Monday, March 19, 2018

"Informed Misdemeanor Sentencing"

The title of this post is the title of this notable new paper authored by Jenny Roberts now available via SSRN. Here is the abstract:

There is no such thing as a low-stakes misdemeanor. The misdemeanor sentence itself, which can range from time served to up to twelve years in some jurisdictions, is often significant.  But the collateral consequences of such a conviction can be far worse, affecting a person’s work and home lives for decades, and sometimes for the rest of their lives. As a result of misdemeanor convictions, defendants can be fired from their jobs, barred from future employment in many fields, deported, evicted from public housing together with their entire family, and refused housing by private landlords.

Under most theories of punishment, a judge at sentencing does not simply look back to the crime and its circumstances but also looks forward at the defendant’s future.  Judges imposing sentences in misdemeanor cases should focus forward much more heavily than back, and should consider the collateral effects of a misdemeanor conviction on the defendant’s future.  Viewed through that more expansive lens, and given the broad discretion of judges in misdemeanor sentencing and lack of existing guidance for that discretion, the sentencing function of judges in misdemeanor cases is in serious need of study and reform.

This Article’s goal is two-fold.  First, it contextualizes judicial responsibility for misdemeanor sentencing in the realities of the lower criminal courts, where a number of structural and systemic barriers — including violations of the right to counsel and pressures on judges to move cases along rapidly — affect but do not excuse the way judges go about sentencing.  Second, the Article calls for judges to undertake “informed misdemeanor sentencing,” which draws on principles of proportionality and parsimony in determining the just sentence in a misdemeanor case.  Accordingly, judges should explicitly acknowledge the many serious collateral consequences an individual suffers after any penal sanction, and incorporate those into the sentencing process to ensure that punishment is proportionate.  In addition, judges should bring parsimony into the sentencing process by making more use of deferred adjudication as well as expungement and related mechanisms for mitigating the unintended effects of a misdemeanor conviction.

March 19, 2018 in Collateral consequences, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Highlights from Prez Trump's tough talk about the opioid crisis and federal response

This FoxNews piece, headlined "Trump declares war on opioid abuse, calls for death penalty for traffickers, more access for treatment," provides some details on Prez Trump's comments on the opioid crisis today in New Hampshire.  Here are excerpts:

Speaking from one of the states hardest hit by the opioid epidemic, President Trump on Monday laid out a battle plan that calls for harsher sentences — and even the death penalty — for traffickers.

Trump called for expanded treatment options for victims in the Manchester, N.H., speech, but leveled most of his emphasis on beefed-up enforcement. And he heaped plenty of scorn on the people he believes are responsible for as many as 42,000 U.S. deaths per year. "These are terrible people and we have to get tough with those people," Trump said of traffickers and dealers. "This isn’t about committees... this is about winning a very tough problem."

"The ultimate penalty has to be the death penalty," Trump said, before musing, "maybe our country is not ready for that."

Trump wants Congress to pass legislation reducing the amount of drugs needed to trigger mandatory minimum sentences for traffickers who knowingly distribute certain illicit opioids. The death penalty would be pursued where appropriate under current law. Justice Department says the federal death penalty is available for several limited drug-related offenses, including violations of the "drug kingpin" provisions in federal law.

Trump reiterated an observation he has shared several times before — that a person in the U.S. can get the death penalty or life in prison for shooting one person, but that a drug dealer whose actions could lead to thousands of overdoses can spend little or no time in jail.

The president said the federal government may consider aggressive litigation against pharmaceutical companies deemed complicit in the crisis. "Whether you are a dealer or doctor or trafficker or a manufacturer, if you break the law and illegally peddle these deadly poisons, we will find you and we will arrest you and we will hold you accountable," Trump said.

Trump singled out Mexico and China as main sources of illicit opioids. A Drug Enforcement Administration report last year said: "Seizures indicated that China supplies lower volumes of high-purity fentanyl, whereas fentanyl seizures from Mexico are higher volume but lower in purity."...

Trump also announced a nationwide public awareness campaign, as well as increased research and development through public-private partnerships between the federal National Institutes of Health and pharmaceutical companies. He announced a new website,, where people can share their stories about addiction. The hope is that horror stories will scare people away from behavior that could lead to addiction. The Trump administration aims to see the number of filled opioid prescriptions cut by one-third within three years.

A third part of the plan addresses improving access to treatment and recovery programs that have proven effective. Many health professionals, relatives of those who have died of overdoses and people who have experienced addiction to opioids have been pushing for treatment to be a key component of any campaign to fight the epidemic. "Failure is not an option," the president said. "Addiction is not our future. We will liberate our country from this crisis."...

Meanwhile, Congress plans to weigh a range of bills targeted at curbing the epidemic. The bills cover everything from improving access to treatment to intercepting shipments of illicit opioids en route to the United States. "Our recommendations will be urgent and bipartisan, and they will come very quickly," said Sen. Lamar Alexander, R-Tenn., chairman of the Senate Health, Education, Labor and Pensions Committee, according to published reports.

Interestingly, though the media (and Prez Trump himself in his spoken remarks) are making much of the death penalty and other tough-on-crime pieces of the plan, this official White House accounting of the plans, described as "President Donald J. Trump’s Initiative to Stop Opioid Abuse and Reduce Drug Supply and Demand," gives significantly more attention to public health elements and actions.

Prior related posts:

March 19, 2018 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (4)

Justice Sotomayor suggests "reconsideration of other sentencing practices in the life-without-parole context"

I noted in this prior post denial of cert in the closely-watched capital case of Hidalgo v. Arizona, and Justice Breyer's statement respecting the denial of certiorari in Hidalgo was not even the most interesting such statement on this morning's SCOTUS order list.  That honor goes to Justice Sotomayor's statement respecting the denial of certiorari in Campbell v. Ohio, which suggests importing more of the Eighth Amendment's procedural protections for the death penalty to life without parole sentencing. I recommend this four-page statement in full, and here are snippets:

Because of the parallels between a sentence of death and a sentence of life imprisonment without parole, the Court has drawn on certain Eighth Amendment requirements developed in the capital sentencing context to inform the life-without-parole sentencing context....

The “correspondence” between capital punishment andlife sentences, Miller, 567 U. S., at 475, might similarly require reconsideration of other sentencing practices in the life-without-parole context. As relevant here, the Eighth Amendment demands that capital sentencing schemes ensure “measured, consistent application and fairness to the accused,” Eddings v. Oklahoma, 455 U. S. 104, 111 (1982), with the purpose of avoiding “the arbitrary or irrational imposition of the death penalty,” Parker v. Dugger, 498 U. S. 308, 321 (1991). To that aim, “this Court has repeatedly emphasized that meaningful appellate review of death sentences promotes reliability and consistency.” Clemons v. Mississippi, 494 U. S. 738, 749 (1990)...

Our Eighth Amendment jurisprudence developed in the capital context calls into question whether a defendant should be condemned to die in prison without an appellate court having passed on whether that determination properly took account of his circumstances, was imposed as a result of bias, or was otherwise imposed in a “freakish manner.”  And our jurisprudence questions whether it is permissible that Campbell must now spend the rest of his days in prison without ever having had the opportunity to challenge why his trial judge chose the irrevocability of life without parole overthe hope of freedom after 20, 25, or 30 years.

