enforcement, though federal officials have said they are considering phasing out private contractor immigration facilities.
Trump, however, said during his campaign that the nation’s prison system was a mess and voiced support for private prisons. “I do think we can do a lot of privatizations and private prisons. It seems to work a lot better,” Trump told MSNBC in March, though he didn’t offer any details on what that might mean for the federal prison system.
Immigration and Customs Enforcement holds up to 34,000 immigrants awaiting deportation. Forty-six of the roughly 180 facilities in which ICE holds those immigrants are privately run, with about 73 percent of detainees held in the private facilities, the agency says.
“Trump was saying during his 100-day plan that mandatory minimums for people re-entering the country would be set at two years -- that’s going to require a longer-term need for beds,” said Michael Kodesch, a senior associate with financial services firm Canaccord Genuity Inc. Immigration detention centers are particularly profitable for private prison companies because they command a higher rate for each inmate bed, he said....
Sessions, Trump’s pick for attorney general, was among a handful of Republican senators blocking a bipartisan bill that would reduce lengthy sentences for low-level drug offenders. McLaurine Klingler, a spokeswoman for Sessions, said no one on Sessions’ staff was immediately available to talk about his feelings on the DOJ’s use on private prisons.
CoreCivic spokesman Jonathan Burns said the company doesn’t take positions on proposals, legislation or policies that would determine the basis of an individual’s incarceration or detention. He said the company instead works to “educate lawmakers on the benefits of public-private partnership generally and the solutions CoreCivic provides.”
I likely would need to write a few law review articles to unpack all the hash in this AP report, but the second highlighted passage above reveals a big part of the mess that this article reflects. Specifically, the AP article suggests that "private companies ... operate many of the nation’s prisons"; But folks at ACLU note here that "for-profit companies are responsible for approximately 6 percent of state prisoners, 16 percent of federal prisoners, and inmates in local jails in Texas, Louisiana, and a handful of other states." In other words, private companies actually operate a very small percentage of the nation's prisons.
As the AP article hints, Prez-Elect Trump and his administration might want to grow rather than shrink reliance on for-profit companies for incarceration. (Even if true, it would matter a lot whether Trump would want just the federal system or also state systems to make greater use of private prisons.) But Trump's comment praising privatization seems based on a (sound?) view that the very best private prisons might function more effectively and efficiently than the very worst public prisons responsible for our current mass incarceration "mess." So, even if Prez-Elect Trump and his administration were to make a huge commitment to, say, doubling the use of private prisons nationwide, that commitment alone would not itself make it "likely" for the "population of American prisons ... to rise" in the coming years. (Indeed, given the incarceration reform measures enacted in key states at the same time Trump was elected president, I am inclined to predict that it is more likely we will see some declines in the population of American prisons in the coming years.)
Finally, though it is true AG-designate Jeff Sessions was opposed to federal statutory sentencing reform throughout 2016 while serving as Senator Sessions from Alabama, his departure from the Senate might now make it more likely that some form of federal statutory sentencing reform gets passed by Congress in 2017 or 2018. This is true not only because Sessions may get replaced in the Senate by someone at least slightly more likely to support federal statutory sentencing reform, but also because opposition to reform by a number of Senators in 2016 was based in part on a desire to preclude Prez Obama from having a legacy criminal justice reform achievement. Once Prez Obama is out the door and the (toxic?) symbolism of his affinity for sentencing reform is just a recent memory, I think some (modest?) form of federal statutory sentencing reform is likely to make it through Congress before too long.
November 27, 2016 in Prisons and prisoners, Who Sentences? | Permalink | Comments (13)
"Oregon Death Penalty: A Cost Analysis"
The title of this post is the title of this notable research report released earlier this month. This press release from Lewis & Clark Law School provides helpful background on the report and its findings. Here are excerpts:
A new report by Lewis & Clark Law School and Seattle University offers an unprecedented financial picture of the previously uncalculated cost of capital punishment in Oregon. “Oregon Death Penalty: A Cost Analysis” shows that the costs for aggravated murder cases that result in death sentences range, on average, 3.5 to 4 times more expensive per case when compared to similar non-death penalty cases.
