Sunday, December 17, 2017

Looking at latest notable Texas death penalty realities

Number_of_executions_between_2000-2017_the_united_states_texas_harris_county_chartbuilder_8a62cc520e6ffbae4480cedf31ee36ed.nbcnews-ux-600-480This new NBC News article, headlined "Why Texas’ ‘death penalty capital of the world’ stopped executing people," reviews how Texas has become fairly representative of the entire United States with a more limited use of capital punishment. Here are excerpts:

Since the Supreme Court legalized capital punishment in 1976, Harris County, Texas, has executed 126 people.  That's more executions than every individual state in the union, barring Texas itself.  Harris County's executions account for 23 percent of the 545 people Texas has executed. On the national level, the state alone is responsible for more than a third of the 1,465 people put to death in the United States since 1976.

In 2017, however, the county known as the "death penalty capital of the world" and the "buckle of the American death belt" executed and sentenced to death an astonishing number of people: zero. This is the first time since 1985 that Harris County did not execute any of its death row inmates, and the third year in a row it did not sentence anyone to capital punishment either.

The remarkable statistic reflects a shift the nation is seeing as a whole. The number of executions has been trending downward across the United States, but it's particularly noticeable in Texas and Harris County.

“The practices that the Harris County District Attorney’s Office is following are also significant because they reflect the growing movement in the United States toward reform prosecutors who have pledged to use the death penalty more sparingly if at all,” said Robert Dunham, the director of the Death Penalty Information Center.

The city of Houston lies within the confines of Harris County, making it one of the most populous counties in the country — and recently it became one of the most diverse, with a 2012 Rice University report concluded that Houston has become the most diverse city in the country. Under these new conditions, Kim Ogg ran in 2016 to become the county’s district attorney as a reformist candidate who pledged to use the death penalty in a more judicious manner than her predecessors, though the longtime prosecutor didn’t say she would abandon it altogether.  Rather, Ogg said she would save it for the “worst of the worst” — such as serial killer Anthony Shore, who was rescheduled for execution next month.

But this year, Ogg appears to have held true to her promise of only pursuing the death penalty in what she deems the most extreme cases.  It represents a break from a long pattern of Harris County prosecutors who pushed for the death penalty in nearly all capital cases. “The overall idea of what makes us safer is changing,” Ogg said. “We’re reframing the issues.  It’s no longer the number of convictions or scalps on the wall. It’s making sure the punishment meets the crime....”

But Ogg said she cannot alone take credit for the recent drop in executions.  The trend precedes her slightly and can also be connected to better educated and more diverse jury pools, as well as Texas’ new sentencing option of life without parole.  The state also has a more skilled group of indigent defense lawyers who build up mitigating circumstances — such as an abusive childhood or mental illness — for an alleged murderer’s crime.

Even a state like Texas might stop sentencing alleged killers to death in the near future. And that trend could well extend nationwide. “We’ve seen a deepening decline in the death penalty since the year 2000, and some states fell faster than others,” said University of Virginia law professor Brandon Garrett, who wrote “End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice.” He added that the declines are steepest in counties that had sentenced the most people to death.

December 17, 2017 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

A light dusting of holiday season highlights from Marijuana Law, Policy & Reform

It has been almost two months since I have done a round-up of posts of note from all the blogging I now do over at  Marijuana Law, Policy & Reform.  Here are just some (of many) legal and policy highlights from just the last few weeks at MLP&R that sentencing fans might find worth checking out:

December 17, 2017 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0)

Saturday, December 16, 2017

"Why hiring people with criminal records benefits all of us"

The title of this post is the headline of this recent FoxNews commentary authored by Mike Jandernoa.  Here are excerpts:

In the past, many employers would often not consider hiring people who had even minor criminal records.  But as the former CEO of a 10,000-employee organization, I have one message for America: we can no longer exclude this vital component of our workforce.