March 19, 2018 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Three Justices join Justice Breyer questioning how Arizona's death penalty system operates

Many month ago, as highlighted here, the cert petition in Hidalgo v. Arizona generated considerable attention.  That matter ended today when the petition for a writ of certiorari was denied, along with this lengthy statement by Justice Breyer joined by Justices Ginsburg, Sotomayor and Kagan. I was expecting some Justices to say something really notable after all this build up, by the statement ends this way:

Although, in my view, the Arizona Supreme Court misapplied our precedent, I agree with the Court’s decision today to deny certiorari. In support of his Eighth Amendment challenge, the petitioner points to empirical evidence about Arizona’s capital sentence system that suggests about 98% of first-degree murder defendants in Arizona were eligible for the death penalty.  That evidence is unrebutted. It points to a possible constitutional problem.  And it was assumed to be true by the state courts below. Evidence of this kind warrants careful attention and evaluation. However, in this case, the opportunity to develop the record through an evidentiary hearing was denied. As a result, the record as it has come to us is limited and largely unexamined by experts and the courtsbelow in the first instance. We do not have evidence, for instance, as to the nature of the 866 cases (perhaps they implicate only a small number of aggravating factors).  Nor has it been fully explained whether and to what extent an empirical study would be relevant to resolving the constitutional question presented.  Capital defendantsmay have the opportunity to fully develop a record with the kind of empirical evidence that the petitioner points to here. And the issue presented in this petition will be better suited for certiorari with such a record.


March 19, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

"Legal Punishment and Free Will: An Epistemic Argument Against Retributivism"

The title of this post is the title of this new paper authored by Gregg Caruso recently posted to SSRN. Here is its abstract:

Within the United States, one of the most prominent justifications for legal punishment is retributivism.  This retributivist justification for punishment maintains that punishment of a wrongdoer is justified for the reason that she deserves something bad to happen to her just because she has knowingly done wrong — this could include pain, deprivation, or death.  For the retributivist, it is the basic desert attached to the criminal’s immoral action alone that provides the justification for punishment.  This means that the retributivist position is not reducible to consequentialist considerations nor in justifying punishment does it appeal to wider goods such as the safety of society or the moral improvement of those being punished.  A number of sentencing guidelines in the U.S. have adopted desert as their distributive principle, and it is increasingly given deference in the “purposes” section of state criminal codes, where it can be the guiding principle in the interpretation and application of the code’s provisions.  Indeed, the American Law Institute recently revised the Model Penal Code so as to set desert as the official dominate principle for sentencing.  And courts have identified desert as the guiding principle in a variety of contexts, as with the Supreme Court’s enthroning retributivism as the “primary justification for the death penalty.”

While retributivism provides one of the main sources of justification for punishment within the criminal justice system, there are good philosophical and practical reasons for rejecting it.  One such reason is that it is unclear that agents truly deserve to suffer for the wrongs they have done in the sense required by retributivism.  In Section 1, I explore the retributivist justification of punishment and explain why it is inconsistent with free will skepticism.  In Section 2, I then argue that even if one is not convinced by the arguments for free will skepticism, there remains a strong epistemic argument against causing harm on retributivist grounds that undermines both libertarian and compatibilist attempts to justify it.  I maintain that this argument provides sufficient reason for rejecting the retributive justification of legal punishment.  I conclude in Section 3 by briefly sketching my public health-quarantine model, a non-retributive alternative for addressing criminal behavior that draws on the public health framework and prioritizes prevention and social justice.  I argue that the model is not only consistent with free will skepticism and the epistemic argument against retributivism, it also provides the most justified, humane, and effective way of dealing with criminal behavior.

March 19, 2018 in Purposes of Punishment and Sentencing | Permalink | Comments (0)

Sunday, March 18, 2018

Prez Trump reportedly to call for more capital cases under current federal laws, but not seeking new death penalty laws

Ever since Prez Trump starting talking up his affinity for using the death penalty for drug dealers, I have been wondering if he was planning to call for Congress to develop new capital statutes to help pursue that end.  But, according to this new Wall Street Journal piece, a big speech coming from Prez Trump on Monday will only call for more capital cases to be brought under existing federal criminal laws.  The WSJ piece carries this full on-line headline "Trump’s Opioid Battle Plan Includes Seeking More Death-Penalty Prosecutions: The president will ask the Justice Department to press more cases against drug traffickers under current law."  Here are highlights:

President Donald Trump on Monday will call for new steps to combat the opioid epidemic, including a push to reduce opioid prescriptions by a third over three years, asking the Justice Department to seek more death-penalty cases against drug traffickers under current law, and for federal support to expand the availability of overdose-reversal medication.

The proposals will come in a speech in the hard-hit state of New Hampshire. They form part of a broader blueprint by Mr. Trump, which senior White House officials on Sunday described as seeking to deploy education, law enforcement and treatment to try to reverse abuse of particularly addictive drugs that claim the lives of more than 100 people a day in the U.S.

Other elements of the strategy, the White House said, would include a fresh public-awareness campaign about drug abuse, a research-and-development partnership between the National Institutes of Health and pharmaceutical companies into opioid prescription alternatives, tougher sentences for fentanyl traffickers, and screening of all prison inmates for opioid addiction.

But it is the death penalty proposal that is likely to dominate discussion of the package.  “The Department of Justice will seek the death penalty against drug traffickers when it’s appropriate under current law,” said Andrew Bremberg, the president’s top domestic-policy adviser.

Senior White House officials referred specific questions about the death-penalty stance to the Justice Department but emphasized that the administration was seeking to use current law rather than call for a new federal statute.

A 1988 federal law imposes the death penalty on drug “kingpins” who commit murder in the course of their business.  Some legal analysts say that it has resulted in dozens of sentences but few executions since then.  John Blume, a law professor at Cornell Law School and director of its death-penalty project, said the statute as enforced to date typically has ensnared “mid- to low-level drug dealers…None of them were really objectively the people they said they were going to get.”...

In November, a presidential commission headed by Mr. Trump’s one-time political rival for the Republican presidential nomination, former Gov. Chris Christie of New Jersey, issued a 56-recommendation report that included calls for the federal government to set up drug courts across the U.S., retrain medical prescribers on opioid use and reduce incentives for doctors to offer the powerful painkillers. It also called for engaging with states to expand access to naloxone, an overdose-reversal drug. The administration accepts all 56 recommendations, a senior White House official said Sunday.

At a brief appearance at a White House summit on opioids earlier this month, Mr. Trump openly mused that other countries allow the death penalty for drug trafficking and that he believed they had less of a drug problem as a result. He said that translated into a need for more “strength.” He offered few further details, saying only that he also wanted to see the federal government bring legal action against opioid manufacturers, because “if the states are doing it, why isn’t the federal government doing it?”

Such remarks had sparked speculation that Mr. Trump would seek a new death penalty for drug trafficking, and with it, a revived debate about the permissibility of such laws under the constitutional amendment prohibiting cruel and unusual punishment. The Supreme Court has rejected capital punishment for crimes such as child rape in recent years and has taken a narrower view of arguments that seek to execute people for indirectly causing deaths through criminal actions.