Lewis & Clark Law Professor Aliza Kaplan spearheaded the research effort, fueled by the fact that there was no data to answer questions about the cost of capital punishment in Oregon. Kaplan approached co-author Peter A. Collins, PhD of Seattle University’s Criminal Justice Department, to complement her legal analysis with best-in-class quantitative analysis methods, following his similar 2015 report on death-penalty cost analysis for the state of Washington.
Looking at cost data from the Oregon Department of Corrections (DOC), the Oregon Department of Justice (DOJ), and the Oregon Office Public Defense Services (OPDS) among other sources, the report also examines the role that the lengthiness of death penalty cases plays in their total costs. These cases stretch on for decades due to the constitutional and statutory requirements of appeals and reconsiderations, which increases the net litigation costs for all parties.
The report, which took more than 18 months to compile, also looks at the use of the death penalty in Oregon, which voters did away with in 1964, but reinstated two decades later. Since 1984, 62 individuals have been convicted and sentenced to death. Of those 62, twenty-eight of them are no longer on death row. Just two of these cases have 1 resulted in death (both individuals dropped their appeals and “volunteered” to be executed), four people died of natural causes while in prison, and 22 people, or roughly 79%, have had their sentences reduced.
Offering common ground for policymakers and citizens of Oregon to examine capital punishment, the report is part of a growing trend to bring better data to the work of crafting more sound public policy. For Kaplan, the report is about increasing transparency through better data. “The decision makers, those involved in the criminal justice system, everyone, deserves to know how much we are currently spending on the death penalty, so that when stakeholders, citizens and policy-makers make these decisions, they have as much information as possible to decide what is best for Oregon,” said Kaplan.
According to Dr. Peter Collins, “There are several important takeaways from this research for Oregonians. First, the evidence clearly shows that aggravated murder cases that involve the death penalty are at least three-and-a-half to four-times more expensive than aggravated murder cases that do not involve the death penalty. Second, although the death penalty is not being pursued as frequently as in the past, the average costs when it is have markedly increased. Last, it is ultimately a futile endeavor, as the vast majority of death penalty sentences are decreased to life without parole in post conviction appeals.”
Six law students at Lewis & Clark provided key assistance in producing the report, conducting extensive legal research and field interviews with professionals throughout the criminal justice system. Third-year law student and co-author of the study, Venetia Mayhew, was involved in the project since its first day. “Professor Kaplan provided me with a remarkable opportunity to delve deep into Oregon’s death penalty system and to understand the laborious and costly nature of its processes. I was most struck by the human cost it imposes on all those who participate,” said Venetia Mayhew, JD ’17, who began her work on the analysis in her first year as a Lewis & Clark law student.
November 27, 2016 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)
Saturday, November 26, 2016
Terrific content and context for Prez Obama's clemency work at Pardon Power
Long-time readers know that the blog Pardon Power is a must-read for anyone who cares about clemency policies and practices. Of particular importance and value, P.S. Ruckman's work at Pardon Power consistently provides needed theoretical and historical context for better understanding recent clemency activities rather than falling prey to the the modern media tendency to follow and obsess over the latest "shiny object" of clemency. Great examples of why Pardon Power is a must-read these days as we move into the twilight of the Obama era are these recent posts of note over the holiday weekend:
Obama's 1,000th Commutation: Hold the Fireworks.
Though I recommend highly all these posts, the last of the bunch has the most far-reaching and trenchant analysis. Here is how that piece starts and ends:
It seems more than likely that, before he leaves office, President Obama will break Woodrow Wilson's record for commutations of sentence. It is, however, more than a little amazing (if not highly informative) to compare the use of federal executive clemency in the two administrations.
By the time he left the White House, Wilson had granted 1,087 presidential pardons (as well as 226 respites and 148 remissions). Obama, however, has granted a mere 70 pardons, the lowest number granted by any president serving at least one full term since John Adams. It doesn't seem likely that Obama will pass out 1,000 plus pardons between now and the end of the term. But there appears to be little concern about it on any front. So, it is what it is.
Consequently, clemency, for Obama, has meant — for the most part — commutations of sentence, almost exclusively for those convicted of drug offenses. And these grants have — for the most part — been granted late in his second term. Indeed, the Obama administration already features the largest 4th-year clemency surge of any administration in history....