An estimated one in three American adults has a criminal record of some kind.  And about 600,000 people leave our nation’s prisons every year, looking to rejoin the workforce. While individuals in this group of workers won’t be right for every job, the right job is out there for everyone.

The benefits of boosting employment for those with criminal records are significant.  First, opening up opportunities to this population will make our country safer. Right now, almost 60 percent of individuals remain unemployed a year after being released from incarceration.  It’s in our collective self-interest for them to get jobs, because steady employment is one of the best ways to ensure that individuals lead productive, crime-free lives.  In one study of 6,000 returning citizens, employment cut the rate of those who committed a new crime in half.

Second, employers all across the country are suffering from a dearth of skilled labor.  Every year, one major national bank surveys small businesses across this country.  This year the survey found incredible optimism: 80 percent of employers said their business is stronger than ever; 40 percent said they plan to make a capital expenditure to grow their companies; and a quarter of those surveyed said they plan to hire more workers.  In West Michigan, most of the business leaders I know plan to expand their workforces. The downside?  The businesses can’t find enough workers....

Our region is almost at full employment, so we must look for alternatives. We have a very strong manufacturing base, and these businesses are looking for people who will show up on time and test negative for drugs — that’s it.  This opens the door for people who were formerly incarcerated and who are serious about turning their lives around.  It is not unheard of for employers to send vans to pick up workers who are in residential community corrections programs because the employers are so desperate for workers.

Some of our country’s largest employers are making second-chance hiring their official policy.  Target and Home Depot have “banned the box” in their employment practices.  “Ban the box” delays inquiry into an applicant’s criminal history until late in the hiring process, ensuring that those with criminal records aren’t tossed aside before having an opportunity to detail their skills, training and qualifications. This policy also allows these individuals to explain the circumstances of their offense, and show potential employers how they have turned their lives around....

Reforms to seal or erase records of criminal convictions are also a priority for job creators.  These policies seal minor criminal records after a certain crime-free period. Research shows that low-level offenders who have remained crime-free for three to five years are no more likely to commit a crime than anyone else.  And in many states, when minor criminal records are sealed, law enforcement and judicial officers still have access to these records, ensuring that public safety continues to be a priority.

Almost all states have some mechanism through which certain criminal records can be erased or sealed, but erasing records at the federal level is virtually impossible. Fortunately, the issue is gaining traction in Congress. Sen. Rand Paul, R-Ky., is spearheading the REDEEM Act, with bipartisan support.  And Rep. Hakeem Jeffries, D-N.Y., introduced the Renew Act with Rep. Trey Gowdy, R-S.C.

Occupational licensing reform is another issue important to the business community. Today one in four occupations requires a government license — but a criminal history often bars an individual from the licensing process.  Ironically, such restrictions make us less safe.  One study showed that states with more burdensome licensing laws saw an average 9 percent increase in recidivism, while those with the lowest burdens had a recidivism reduction of 2.5 percent.

States as diverse as Illinois, Arizona, and Louisiana have already begun peeling back the layers of government-issued permission slips to work.  At the federal level, the New HOPE Act, introduced by Rep. Tim Walberg, R-Mich., and similar legislation sponsored by Sen. John Cornyn, R-Texas, would allow states to use federal funding to identify and reduce unnecessary licensing barriers within their regulations and statutes.

Elected officials should look to job creators for sound public policy.  I urge my fellow employers to beat the drum even louder and make their voices heard at the local, state and federal level. We can improve public safety, strengthen the economy and broaden our pool of skilled labor through commonsense criminal justice reforms and offering second chances for those who have earned them.  I don’t know a good businessperson who would turn down that deal.