Prior related posts:

March 18, 2018 in Criminal justice in the Trump Administration, Death Penalty Reforms, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (1)

Saturday, March 17, 2018

"Mass Incarceration: The Whole Pie 2018"

Pie2018The Prison Policy Initiative has an updated version of its terrific incarceration "pie" graphic and report now at this link. Here is part of the report's introductory text and subsequent discussion:

Can it really be true that most people in jail are being held before trial? And how much of mass incarceration is a result of the war on drugs? These questions are harder to answer than you might think, because our country’s systems of confinement are so fragmented. The various government agencies involved in the justice system collect a lot of critical data, but it is not designed to help policymakers or the public understand what’s going on. Meaningful criminal justice reform that reduces the massive scale of incarceration, however, requires that we start with the big picture.

This report offers some much needed clarity by piecing together this country’s disparate systems of confinement. The American criminal justice system holds almost 2.3 million people in 1,719 state prisons, 102 federal prisons, 1,852 juvenile correctional facilities, 3,163 local jails, and 80 Indian Country jails as well as in military prisons, immigration detention facilities, civil commitment centers, state psychiatric hospitals, and prisons in the U.S. territories. And we go deeper to provide further detail on why people are locked up in all of those different types of facilities.

This big-picture view allows us to focus on the most important drivers of mass incarceration and identify important, but often ignored, systems of confinement. The detailed views bring these overlooked parts of the “pie” to light, from immigration detention to civil commitment and youth confinement. In particular, local jails often receive short shrift in larger discussions about criminal justice, but they play a critical role as “incarceration’s front door” and have a far greater impact than the daily number suggests.

While this pie chart provides a comprehensive snapshot of our correctional system, the graphic does not capture the enormous churn in and out of our correctional facilities and the far larger universe of people whose lives are affected by the criminal justice system. Every year, 626,000 people walk out of prison gates, but people go to jail 10.6 million times each year. Jail churn is particularly high because most people in jails have not been convicted. Some have just been arrested and will make bail in the next few hours or days, and others are too poor to make bail and must remain behind bars until their trial. Only a small number (150,000 on any given day) have been convicted, generally serving misdemeanors sentences under a year.

With a sense of the big picture, a common follow-up question might be: how many people are locked up for a drug offense? We know that almost half a million people are locked up because of a drug offense. The data confirms that nonviolent drug convictions are a defining characteristic of the federal prison system, but play only a supporting role at the state and local levels. While most people in state and local facilities are not locked up for drug offenses, most states’ continued practice of arresting people for drug possession destabilizes individual lives and communities. Drug arrests give residents of over-policed communities criminal records, which then reduce employment prospects and increase the likelihood of longer sentences for any future offenses....

While this “whole pie” provides the most inclusive view of the various systems of confinement in the U.S. justice system available, these snapshots can’t capture all of the important systemic issues. Once we have wrapped our minds around the “whole pie” of mass incarceration, for example, we should zoom out and note that being locked up is just one piece of the larger pie of correctional control. There are another 840,000 people on parole and a staggering 3.7 million people on probation. Particularly given the often onerous conditions of probation, policymakers should be cautious of “alternatives to incarceration” that can easily widen the net of criminalization to people who are not a threat to public safety.

Beyond identifying the parts of the criminal justice system that impact the most people, we should also focus on who is most impacted and who is left behind by policy change. For example, people of color are dramatically overrepresented in the nation’s prisons and jails. These racial disparities are particularly stark for Blacks, who make up 40% of the incarcerated population despite representing only 13% of U.S residents. Gender disparities matter too: rates of incarceration have grown even faster for women than for men. As policymakers continue to push for reforms that reduce incarceration, they should avoid changes that will widen disparities, as has happened with juvenile confinement and with women in state prisons....

[A]rmed with the big picture of how many people are locked up in the United States, where, and why, we have a better foundation for the long overdue conversation about criminal justice reform. For example, the data makes it clear that ending the War on Drugs will not alone end mass incarceration, but that the federal government and some states have effectively reduced their incarcerated populations by turning to drug policy reform. Looking at the “whole pie” also opens up other conversations about where we should focus our energies:

  • What is the role of the federal government in ending mass incarceration? The federal prison system is just a small slice of the total pie, but the federal government can certainly use its financial and ideological power to incentivize and illuminate better paths forward. At the same time, how can elected sheriffs, district attorneys, and judges slow the flow of people into the criminal justice system?
  • Are state officials and prosecutors willing to rethink both the War on Drugs and the reflexive policies that have served to increase both the odds of incarceration and length of stay for “violent” offenses?
  • Do policymakers and the public have the focus to confront the second largest slice of the pie: the thousands of locally administered jails? And does it even make sense to arrest millions of poor people each year for minor offenses, make them post money bail, and then lock them up when they can’t afford to pay it? Will our leaders be brave enough to redirect corrections spending to smarter investments like community-based drug treatment and job training?
  • Can we implement reforms that both reduce the number of people incarcerated in the U.S. and the well-known racial and ethnic disparities in the criminal justice system?

March 17, 2018 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Friday, March 16, 2018

New Philly DA puts forward new policies intended to "end mass incarceration and bring balance back to sentencing"

Web-larry-krasner-winner-1024-x-576This Slate article, headlined "Philadelphia’s New Top Prosecutor Is Rolling Out Wild, Unprecedented Criminal Justice Reforms," reports on the remarkable new policies put forward by the former defense attorney who is the newly elected Philly DA.  Here are highlights:

On Tuesday, Krasner issued a memo to his staff making official a wave of new policies he had announced his attorneys last month. The memo starts: “These policies are an effort to end mass incarceration and bring balance back to sentencing.”

The most significant and groundbreaking reform is how he has instructed assistant district attorneys to wield their most powerful tool: plea offers. Over 90 percent of criminal cases nationwide are decided in plea bargains, a system which has been broken beyond repair by mandatory minimum sentences and standardized prosecutorial excess. In an about-face from how these transactions typically work, Krasner’s 300 lawyers are to start many plea offers at the low end of sentencing guidelines. For most nonviolent and nonsexual crimes, or economic crimes below a $50,000 threshold, Krasner’s lawyers are now to offer defendants sentences below the bottom end of the state’s guidelines. So, for example, if a person with no prior convictions is accused of breaking into a store at night and emptying the cash register, he would normally face up to 14 months in jail. Under Krasner’s paradigm, he’ll be offered probation. If prosecutors want to use their discretion to deviate from these guidelines, say if a person has a particularly troubling rap sheet, Krasner must personally sign off.

“It’s the mirror of a lot of offices saying, ‘If you don’t ask for the max you’ve got to get my permission,’ ” says David Rudovsky, a prominent Philadelphia civil rights attorney. For longtime career prosecutors, this will take some getting used to. “You want to be sure your assistants are actually doing it,” Rudovsky says.