The federal prison population has boomed since Wilson's day. The Obama administration has been receiving record numbers of clemency applications, for years. On top of that, thousands remain in prison who were sentenced under drug laws which have been undone. The merciless neglect of the current clemency system needs to tanked. The process needs to be removed from career prosecutors in the DOJ who are unable / unwilling to process clemency applications in a timely fashion, with an eye toward mercy. The broken system has famously lacked transparency (since 1932) and, today, it even exempts itself FOIA law.
It is time to create a permanent clemency board / commission (a device often used in the states) in the Executive Office of the President of the United States. It is time for mercy to emerge once again as a regular feature of criminal justice. It's not just about numbers. It is about balance, fairness. It is about rehabilitation and restoration. It's about presidents using a power that was given to them ... to use ... not to abuse, or neglect.
November 26, 2016 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)
So many marijuana reform developments and questions, with so many more on 2017 horizon
Though I blogged a bit in this space about marijuana reform right around the election (see here and here), over the last few weeks I have been content to cover this issues just over at Marijuana Law, Policy & Reform. But this new post about this new article about the thousands of Californians getting sentencing relief thanks to the state's passage of a major marijuana legalization proposition, Prop 64, reminded me that I should be reminding readers about the close links between marijuana reform in particular and sentencing reform in general.
The first post linked below tells the sentencing reform story, and some other postings from my other blog tell a whole lot of other interesting and dynamic stories about the current state and possible future of marijuana reform in the United States:
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Highlighting how in California marijuana legalization = sentencing reform
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"U.S. Resident Population in States that Permit Medical or Recreational Marijuana Use"
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Voter math suggests a possible Hillary landslide IF she had championed marijuana reform
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"Where Marijuana Is the Doctor’s Orders, Will Insurers Pay?"
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"NYSE Becomes First Major Exchange To List Cannabis Company With Acceptance Of REIT IPO"
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How will Sen. Sessions' selection as attorney general impact marijuana legalization in California?
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Fascinating exit poll data on Arizona and California marijuana legalization support/opposition
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"Marijuana Legalization Initiatives Boost Scotts Miracle-Gro Stock To All-Time High"
November 26, 2016 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)
Mississippi prosecutor to argue old Facebook post helps justify LWOP sentence for juve getaway driver
This local article about a forthcoming sentencing in a Mississippi state case, headlined "Facebook post to be used in sentencing," strikes me as a disconcerting example of the equivocal evidence some prosecutors will highlight in an effort to secure the most extreme of prison sentences even for offenders who seem to be anything but the most extreme of criminals. Here are the details:
Prosecutors will use a Facebook post from 2010 when Gerome Moore was 13 showing him in possession of a handgun and "arguably" displaying gang signs to try to show Moore should be sentenced to life without parole in the January 2015 shooting death of Carolyn Temple in Belhaven. Moore was convicted of capital murder in September, but his sentencing is on hold. A capital murder conviction had meant a mandatory life sentence without the possibility of parole, but a 2012 Supreme Court ruling said judges must consider the unique circumstances of each juvenile offender....
Moore was 17 at the time of the crime. He didn't shoot Temple, but his gun was used. He and at least two others were driving around that evening looking for someone to rob. Prosecutors say they followed Temple's vehicle, a Mercedes, to her boyfriend's house in Belhaven. Once she got out her car and went to the curb to retrieve her boyfriend's garbage can, two of the individuals tried to take her purse. She resisted and one of them shot her. Prosecutors believe Moore stayed in the car and was the getaway driver, although he provided the weapon.
In court filings, Assistant District Attorney Randy Harris said, "The cumulative resume of Gerome Moore qualifies him for that exact sentence of life without parole." Harris said Moore's unwillingness to abide by the decent standards of society and to abide by the criminal laws began long Temple's shooting. In addition to the Facebook post, by the time Moore was 17, he would tell investigators he never went riding without his gun, according to Harris. Harris also talked about other crimes Moore was involved in as well as escaping from the Hinds County Detention Center after his arrest. He was later recaptured.
"Truth is that Moore was two months shy of attaining 18 years of age when this capital murder was perpetrated," Harris said. "Had the crime happened merely two months later, this discussion of the propriety of life without parole would not even be taking place as there would be no argument that without parole was an appropriate and legislatively approved sentence."