December 16, 2017 in Collateral consequences, Offender Characteristics, Who Sentences? | Permalink | Comments (4)

Friday, December 15, 2017

Remarkable story of jury sentencing, jury actions and a victim's response from Virginia

A helpful reader made sure I did not miss this remarkable story from Virginia as reported in the Washington Post under the headline "First the jury convicted this 19-year-old maid for stealing. Then they took up a collection to pay her fine." Here are highlights:

After she was arrested, Mendez Ortega spent eight days in jail until she was released on $1,000 bond . The jury was not told that.  The jury also was not told that Mendez Ortega apparently is not in the country legally, as Copeland said she was told by prosecutors, because it was not relevant to whether she stole the rings.  “I think it’s relevant to the case,” Copeland said.  She said the penalties of a felony conviction, such as not being able to vote or buy a gun, would not be actions available to an immigrant in the country illegally anyway....

The trial seemed utterly ordinary.  A 19-year-old maid swiped a woman’s three rings worth at least $5,000 from a house she was cleaning in Fairfax City, Va., but later returned them after the police questioned her.  She was charged with felony grand larceny.

What the jury did was extraordinary.  They felt bad for the young woman, pregnant with her second child, and agreed that she had made a dumb, youthful mistake. Reluctantly, they convicted her of the felony.  But the fine they imposed was her daily pay as a maid, $60. And then they took up a collection and gave her the money to pay the fine.

“The general sentiment was she was a victim, too,” said the jury foreman, Jeffery Memmott. “Two of the women [jurors] were crying because of how bad they felt.  One lady pulled out a $20 bill, and just about everybody chipped in.”  Memmott then contacted the public defender in the case, and went to the home of Sandra Mendez Ortega. He gave her the jury’s collection, which totaled $80....

The two-day trial was held in July, but the sentencing was last Friday before Fairfax County Circuit Court Judge Robert J. Smith.  Mendez Ortega’s lawyer, assistant public defender Michael C. Cash, asked the judge to defer the case and not enter a conviction or sentence in light of the defendant’s actions and the jury’s response.  Smith declined, entered the conviction and imposed the $60 fine.  Numerous veteran criminal lawyers, on both the prosecution and defense sides, said they had never heard of a case where a jury paid a defendant’s fine.

A happy holiday story, right?  Well what if you’re the woman whose rings were stolen?  Although she was not pleased when the jury returned from their deliberations with only a $60 fine for the felony conviction, crime victim Lisa Copeland was appalled when she learned that the jury had also paid the fine.  “I just pray that they’re never in my shoes,” Copeland said. She said Mendez Ortega never accepted responsibility for the theft.  “If she had accepted accountability, I would be okay with all of this.  The fact that she won’t accept accountability makes it wrong.”

Copeland said Mendez Ortega told a series of lies from the start, and then unfurled a tragic life story that convinced the jury to impose a punishment of a $60 fine.  “I was outraged,” Copeland said.  “I was just flabbergasted. I didn’t think $60 equated to the crime at all.” She did not know the jury had taken up a collection for Mendez Ortega until she was contacted by a reporter.

The case began with Copeland’s discovery in September 2016 that her engagement and wedding rings were missing from the container where they were usually kept.  The engagement ring had been her grandmother’s, made in 1943, and the two rings were appraised at $5,000 in 1996, Copeland said.  Copeland didn’t realize a third, inexpensive ring had been taken until it was turned in.... 

At trial, the facts were not really in dispute. The jury did not hear from Mendez Ortega during the case in chief, but they were already sympathetic to her. “We didn’t feel she should have been tried and convicted,” said Memmott, the foreman. “We tried every way we could to find some way of not convicting her.  But the legal standard was very clear.”  Two other jurors agreed that the felony conviction was appropriate, given the facts and the law.  Lisa Copeland was amazed. “The fact that she confessed,” she said, “and they didn’t want to convict her?  I don’t get this. That’s basically saying it’s okay to steal.”