Krasner’s lawyers are also now to decline charges for marijuana possession, no matter the weight, effectively decriminalizing possession of the drug in the city for all nonfederal cases. Sex workers will not be charged with prostitution unless they have more than two priors, in which case they’ll be diverted to a specialized court. Retail theft under $500 is no longer a misdemeanor in the eyes of Philly prosecutors, but a summary offense—the lowest possible criminal charge. And when ADAs give probation charges they are to opt for the lower end of the possible spectrum. “Criminological studies show that most violations of probation occur within the first 12 months,” the memo reads, “Assuming that a defendant is violation free for 12 months, any remaining probation is simply excess baggage requiring unnecessary expenditure of funds for supervision.” When a person does break the rules of probation, minor infractions such as missing a PO meeting are not to be punished with jail time or probation revocation, and more serious infractions are to be disciplined with no more than two years in jail.

In a move that may have less impact on the lives of defendants, but is very on-brand for Kranser, prosecutors must now calculate the amount of money a sentence would cost before recommending it to a judge, and argue why the cost is justified. He estimates that it costs $115 a day, or $42,000 a year, to incarcerate one person. So, if a prosecutor seeks a three-year sentence, she must state, on the record, that it would cost taxpayers $126,000 and explain why she thinks this cost is justified. Krasner reminds his attorneys that the cost of one year of unnecessary incarceration “is in the range of the cost of one year’s salary for a beginning teacher, police officer, fire fighter, social worker, Assistant District Attorney, or addiction counselor.”

The policies memo is available at this link, and all sentencing fans will want to check out the entire document.

March 16, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (18)

The latest account of Trump Administration's latest punitive ideas for responding to drug problems

Politico has this lengthy new article reviewing the soon-to-be-released (and perhaps still in development) plan from the Trump Administration to respond to the opioid crisis and other drug problems.  The piece is headlined "Trump finalizing opioid plan that includes death penalty for dealers," and here are excerpts (with an emphasis on punishment pieces though it seems there will be important public health parts to the coming plan):

The Trump administration is finalizing a long-awaited plan that it says will solve the opioid crisis, but it also calls for law enforcement measures — like the death penalty for some drug dealers — that public health advocates and congressional Republicans warn will detract from efforts to reverse the epidemic.

The ambitious plan, which the White House has quietly been circulating among political appointees this month, could be announced as soon as Monday when President Donald Trump visits New Hampshire, a state hard hit by the epidemic. It includes a mix of prevention and treatment measures that advocates have long endorsed, as well as beefed-up enforcement in line with the president’s frequent calls for a harsh crackdown on drug traffickers and dealers.

Trump’s plan to use the death penalty in some cases found at least one fan among congressional Republicans: Rep. Chris Collins of New York, one of the president’s most consistent cheerleaders. “I’m all in on the capital punishment side for those offenses that would warrant that,” he said when asked about the plans Thursday afternoon. “Including drug cases. Yep.”

But several congressional Democrats said they were alarmed by Trump's plan to ramp up punishment. “We are still paying the costs for one failed 'war on drugs,' and now President Trump is drawing up battle plans for another," said Sen. Ed Markey of Massachusetts. "We will not incarcerate or execute our way out of the opioid epidemic."

The White House's most concrete proposal yet to address opioids comes after complaints from state health officials and advocates that Trump has moved too slowly to combat the epidemic after his bold campaign promises to wipe out the crisis touching all parts of the country.

However, the plan could cost billions of dollars more than Trump budgeted — and likely far more than any funding package that Congress would approve — raising questions about how much of it can actually be put into practice. Trump's emphatic embrace of the death penalty for some drug dealers has also alarmed some advocates, who say the idea has been ineffective when tried in other countries and resurrects the nation’s unsuccessful war on drugs.

Under the most recent version of the plan, which has gone through several revisions, the Trump administration proposes to change how the government pays for opioid prescriptions to limit access to powerful painkillers. It also calls on Congress to change how Medicaid pays for treatment, seeking to make it easier for patients with addictions to get inpatient care. It would also create a new Justice Department task force that more aggressively monitors internet sales....

POLITICO obtained two versions of the White House plan and spoke with four individuals who have reviewed it. The White House confirmed that a plan was in development but didn’t respond to multiple requests for further comment. Many of the measures in the plan were recommended by the president’s opioids commission last fall or discussed at a March 1 White House opioid summit. For instance, it endorses a long-promised priority: greatly expanding first responders' access to naloxone, a medication used to reverse opioid overdoses. It also calls on states to adopt a prescription drug monitoring database that health care providers can access nationwide to flag patients seeking out numerous opioid prescriptions.

On the policing side, the plan would ramp up prosecution and punishment, underscoring the tension in how public health advocates and law enforcement officials approach the crisis. Public health advocates say the nation's opioid epidemic should be treated as a disease, with emphasis on boosting underfunded treatment and prevention programs. But some law enforcement officials back tougher punishments as a deterrent, especially for drug dealers. The two camps don’t always see eye-to-eye, at times pitting HHS and DOJ officials against each other. “There is a lot of internal dissension between the health folks and the enforcement folks,” said an official involved in the crafting of the plan.

While Trump this month repeatedly suggested using the death penalty to deter drug dealers and traffickers — an idea roundly opposed by public health advocates — many lawmakers have said they weren’t sure whether to take the idea seriously. “I would have to strongly evaluate and look at any proposal like that,” said Sen. Dan Sullivan (R-Alaska) on Wednesday. “I don’t know if the president was serious or just said it off the cuff. … It’s a big issue when you decide to bring a capital case or pass a law that allows for capital punishment.”

According to language circulating this week, the Trump administration will call for the death penalty as an option in "certain cases where opioid, including Fentanyl-related, drug dealing and trafficking are directly responsible for death."

Sen. Shelley Moore Capito (R-W.Va.), whose home state is one of the hardest hit by the opioid epidemic, said she doesn't support the death penalty for drug cases. “I mean, I get the message he’s delivering: We’ve got to treat it seriously,” she said. “I don’t see that that’s going to solve the problem.”

The White House plan also calls for making it easier to invoke the mandatory minimum sentence for drug traffickers who knowingly distribute illegal opioids that can be lethal, like fentanyl. It also proposes a new Justice Department task force known as “Prescription Interdiction and Litigation,” or PIL, which would be empowered to step up prosecutions of criminally negligent doctors, pharmacies and other providers.

As serious sentencing fans perhaps already realize, though any proposal for the death penalty for drug dealers is sure to garner a lot of attention, proposals to expand the reach or application of mandatory minimum sentences are sure to be far more consequential to the day-to-day operation of the federal criminal justice system.

Prior related posts:

March 16, 2018 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (8)

Thursday, March 15, 2018

"Mandatory Minimum Penalties for Firearms Offenses in the Federal Criminal Justice System"

The title of this post is the title of this notable new 80-page report issued today by the United States Sentencing Commission. Here is the USSC's Summary and account of Key Findings from this webpage:

This publication is the third in the Commission’s series on mandatory minimum penalties. Using fiscal year 2016 data, this publication includes analyses of the two statutes carrying a firearms mandatory minimum penalty, 18 U.S.C. § 924(c) (relating to using or possessing firearms in furtherance of drug trafficking or crimes of violence) and the Armed Career Criminal Act, 18 U.S.C. § 924(e), as well as the impact of those provisions on the Federal Bureau of Prisons (BOP) population. Where appropriate, the publication highlights changes and trends since the Commission’s 2011 Mandatory Minimum Report....