Moore's attorney, Aafram Sellers, argues his client shouldn't receive a sentence of life without parole. "Clearly, a child who did not actually kill or intend to kill anyone will not be among the uncommon and rare juvenile homicide offenders who might permissibly receive the state's harshest prison sentence," Sellers said.
Sellers said punishment of life in prison without parole would be disproportionate to the sentence of the shooter in the case, Antwain Dukes, who received a sentence of 25 years to serve.
To review, after a robbery went bad and resulted in the shooting of the victim, the robber who actually killed the victim received a sentence of 25 years, but Mississippi prosecutors now want the robber who only sat in the car during the shooting to receive an LWOP sentence. And Mississippi prosecutors are citing to a Facebook post by the defendant at age 13 when arguing an LWOP sentence for the juvenile getaway driver is justified. Hmmm.
November 26, 2016 in Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1)
Friday, November 25, 2016
New talk in New Jersey of bringing back capital punishment a decade after state abolition
The stark pro-capital punishment election results in a number of states, especially in deep blue California, has been a chief reason I now believe that any reports on the death of the death penalty are obviously premature. Another sign of these capital punishment times comes from this new local article headlined "Two N.J. lawmakers call for return of the death penalty." Here are the highlights:
Two New Jersey senators want to bring back the death penalty for what they call the "most heinous acts of murder," including terrorism and attacks on police officers. "These are extreme circumstances that are involved," said Sen. Jeff Van Drew (D., Cape May), who, along with Sen. Steve Oroho (R., Sussex), introduced legislation Monday to revive the death penalty. "But I do believe it's an option that should be there, however seldom used."
The death penalty was abolished in New Jersey in 2007. A state study commission concluded then that it cost more to sentence someone to death than life without parole, that advances in DNA testing had raised doubt about some convictions, and that the death penalty rarely was used. The last execution in New Jersey happened in 1963.... Voters in California, Nebraska, and Oklahoma favored keeping the death penalty when it was put on the ballot this month.
In New Jersey, in addition to fatalities caused by terrorism and the targeting of police officers, Oroho and Van Drew want to make the death penalty an option when a child is killed during a sex crime, multiple people are slain, or an individual already has a previous conviction for murder.
Oroho said he believes the death penalty could dissuade people such as Ahmad Khan Rahami, who is accused of setting off bombs in September in New York City, injuring 29 people, and in Seaside Park, N.J., along the course of a 5K run benefiting injured Marines. A delay in the race start prevented injuries there. The death penalty could not apply the Rahami case because no one was killed, but Oroho said the attacks illustrated the need for capital punishment. "Many people could have lost their lives," he said.
Former Gov. Jon S. Corzine ended capital punishment in 2007 after the New Jersey Death Penalty Study Commission — composed of judges, prosecutors, and others whom the Legislature asked to study the issue — advocated a ban, citing factors such as high costs. Keeping an inmate in New Jersey State Prison's capital-sentence unit cost at least $72,000 per year — $32,000 more than keeping an inmate in the prison's general population, the commission said in its report. The state Office of the Public Defender also estimated in the report that eliminating the death penalty would save $1.4 million annually. The office based that figure on 19 death-penalty cases that existed in 2006, and the costs of pretrial preparation and jury selection.
Thomas F. Kelaher, who was part of the commission and Ocean County's prosecutor at the time, had his office try the death penalty on two Bronx men accused of tying up a mother and her adult son, slitting the mother's throat, and shooting both in the back of the head in a Barnegat home in 2000. Kelaher said more than 200 jurors were interviewed — mostly about whether they supported the death penalty — before 14 were selected. "It took us a long, long time to get to the conclusion of the case, and they never got the death penalty anyway," said Kelaher, who is now mayor of Toms River. Gregory "Shaft" Buttler and Dwayne Gillispie received life sentences instead.
Had they received the death penalty, Kelaher said, appeals likely would have followed and taken up more time and resources. Kelaher called the process "a waste of time." "It never ends," he said.
West Orange Police Chief James P. Abbott, who also was on the death-penalty commission, said that it could take years for someone to be executed, and that trials and appeals cause families to relive the pain of losing a loved one. "To me," Abbott said, the death penalty is "where it belongs — in our past." The justice system, he said, also is subject to human error, which can put the wrong people behind bars.