Then during the sentencing phase, Mendez Ortega took the stand.  She faced a possible sentence of up to 20 years in prison and a fine of up to $2,500.  She told the jury she had dropped out of school after sixth grade, that she first became pregnant at 15, that she was pregnant again at 19 and had no job, according to court records. “The whole time she was telling the sob story,” Lisa Copeland said, I looked at my husband and said, ‘I’ve heard enough of this.'”  She noted that after Mendez Ortega took the rings, “she lied to the cops, she lied to her employers.  She didn’t turn in the rings, she made somebody else do it.  She confessed, but claimed that the rings were in the bathroom.  And then she tried to blame her boss.”

When the jury went back to deliberate on a sentence, the jurors said they quickly agreed that no jail time was appropriate, and that only a small fine should be imposed. “We all came to the conclusion,” Memmott said, “we should fine her the amount she made for a day’s work.”...  “The degree of empathy that was shown by these citizens,” said a third juror who asked to remain nameless, “and the serious way everybody took their responsibility, was really remarkable.”

Remarkable is the word I would attach to every part of this story, while also noting that this would only be possible in a jurisdiction like Virginia that includes a system of jury sentencing. Interestingly, this story does not speak to whether or how the victim here spoke during the trial/sentencing proceedings.  I am pretty sure victims in Virginia have a right to speak at sentencing, and I wonder if this now-aggrieved victim is upset in part because she did not exercise that right.

December 15, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9)

Call for Papers associated with the Innocence Network Conference

I am always happy to use this forum to relay calls for papers and/or conferences announcements, and here is a two-fer that I received this afternoon:

The Innocence Scholarship Committee of the Innocence Network is seeking high quality social science and legal scholarship for presentation at the 2018 Innocence Network Conference in Memphis, Tennessee on March 23-24.

Areas of research are open but should touch upon the multifaceted causes, implications, and/or remedies of wrongful conviction.  International papers are welcome but must be submitted in English.  Please submit a title and paper proposal to the Innocence Scholarship Committee at this Gmail account: innocencescholarship @ gmail.com by January 16, 2018. Paper proposals must be no more than 600 words.  Completed drafts must be submitted to the Committee by March 17, 2018.

The Innocence Scholarship Committee is arranging for publication for those papers accepted for Conference presentations in a symposium edition of the Northeastern Law Review.

The Innocence Scholarship Committee is composed of the following Members: Professor Valena Beety, West Virginia Innocence Project, West Virginia College of Law; Professor Keith Findley, Wisconsin Innocence Project, University of Wisconsin Law School; Professor Stephanie Roberts Hartung, New England Innocence Project, Northeastern Law School; Associate Clinical Professor Paige Kaneb, Northern California Innocence Project at Santa Clara Law; Dr. Glinda Cooper, Innocence Project; and Ms. Vanessa Meterko, Innocence Project.

December 15, 2017 in Offense Characteristics, Recommended reading | Permalink | Comments (1)

Looking at the changing demographics of modern mass incarceration

The Marshall Project has this notable new piece headlined "A Mass Incarceration Mystery: Why are black imprisonment rates going down? Four theories." Here is the start of the extended analysis along with the basics of the propounded "four theories":

One of the most damning features of the U.S. criminal justice system is its vast racial inequity. Black people in this country are imprisoned at more than 5 times the rate of whites; one in 10 black children has a parent behind bars, compared with about one in 60 white kids, according to the Stanford Center on Poverty & Inequality.  The crisis has persisted for so long that it has nearly become an accepted norm.

So it may come as a surprise to learn that for the last 15 years, racial disparities in the American prison system have actually been on the decline, according to a Marshall Project analysis of yearly reports by the federal Bureau of Justice Statistics and the FBI’s Uniform Crime Reporting system.  Between 2000 and 2015, the imprisonment rate of black men dropped by more than 24 percent. At the same time, the white male rate increased slightly, the BJS numbers indicate.

Among women, the trend is even more dramatic. From 2000 to 2015, the black female imprisonment rate dropped by nearly 50 percent; during the same period, the white female rate shot upward by 53 percent. As the nonprofit Sentencing Project has pointed out, the racial disparity between black and white women’s incarceration was once 6 to 1. Now it’s 2 to 1.