Building directly on previous reports and the analyses set forth in the 2017 Overview Publication, this publication examines the use and impact of mandatory minimum penalties for firearms offenses. As part of this analysis, the Commission makes the following key findings:

Firearms mandatory minimum penalties continue to result in long sentences although they have decreased since fiscal year 2010.

  • In fiscal year 2016, offenders convicted under section 924(c) received an average sentence of over 12 years (151 months) of imprisonment, which is 13 months less than in fiscal year 2010. The average sentence length depended on the applicable mandatory minimum penalty under section 924(c), increasing from 118 months for the five-year mandatory minimum penalty to 302 months where a 30-year mandatory minimum penalty applied.
  • Similarly, in fiscal year 2016, offenders convicted of an offense carrying the 15-year mandatory minimum penalty under the Armed Career Criminal Act received an average sentence of over 15 years (182 months) of imprisonment, which is nine months less than in fiscal year 2010.
  • As a result of these long sentences, offenders convicted of an offense carrying a firearms mandatory minimum penalty continued to significantly contribute to the size of the Federal Bureau of Prisons’ population, constituting 24,905 (14.9%) of the 166,771 offenders in federal prison as of September 30, 2016.

Offenders charged with and convicted of multiple counts under section 924(c) received exceptionally long sentences as a result of the statutory requirement that the sentence for each count be served consecutively.

  • While only 156 (7.9%) of the 1,976 offenders convicted under section 924(c) in fiscal year 2016 were convicted of multiple counts under that statute, they received exceptionally long sentences. The average sentence for offenders convicted of multiple counts under section 924(c) exceeded 27 years of imprisonment (327 months), nearly two-and-a-half times the average sentence for offenders convicted of a single count under section 924(c) (136 months).
  • The average sentence for offenders who remained subject to the mandatory minimum penalty required by multiple counts under section 924(c) was even longer at almost 36 years (431 months).

In addition, other charging and plea decisions also play a significant role in the application and impact of firearms mandatory minimum penalties.

  • The majority of section 924(c) offenders (85.5%) were also convicted of another offense, which is consistent with the statutory requirement that an offender must have used or possessed a firearm during and in relation to, or in furtherance of, an underlying federal offense in order to be convicted under section 924(c).
  • Conversely, 14.5 percent of offenders were convicted of an offense under section 924(c) alone, although those cases necessarily involved another federal offense for which they were not charged and convicted.
  • Those offenders convicted of an offense under section 924(c) alone received an average sentence that was five years shorter than offenders convicted under section 924(c) and another offense (99 months compared to 159 months).

Statutory relief under 18 U.S.C. § 3553(e) for providing substantial assistance to the government plays a significant role in the application and impact of firearms mandatory minimum penalties.

  • The 21.6 percent of offenders who received relief from the mandatory minimum penalty under section 924(c) for providing substantial assistance received average sentences of 95 months, compared to 166 months for offenders who remained subject to the mandatory minimum penalty at sentencing.
  • The impact of receiving relief is even more pronounced for offenders convicted of multiple counts under section 924(c). Such offenders received average sentences that were less than one-third as long as offenders who remained subject to the mandatory minimum penalty required under section 924(c)—136 months compared to 431 months.
  • Similarly, almost one-fifth (19.7%) of offenders convicted of an offense carrying the mandatory minimum penalty under the Armed Career Criminal Act received relief for providing substantial assistance, and their average sentence was 112 months compared to 200 months for offenders who remained subject to the mandatory minimum penalty at sentencing.

While the rate at which firearms offenders were convicted of an offense carrying a mandatory minimum has been stable, the number of offenders convicted of offenses carrying such penalties has decreased significantly since fiscal year 2010.

  • Less than one-third (30.8%) of all firearms offenders in fiscal year 2016 were convicted of an offense carrying a mandatory minimum penalty, which is almost identical to fiscal year 2010 (30.6%).
  • However, between fiscal years 2010 and 2016, the number of offenders convicted under section 924(c) decreased from 2,360 to 1,976, a 16.2 percent decrease. The number of offenders convicted of an offense carrying a mandatory minimum penalty under the Armed Career Criminal Act decreased 51.4 percent from 626 to 304, which is the lowest number of such offenders since fiscal year 2002 (n=292).
  • Firearms offenses accounted for 16.8 percent of all offenses carrying a mandatory minimum penalty in fiscal year 2016 compared to 14.4 percent in fiscal year 2010.

Firearms mandatory minimum penalties continue to impact Black offenders more than any other racial group.

  • Black offenders were convicted of a firearms offense carrying a mandatory minimum more often than any other racial group. In fiscal year 2016, Black offenders accounted for 52.6 percent of offenders convicted under section 924(c), followed by Hispanic offenders (29.5%), White offenders (15.7%) and Other Race offenders (2.2%).
  • The impact on Black offenders was even more pronounced for offenders convicted either of multiple counts under section 924(c) or offenses carrying a mandatory minimum penalty under the Armed Career Criminal Act. Black offenders accounted for more than two-thirds of such offenders (70.5% and 70.4%, respectively).
  • Black offenders also generally received longer average sentences for firearms offenses carrying a mandatory minimum penalty than any other racial group. In fiscal year 2016, Black offenders convicted under section 924(c) received an average sentence of 165 months, compared to 140 months for White offenders and 130 months for Hispanic offenders. Only Other Race offenders received longer average sentences (170 months), but they accounted for only 2.2 percent of section 924(c) offenders.
  • Similarly, Black offenders convicted of an offense carrying a mandatory minimum penalty under the Armed Career Criminal Act received longer average sentences than any other racial group at 185 months, compared to 178 months for White offenders, 173 months for Hispanic offenders, and 147 months for Other Race offenders. 

March 15, 2018 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Gun policy and sentencing, Mandatory minimum sentencing statutes | Permalink | Comments (1)

Wednesday, March 14, 2018

Oklahoma embracing nitrogen gas instead of lethal drugs as method of execution

Images (3)As detailed in this new CNN piece, headlined "Oklahoma plans to use new execution method," the Sooners are soon to be trying a novel execution protocol. Here are the details:

Unable to obtain drugs to use for its lethal injections, Oklahoma will use inert gas inhalation as the primary method for death penalty executions once a protocol is developed and finalized, the state's attorney general announced Wednesday. Oklahoma is the first state to adopt this method.

"As you know, in Oklahoma, a bill that was signed back in 2015 by the governor states that if lethal injection is held unconstitutional or is unavailable, an execution shall be carried out by nitrogen hypoxia," Attorney General Mike Hunter said. "We are exercising that option." Nitrogen is one of several inert gases that can cause hypoxia, an oxygen deficiency that causes death.

Oklahoma Department of Corrections Director Joe M. Allbaugh said his office will prepare the legal documents within the next 90 to 120 days and, if that's acceptable, the attorney general will move forward with the protocol. Hunter said the state is "at the very beginning of this process ... and will provide updates as they become available."

Currently, 49 people sit on death row in Oklahoma; 16 have exhausted their ability to appeal their cases, Allbaugh said. The state has struggled to find legally obtainable lethal injection drugs, he said. It previously used a three-drug combination: an anesthetic (either sodium thiopental, pentobarbital or midazolam), a paralytic agent (pancuronium bromide) and a heart-stopping agent to cause death (potassium chloride), according to the nonprofit Death Penalty Information Center....