Van Drew said concrete evidence would be crucial if the death penalty were to return in New Jersey. "DNA proof would be absolutely necessary in some way," he said. "We have to be absolutely sure that this person is guilty."
Because New Jersey has not executed anyone in over 50 years, I do not think formally making the death penalty legal again in the Garden State would actually increase the chances of an execution by any tangible amount. But I do think, for reasons partially explained in this recent post about new non-capital sentencing reforms passed in California and Oklahoma, that sophisticated and shrewd New Jersey advocates for various criminal justice reforms might consider embracing this symbolic call to bring back the death penalty in order to have a strategic "pace car" for other needed New Jersey reforms. Specifically, as the article here suggests, the New Jersey lawmakers advocating bringing back the death penalty might be uniquely willing to have DNA access and/or protections against wrongful convictions included in any bill to bring back capital punishment. Relatedly, this FAQ page about New Jersey corrections suggests as many as 1000 folks are serving life with parole sentences in the state. Perhaps a death penalty bill that specifies the "worst of the worst" killers who will be subject to capital punishment could also include provisions to make the not-so-worst killers more likely to earn parole.
November 25, 2016 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (9)
"Intuitive Jurisprudence: Early Reasoning About the Functions of Punishment"
The title of this post is the title of this intriguing new research essay from a group of academics connected to the University of Chicago's Department of Psychology. The piece, authored by Jessica Bregant, Alex Shaw and Katherine Kinzler, has been posted on SSRN with this abstract:
Traditional research on lay beliefs about punishment is often hampered by the complex nature of the question and its implications. We present a new intuitive jurisprudence approach that utilizes the insights of developmental psychology to shed light on the origins of punishment intuitions, along with the first empirical study to test the approach.
Data from 80 child participants are presented, providing evidence that children expect punishment to serve as a specific deterrent, but finding no evidence that children expect punishment to have a general deterrent or rehabilitative effect. We also find that children understand punishment in a way that is consistent with the expressive theory of law and with expressive retributivism, and we present evidence that an understanding of the value of punishment to the social contract develops throughout childhood.
Finally, we discuss the application of the intuitive jurisprudence approach to other important legal questions.
November 25, 2016 in Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)
Thursday, November 24, 2016
Thankful for so much for so many reasons ... including all sorts of 2016 sentencing law and policy developments
Reviewing some past Turkey Day posts, I noticed my wise tendency to just express thanks in this space on this day for giving thanks. For example, this post five years ago started this way: "I have so much to be thankful for on this Thanksgiving 2011, I do not even know where to start. I do know that today is an especially good day to be thankful that most Americans will spend today reflecting on how much they have to be thankful for in this wonderful nation rather than spending so much time complaining about this or that." I now find it funny and fitting that circa 2016 I cannot even remember what folks were spending so much time complaining about on Thanksgiving 2011.
In the wake of a jarring election season and result, I know what most folks are busy complaining about now. But I remain thankful for so much for so many reasons today, and that includes an array of interesting and dynamic sentencing law and policy developments that transpired over the last year. (I will wait until next month to do a few formal 2016-in-review posts about sentencing developments, but I am eager now to assert that I think everyone who follows sentencing law and policy can and should find something encouraging to be thankful for this holiday season.)
And, speaking of being thankful and 2016 sentencing law and policy developments, I want to remind readers of this Federal Sentencing Reporter call for commentaries. And, just to stir the pot, I will also link to two prior Turkey Day posts that might generate some engaging discussions:
November 24, 2016 in On blogging, Who Sentences? | Permalink | Comments (3)
Wednesday, November 23, 2016
"Four predictions about President Trump’s Supreme Court" ... that seem somewhat iffy
The quoted portion of this post title is the headline of this new Washington Post commentary authored by poly-sci professor Kenneth Moffett. But as my addition to the title suggests, I am not too sure about all the predictions. Here are some highlights:
One of President-elect Donald Trump’s most important decisions will be choosing a Supreme Court nominee to replace the late Justice Antonin Scalia. And while Trump has not clearly signaled who he will pick, here are four predictions about the next Supreme Court:
1. Trump will appoint a conservative. What kind of conservative isn’t yet clear. ...
Eight potential Trump appointees have more liberal scores than Scalia, while four are more conservative. Regardless of which side they fall on, eight are clustered pretty close to Scalia, indicating that they would likely be justices in his mold....
The chart suggests that it is virtually certain that Trump will nominate a conservative, most likely one whose preferences are closely aligned with Scalia. Of course, if Trump deviates from his announced list of 21 — not an impossibility given his penchant for surprise — then that may be less certain.
2. The court will get back to hearing its normal caseload.
During the 2015 term, the court heard 69 cases, but only has 48 on the docket in 2016.... [When] a new justice will be confirmed, bringing the court back to full strength. When that happens, the court’s docket will return over the next term or two to the average of where it had been in the previous five terms, around 69 cases.
3. The court is not going to undo affirmative action programs — at least not immediately....
4. The court could move to weaken labor unions and expand gun rights.
For complicated reasons, I am not sure I would make book on most of these predictions. But on a holiday eve, I will just say I would love to hear others' SCOTUS predictions (especially in the sentencing space).
November 23, 2016 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (9)
Tuesday, November 22, 2016
Prez Obama grants 79 move commutations, taking his total over 1000 for his administration
As reported in this new Washington Post article, headlined "Obama grants 79 more commutations to federal inmates, pushing the total past 1,000," the outgoing President has decided to make some clemency news before turning torward Turkey Day festivities. Here are the basics from the start of this article:
President Obama granted commutations to another 79 federal drug offenders Tuesday, pushing the number of inmates he has granted clemency past 1,000.
Obama’s historic number of commutations was announced as administration officials are moving quickly to rule on all the pending clemency applications from inmates before the end of the year. The Trump administration is not expected to keep in place Obama’s initiative to provide relief to nonviolent drug offenders.
“The President’s gracious act of mercy today with his latest round of commutations is encouraging,” said Brittany Byrd, a Texas attorney who has represented several inmates who have received clemency since Obama’s initiative began in 2014. “He is taking historic steps under his groundbreaking clemency initiative to show the power of mercy and belief in redemption. Three hundred and forty two men and women were set to die in prison. The President literally saved their lives.”
The White House and the Justice Department were criticized by sentencing reform advocates earlier this year for moving too slowly in granting commutations to inmates serving harsh sentences who met the criteria for clemency. The administration has greatly picked up the pace, but advocates still want them to move faster before time runs out.
“At the risk of sounding ungrateful, we say, “thanks, but please hurry,” said Kevin Ring, vice president of Families Against Mandatory Minimums. “We know there are thousands more who received outdated and excessive mandatory sentences and we think they all deserve to have their petitions considered before the president leaves office. Petitioners are starting to get anxious because they know the president is, in prison parlance, a short-timer.”
On a press call this afternoon (which is available here), Deputy Attorney General Sally Q. Yates delivered remarks that included these sentiments:
As of this morning, President Obama has granted clemency to over 1,000 men and women who were incarcerated under outdated sentencing laws.
The number 1,000 is significant, but it’s important to remember that this is more than a statistic. There are 1,000 lives behind that number, 1,000 people who had been sentenced under unnecessarily harsh and outdated sentencing laws that sent them to prison for 20, 30, 40 years, even life, for nonviolent drug offenses. It's part of my job to review the petitions for each of these individuals, and I've been struck by the common threads woven through many of them — lack of access to education or real economic opportunity, absence of parents, drug addiction, hopelessness. But in these petitions I've also seen something else — remarkable introspection, a real sense of responsibility for their conduct, and a dogged determination not to repeat the mistakes of the past and to ensure that they, and especially their children, chart another path.
The President has given these 1,000 individuals that opportunity. And while we are a nation of laws, and those who violate those laws must be held accountable, we are also a nation of second chances. The mission of the Justice Department not only supports but demands that we do everything in our power to ensure that our criminal justice system operates fairly. In this case, that means reducing disproportionate sentences imposed under out-of-date laws. And we are privileged to serve a President who has not only taken on this responsibility himself, but who has given us the chance to fulfill our core charge to seek justice....