The bipartisan Oklahoma Death Penalty Review Commission issued a study of the death penalty in the state on April 25. The report concluded that the moratorium should remain in place until significant reforms to the death penalty process are made, and recommended a one-drug barbiturate execution protocol.

But Hunter said inert gas inhalation is used in countries that have legalized assisted suicide. A 2010 Journal of Medical Ethics study, based on experiments performed by Swiss organization Dignitas, found that the dying process of oxygen deprivation caused by an inert gas is "potentially quick and appears painless." "It also bypasses the prescribing role of physicians, effectively demedicalizing assisted suicide," the researchers wrote.

Hunter said that "using an (inert gas inhalation) will be effective, simple to administer, easy to obtain and requires no complex medical procedures." "Research has shown that individuals exposed to an excessive amount of inert gas experience fatigue, dizziness, perhaps a headache, loss of breath and eventual loss of consciousness," he said, citing the US Air Force Flight Surgeon's Guide, which looks at cases of pilots breathing excessive amounts of inert gas.

Hunter said that people who die by inhalation of inert gases are dead within just a few minutes. The method is "safest, best and most effective," he said.

By contrast, the American Veterinary Medical Association's Guidelines for the Euthanasia of Animals recommend the use of nitrogen for chickens, turkeys and pigs but say it's unacceptable for other mammals. "These gases create an anoxic environment that is distressing for some species," the authors say.

Oklahoma re-enacted the death penalty in 1973 and, since 1976, has performed 112 executions. Hunter noted that an overwhelming majority of the Oklahoma electorate voted to amend the Constitution and guarantee the state's power to impose capital punishment two years ago.

March 14, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (11)

Interesting data from the US Courts on federal criminal justice caseloads in FY 2017

The Administrative Office of the U.S. Courts yesterday released here is Annual Report on "Judicial Business 2017" providing lots of statistics on the work of the federal Judiciary for the fiscal year ending September 30, 2017. Here are some criminal justice-related items from data pages here and here that caught my eye:

This year, filings in the U.S. courts of appeals declined 16 percent to 50,506. Total filings in the U.S. district courts decreased 7 percent to 344,787 as civil case filings dropped 8 percent to 267,769, although filings for criminal defendants remained relatively stable at 77,018....

Filings in the regional courts of appeals, which rose 15 percent the previous year, dropped 16 percent to 50,506 in 2017. Filings by pro se litigants, which accounted for 50 percent of new cases, went down 20 percent. Civil appeals grew 1 percent. Criminal appeals fell 14 percent.

Filings for criminal defendants (including those transferred from other districts) remained stable, decreasing less than 1 percent to 77,018.

The biggest numeric decline was in filings for defendants charged with property offenses, which fell 6 percent to 10,115 filings and accounted for 13 percent of total criminal filings.  Filings for defendants charged with fraud, which constituted 9 percent of total filings and 71 percent of property offense filings, dropped 5 percent to 7,165.  Fraud filings related to identification documents and information, which are often associated with immigration crimes, decreased 16 percent to 639.

Drug crimes remained the offenses prosecuted most frequently in the U.S. district courts, constituting 32 percent of all defendant filings. Filings for defendants charged with crimes related to marijuana decreased 19 percent to 4,181.  Filings for non-marijuana defendants rose 4 percent to 20,175.  Filings related to the sale, distribution, or dispensing of illegal drugs decreased 17 percent to 2,249 for marijuana and rose 1 percent to 17,560 for all other drugs.

Criminal filings for defendants charged with immigration offenses fell 2 percent to 20,438 and accounted for 27 percent of criminal filings. This was the lowest total since 2007. Defendants charged with improper reentry by an alien decreased 3 percent to 16,554, and those charged with improper entry by an alien dropped 12 percent to 172.  Immigration filings in the five southwestern border districts declined 7 percent to 15,638 and constituted 77 percent of national immigration defendant filings, compared to 81 percent in 2016.  Filings fell 32 percent in the District of New Mexico, 16 percent in the Southern District of Texas, and 5 percent in the District of Arizona, but rose 51 percent in the Southern District of California and 6 percent in the Western District of Texas.

General offense defendants declined 5 percent and amounted to 2 percent of total criminal filings. Reductions also occurred in filings related to violent offenses (down 1 percent) and sex offenses (also down 1 percent); each of these categories constituted 4 percent or less of total criminal filings.

Filings for defendants prosecuted for firearms and explosives offenses rose 11 percent to 9,672 and represented 13 percent of total criminal filings. Filings involving justice system offenses, which increased 5 percent, constituted 1 percent of total criminal filings. Defendants charged with regulatory offenses grew 3 percent and accounted for 2 percent of total criminal filings. Traffic offense filings increased 2 percent to 2,292 and accounted for 3 percent of total criminal filings.

Because FY 2017 ending in Sept 2017 really represents a big transition year at the executive branch, it is way too early to draw too much from these data concerning the patterns of prosecution we might expect during the Trump years. But these data present an interesting baseline from which to look for notable patterns that might develop in the years ahead.

March 14, 2018 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Data on sentencing | Permalink | Comments (1)

Tuesday, March 13, 2018

"Principles of Risk Assessment: Sentencing and Policing"

The title of this post is the title of this new essay by Christopher Slobogin recently posted to SSRN. Here is the abstract:

Risk assessment — measuring an individual’s potential for offending — has long been an important aspect of criminal justice, especially in connection with sentencing, pretrial detention and police decision-making.  To aid in the risk assessment inquiry, a number of states have recently begun relying on statistically-derived algorithms called “risk assessment instruments” (RAIs).  RAIs are generally thought to be more accurate than the type of seat-of-the-pants risk assessment in which judges, parole boards and police officers have traditionally engaged.  But RAIs bring with them their own set of controversies.

In recognition of these concerns, this brief paper proposes three principles — the fit principle, the validity principle, and the fairness principle — that should govern risk assessment in criminal cases.  After providing examples of RAIs, it elaborates on how the principles would affect their use in sentencing and policing.  While space constraints preclude an analysis of pretrial detention, the discussion should make evident how the principles would work in that setting as well.

March 13, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Technocorrections | Permalink | Comments (1)

Another US Sentencing Commission public hearing on alternatives to incarceration and synthetic drugs

As noted in this prior post, last year the United States Sentencing Commission had a public hearing exploring alternatives to incarceration programs and synthetic drugs.  This webpage with the USSC hearing agenda has links to written testimony from all the scheduled witnesses at that prior 2017 heading, and this testimony provide a wealth of information and research about alternatives to incarceration and synthetic drugs.

Tomorrow, as detailed on this USSC webpage, the United States Sentencing Commission in scheduled to conduct another public hearing on these topics (in part because the USSC never formally moved forward with any guidelines amendments on these topics because of an incomplete membership). As the new hearing page details, "the purpose of the public hearing is for the Commission to receive testimony on proposed amendments to the federal sentencing guidelines related to Synthetic Drugs and First Offenders/Alternatives to Incarceration."