And a lot of work has gone into the clemency initiative to get us to this historic announcement today. Since the initiative was announced in 2014, thousands of petitions have been submitted and reviewed by the hard working attorneys in the Office of the Pardon Attorney, my office, the Office of the Deputy Attorney General, and the White House to identify nonviolent drug offenders whose sentences would be significantly lower if they were sentenced today. While we are proud of the progress we’ve made so far, as I have said before, our work is still not done. We will continue to make recommendations on clemency applications until the end of the Administration, fulfilling the goals we set more than two and a half years ago when we launched the clemency initiative.
November 22, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)
"Trump will not pursue charges against Clinton, aide says"
The title of this post is the headline of this new FoxNews piece, which reports these details:
President-elect Donald Trump will not pursue charges against Hillary Clinton relating to the Clinton foundation or the former secretary of state’s use of a private email server, former Trump campaign manager Kellyanne Conway said Tuesday.
In an interview with MSNBC’s Morning Joe, Conway said that while Clinton “has to face the fact that a majority of Americans don’t find her to be honest and trustworthy,” it would be a good thing if Trump can “help her heal.” "I think when the President-elect, who's also the head of your party…tells you before he's even inaugurated he doesn't wish to pursue these charges, it sends a very strong message, tone, and content,” she said.
The move is a significant break from Trump’s campaign rhetoric, which included a warning that if he were president he’d get his attorney general to appoint a special prosecutor to investigate her behavior. In the second presidential debate he quipped to Clinton that if he was president: “you’d be in jail.” Cries of “lock her up” were a common feature at Trump’s campaign rallies....
Trump's decision not to pursue charges against Clinton would not prevent congressional Republicans from opening investigations and referring them to the Justice Department for charges. Trump expanded on his decision at a meeting with reporters at the New York Times Tuesday afternoon, telling them "I think it would be very very divisive for the country" to prosecute the Clintons, although he hadn't taken it off the table entirely.
Though I am 99.9% certain nobody will fully understand the full basis for my first two reactions here, I will share them anyway: (1) I am a tiny bit disappointed, and (2) I hope congressional Republicans will at least do some investigation into the deleted emails and/or into pay-to-play with the Clinton Foundation while Hillary Clinton was serving as Secretary of State.
UPDATE: Kent over at Crime & Consequences has this post on this topic under the title "Amnesty for Hillary."
November 22, 2016 in Campaign 2016 and sentencing issues, Celebrity sentencings, Criminal justice in the Trump Administration, Offense Characteristics, Who Sentences? | Permalink | Comments (20)
Monday, November 21, 2016
"Four Ways Drug Policy Reformers Must Play It Smart Under the Trump Administration"
The title of this post is the headline of this notable new commentary by Bill Piper, which gets started this way:
I began working, advocating and lobbying for federal-level drug policy reform in Washington, DC in the last year of Bill Clinton’s presidency. I’ve continued to do so ever since: I was a loyal soldier in the war against the War on Drugs through eight years of George W. Bush and then eight years of Barack Obama. But now, with the election of Donald Trump, it feels like the work during those three presidencies was just basic training—the real challenge is just beginning.
Like many people, I’m still trying to wrap my mind around the very idea of Donald Trump as president. But what’s certain is that drug policy reformers are going to have to play it smart in the new era, and I do have some initial thoughts.
First, we’re in uncharted territory. We have never had a president like this—so far removed from establishment norms, openly promoting white supremacy, believing in and promoting wacko conspiracy theories. Complicating matters, he doesn’t seem to have fixed positions, rarely gives specifics and contradicts himself often. No one knows for sure what exactly to expect, but we should assume the worst.
His administration, which looks set to be staffed by drug-war extremists, could go after state marijuana laws. Instead of just opposing sentencing reform, they could push for new mandatory minimums. They might demonize drugs and drug sellers to build support for mass deportations and a wall. Trump’s law-and-order rhetoric could fundamentally alter the political environment, nationally and locally.
Right now there is a bipartisan consensus in favor of reducing incarceration—that consensus is in danger. We could be set back decades if we’re not careful. We need to rethink a lot of what we’ve been planning and think about how we message. And it’s more important than ever that we support our allies in other movements and stand strong for racial justice. We need to re-learn how to play defense.
November 21, 2016 in Criminal justice in the Trump Administration, Drug Offense Sentencing | Permalink | Comments (2)