March 13, 2018 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)

Monday, March 12, 2018

"A Touchy Subject: The Eleventh Circuit's Tug-of-War Over What Constitutes Violent 'Physical Force'"

The title of this post is the title of this notable new article authored by Conrad Kahn and Danli Song now available via SSRN. Here is the abstract:

In a prosecution for possession of a firearm by a convicted felon, a pivotal question is whether an individual is subject to a sentencing enhancement under the Armed Career Criminal Act (ACCA).  If an individual has three or more prior convictions that qualify as “violent felonies” or “serious drug offenses,” the ACCA increases his statutory range of imprisonment from zero-to-ten years to fifteen years to life.

Historically, a prior conviction could qualify as a “violent felony” if it satisfied at least one of the three “violent felony” clauses—the elements clause, the enumerated-offenses clause, or the catch-all residual clause.  But on June 26, 2015, the Supreme Court invalidated the residual clause in Johnson v. United States, 135 S. Ct. 2551 (2015) (Johnson II).

Since Johnson II, substantial disagreements have emerged both within the Eleventh Circuit and among the other circuits regarding Johnson II’s reach and the proper application of the ACCA's elements clause.  This Article examines those disagreements, including three ways the Eleventh Circuit got it wrong — specifically, the court’s unusual conduct in ruling on requests to file second or successive post-conviction motions based on Johnson II and recent rulings on whether the Florida offenses of robbery and felony battery qualify as “violent felonies” under the elements clause.  This Article argues the ACCA’s elements-clause analysis should focus on the degree of force used in an act, and the Supreme Court should resolve these disagreements and provide guidance to the lower courts by reviewing whether one of these offenses satisfies the elements clause.

March 12, 2018 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Vagueness in Johnson and thereafter | Permalink | Comments (6)

March madness + spring break = light blogging

A host of great distractions this Spring Break week will likely mean  more time away from the computer and thus less blogging in this space.  The Murphy’s Law of blogging would suggest that we will get a lot of blog-worthy sentencing developments while I am away, but perhaps there will be a relative calm in the sentencing waters before SCOTUS gets back in action next week.  

March 12, 2018 in On blogging | Permalink | Comments (2)

Sunday, March 11, 2018

"More Imprisonment Does Not Reduce State Drug Problems"

The title of this post is the title of this notable new Issue Brief from Pew with a message summarized by the document's subtitle: "Data show no relationship between prison terms and drug misuse." Here is the document's overview:

Nearly 300,000 people are held in state and federal prisons in the United States for drug-law violations, up from less than 25,000 in 1980.  These offenders served more time than in the past: Those who left state prisons in 2009 had been behind bars an average of 2.2 years, a 36 percent increase over 1990, while prison terms for federal drug offenders jumped 153 percent between 1988 and 2012, from about two to roughly five years.

As the U.S. confronts a growing epidemic of opioid misuse, policymakers and public health officials need a clear understanding of whether, how, and to what degree imprisonment for drug offenses affects the nature and extent of the nation’s drug problems.  To explore this question, The Pew Charitable Trusts examined publicly available 2014 data from federal and state law enforcement, corrections, and health agencies.  The analysis found no statistically significant relationship between state drug imprisonment rates and three indicators of state drug problems: self-reported drug use, drug overdose deaths, and drug arrests.

The findings — which Pew sent to the President’s Commission on Combating Drug Addiction and the Opioid Crisis in a letter dated June 19, 2017 — reinforce a large body of prior research that cast doubt on the theory that stiffer prison terms deter drug misuse, distribution, and other drug-law violations.  The evidence strongly suggests that policymakers should pursue alternative strategies that research shows work better and cost less.

March 11, 2018 in Data on sentencing, Drug Offense Sentencing, National and State Crime Data, Scope of Imprisonment | Permalink | Comments (1)

"'A Day Late and a Dollar Short': President Obama's Clemency Initiative 2014"

The title of this post is the title of this notable new paper by Paul Larkin now available via SSRN.  Here is its abstract:

Over his last two years in office, President Barack Obama used his Article II Pardon Clause power to commute the sentences imposed on more than 1,700 drug offenders. In a 2017 law review article, he congratulated himself for reinvigorating the federal clemency process. His clemency initiative, however, was hardly the unqualified success that he claims.

Obama waited far too long before undertaking his effort. He should have started it in 2010, rather than in 2014.  That would have allowed the thousands of clemency decisions he made to be handled at a more reasonable pace and probably more accurately.  He also should have issued a general conditional commutation order rather than undertake a case-by-case re-examination of the sentence each clemency applicant received. That would have allowed district court judges, who are far better than any president could be at making sentencing decisions, to resentence each offender.  Finally, he should have reformed the clear structural defect in the federal clemency process.  The Department of Justice controls the clemency application process even though, as the agency that prosecuted every clemency applicant, the department suffers from an actual or apparent conflict of interest.  In sum, Obama could have done far more by doing far less or by doing something far different than by acting as the Resentencer-in-Chief.

March 11, 2018 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Saturday, March 10, 2018

Trump Administration reportedly looking (seriously?) at the death penalty for serious drug dealers

In reported in prior posts here and here, Prez Trump has reportedly talked privately about how drug dealers are as bad as serial killers and has talked publicly about using the "ultimate penalty" to address drug problems. Now according to this new Washington Post article, headlined "Trump administration studies seeking the death penalty for drug dealers," these musings by President Trump are now a policy proposal being seriously examined by the administration:

The Trump administration is studying new policy that could allow prosecutors to seek the death penalty for drug dealers, according to people with knowledge of the discussions, a sign that the White House wants to make a strong statement in addressing the opioid crisis.

President Trump last week suggested executing drug dealers as a way to make a dent in opioid addiction. Opioids killed nearly 64,000 people in 2016, and the crisis is straining local health and emergency services.

People familiar with the discussions said that the president’s Domestic Policy Council and the Department of Justice are studying potential policy changes and that a final announcement could come within weeks. The White House has said one approach it might take is to make trafficking large quantities of fentanyl — a powerful synthetic opioid — a capital crime because even small amounts of the drug can be fatal. White House officials also are studying tougher noncapital penalties for large-scale dealers.

Trump said last week that the administration would soon roll out unspecified “strong” policies on opioids. White House officials said Trump has privately expressed interest in Singapore’s policy of executing drug dealers. “Some countries have a very tough penalty, the ultimate penalty, and they have much less of a drug problem than we do,” Trump said during an appearance at a White House summit on opioids last week.

Trump also has endorsed Philippine President Rodrigo Duterte’s approach to the issue; Duterte’s “drug war” has led to the deaths of thousands of people by extrajudicial police killings. Last year, Trump praised Duterte in a phone call for doing an “unbelievable job on the drug problem,” according to the New York Times. Kellyanne Conway, counselor to the president, is leading much of the work on opioids for the White House. Singaporean representatives have briefed senior White House officials on their country’s drug policies, which include treatment and education, but also the death penalty, and they provided a PowerPoint presentation on that country’s laws.

Singapore’s model is more in line with the administration’s goals for drug policy than some other countries, a senior administration official said. “That is seen as the holistic approach that approximates what this White House is trying to do,” a senior administration official said....

Federal law currently allows for the death penalty to be applied in four types of drug-related cases, according to the Death Penalty Information Center: murder committed during a drug-related drive-by shooting, murder committed with the use of a firearm during a drug trafficking crime, murder related to drug trafficking and the death of a law enforcement officer that relates to drugs.

Peter H. Meyers, a professor at the George Washington University School of Law, said he doesn’t agree with the idea of adding more capital crimes for drug dealers, but he said it could be a legal approach: “It very likely would be constitutional if they want to do it.”

The administration’s directives come as prosecutors nationwide are cracking down on higher-level drug dealers and law enforcement officials are looking at increased penalties for fentanyl trafficking and dealing. But at the same time, public health officials — including those in the Trump administration — and many in law enforcement are emphasizing treatment rather than punitive measures for low-level users and those addicted to drugs.

Attorney General Jeff Sessions has directed federal prosecutors to pursue the most severe penalties for drug offenses.  The Department of Justice said last year it will aggressively prosecute traffickers of any fentanyl-related substance.

If (when?) we see a serious formal death penalty proposal for drug dealers, I will have a lot more to say on the topic. For now, I will be content with three "hot takes" (with number 3 to get a lot more attention if this discourse continues):

1. It is not at all clear that death sentences for drug dealers, even for those whose drugs cause multiple deaths, would be constitutional; it is entirely clear that the issue would be litigated extensively and would have to be definitively decided by the US Supreme Court.

2. If Prez Trump is truly interested in "executing drug dealers" rather than just sending them to death row, he needs to get his Justice Department to get serious about trying to actually execute some of the five dozens murderers languishing  on federal death row (some of whom have been on federal death row for two decades or longer).  

3. If the White House (and/or Attorney General Sessions) is seriously interested in a legislative proposal to make the "worst of the worst" drug dealers eligible for the death penalty, I would seriously urge Senate Judiciary Chair Chuck Grassley to consider adding the proposal to his Sentencing Reform and Corrections Act as part of an effort to get the White House and AG Sessions to support that bill.  Even if drafted broadly, any federal "death penalty for drug dealers" law would likely only impact a few dozen cases per year, whereas the SRCA will impact tens of thousands of cases every year.  And the SRCA could help tens of thousands of least serious drug offenders while any death penalty bill would impact only the most serious drug offenders.

Prior related posts:

UPDATE: Not long after this posting, Prez Trump gave a speech in Pennsylvania that, as reported in this new Washington Post piece, covered this ground and received a positive response for the audience:

President Trump on Saturday again called for enacting the death penalty for drug dealers during a rally meant to bolster a struggling GOP candidate for a U.S. House seat here. During the campaign event in this conservative western Pennsylvania district, the president also veered off into a list of other topics, including North Korea, his distaste for the news media and his own election victory 16 months ago.

Trump said that allowing prosecutors to seek the death penalty for drug dealers — an idea he said he got from Chinese President Xi Jinping — is “a discussion we have to start thinking about. I don’t know if this country’s ready for it.”

“Do you think the drug dealers who kill thousands of people during their lifetime, do you think they care who’s on a blue-ribbon committee?” Trump asked. “The only way to solve the drug problem is through toughness. When you catch a drug dealer, you’ve got to put him away for a long time.”

It was not the first time Trump had suggested executing drug dealers. Earlier this month, he described it as a way to fight the opioid epidemic. And on Friday, The Washington Post reported that the Trump administration was considering policy changes to allow prosecutors to seek the death penalty.

But on Saturday his call for executing drug dealers got some of the most enthusiastic cheers of the night. As Trump spoke about policies on the issue in China and Singapore, dozens of people nodded their heads in agreement. “We love Trump,” one man yelled. A woman shouted: “Pass it!”

March 10, 2018 in Criminal justice in the Trump Administration, Death Penalty Reforms, Drug Offense Sentencing | Permalink | Comments (6)

Iowa Supreme Court issues latest major ruling on juve sentencing limits and process after Miller

As reported in this local article, the "Iowa Supreme Court on Friday offered guidance to judges for interpreting a 2015 law that lays out sentencing guidelines for juveniles convicted of murder."  Here is more from the press report about the latest in a series of rulings following up on the US Supreme Court's juve sentencing jurisprudence:

Some justices also signaled in concurring opinions that they believe rigid sentences for other crimes committed by juveniles should eventually be rolled back.

The court ruled Friday in a murder case in which Rene Zarate stabbed Jorge Ramos to death in 1999, when Zarate was 15.  Zarate, now 34, originally received a mandatory sentence of life without parole, but requested a resentencing hearing after a 2012 U.S. Supreme Court ruling prohibited such sentences for juveniles.  His new sentence makes him eligible for parole after 25 years, with credit for time served.

Zarate challenged his sentence as well as the constitutionality of a 2015 Iowa law that revised how juveniles who commit first-degree murder are sentenced. Under the law, the sentencing judge could choose from a variety of options including life without the possibility of parole, life with parole after a certain amount of the sentence is served, and life with the immediate possibility of parole.  The law further outlined 25 factors for the court to take into consideration when sentencing juveniles for murder.

In 2016, after that law was passed, the Iowa Supreme Court found that life sentences without parole are unconstitutional for juveniles.  But Friday's ruling was the first time the Iowa Supreme Court addressed the new law. A majority of justices said Friday that the guidelines laid out in the law are constitutional — except for the subsection that allowed for life sentences without parole....

They said judges must give juvenile offenders an individualized hearing taking the circumstances of the case into account, and must consider as mitigating factors things such as the offender's age at the time of the crime, family and home environment and the possibility for rehabilitation and change. But the district court judge who re-sentenced Zarate did so based on his belief that anyone that anyone who takes the life of another individual should spend a certain amount of time in prison, according to the opinion joined by four of the seven justices. "The sentencing judge allowed the nature of Zarate’s offense to taint his analysis by imposing a mandatory minimum sentence of imprisonment due to his belief that there should be a minimum term of imprisonment for anyone who commits murder, regardless of their age at the time of the offense," Justice Bruce Zager wrote in the majority opinion....

The court's remaining three justices issued separate concurrences urging the court to go further in striking down mandatory minimums for juveniles as unconstitutional. Justice Brent Appel, who authored the court's earlier opinion against life sentences without parole for juveniles, said it's time to re-examine the constitutionality of all mandatory minimum sentences for minors who commit crimes. "Instead of imposing mandatory minimums through an unreliable judicial guess, the constitutionally sound approach is to abolish mandatory minimum sentences on children and allow the parole board to make periodic judgments as to whether a child offender has demonstrated maturity and rehabilitation based on an observable track record," Appel wrote in his concurrence.

Justice Daryl Hecht, writing a concurrence joined by Justice David Wiggins, wrote that he believes mandatory minimums for juveniles are categorically prohibited by the Iowa Constitution. "Whether imposed by legislative mandate or by a sentencing court, the constitutional infirmity of mandatory minimum sentences for juvenile offenders is the same in my view," Hecht wrote.

The full opinion in Iowa v. Zarate, No. 15-2203 (Iowa Mar. 9, 2018), which rests much of its constitutional analysis on the Iowa Constitution's prohibition against cruel and unusual punishment (rather than the US Constitution's Eighth Amendment), is available at this link.

March 10, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)