Similar patterns appear to hold for local jails, although the data are less reliable given the “churn” of inmates into and out of those facilities. Since 2000, the total number of black people in local detention has decreased from 256,300 to 243,400, according to BJS; meanwhile, the number of whites rose from 260,500 to 335,100. The charts below from the Vera Institute of Justicealso reveal significant drops in the jailing of blacks from New York to Los Angeles, coinciding with little change for whites.  (In both the prison and jail data, the total number of incarcerated Latinos has increased, but their actual incarceration rate has remained steady or also fallen, attributable to their increasing numbers in the U.S. population generally.)

Taken together, these statistics change the narrative of mass incarceration, and that may be one reason why the data has been widely overlooked in policy debates. The narrowing of the gap between white and black incarceration rates is “definitely optimistic news," said John Pfaff, a law professor at Fordham University and an expert on trends in prison statistics. "But the racial disparity remains so vast that it’s pretty hard to celebrate.  How exactly do you talk about ‘less horrific?'”

According to Pfaff, “Our inability to explain it suggests how poorly we understand the mechanics behind incarceration in general.”  In other words, how much of any shift in the imprisonment rate can be attributed to changes in demographics, crime rates, policing, prosecutors, sentencing laws and jail admissions versus lengths of stay? And is it even possible to know, empirically, whether specific reforms, such as implicit bias training, are having an effect on the trend line?....

[H]ere are four (not mutually exclusive or exhaustive) theories, compiled from our research and interviews with prison system experts, to explain the nearly two-decades-long narrowing of the racial gap in incarceration.

1) Crime, arrests and incarceration are declining overall....

2) The war on drugs has shifted its focus from crack and marijuana to meth and opioids....

3) White people have also faced declining socioeconomic prospects, leading to more criminal justice involvement....

4) Criminal justice reform has been happening in cities, where more black people live, but not in rural areas....

Even with all of these factors at work, the racial inequity of the American prison system remains vast and continues to wreak devastation on black and Latino communities nationwide. At the current rate, the disparities would not fully disappear for many decades.

I think a lot of other possible factors may be at least marginally contributing to the changing demographics of prison populations between 2000 and 2015, factors ranging from more diversity in the ranks of police, prosecutors and the judiciary to greater concerns with sentencing decision-making (and advocacy) by courts (and lawyers).  And perhaps readers have some additional (sensible?) theories on this front that could be shared in the comments.

December 15, 2017 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (5)

Thursday, December 14, 2017

Does the election of Doug Jones in Alabama increase the prospects of federal statutory sentencing reform?

The question in the title of this post is prompted by this Marshall Project piece headlined "What the Doug Jones Election Means for Criminal Justice Reform." The subheadline of the piece, "The Alabama Democrat represents the flip-side of his predecessor," perhaps best frames the article that follows, and here are excerpts:

Last year, prospects were looking good for a bipartisan effort in Congress to overhaul federal sentencing. But after long and careful negotiations, one senator almost single-handedly torpedoed the measure: the junior Republican from Alabama, Jeff Sessions.

Sessions, of course, went on to become Attorney General, dimming hopes even further.  But Tuesday’s election of his unlikely replacement, Democrat Doug Jones, hands the seat to a former federal prosecutor who has advocated for less harsh sentencing and more alternatives to prison.  “Doug Jones was a groundbreaking voice for prosecutorial reform to end mass incarceration,” said Lauren-Brooke Eisen, senior counsel in the Brennan Center’s Justice Program.  “He was one of the first prosecutors to speak out about how prosecutors can and should help reduce unnecessary incarceration.”

Jones, the former U.S. Attorney for the Northern District of Alabama, was best known as a prosecutor for securing the convictions of two former Ku Klux Klan members in the infamous 1963 bombing of the 16th Street Baptist Church in Birmingham, which killed four young black girls.  The men were convicted in 2001 and 2002.

Over the last few years, Jones, who could not be reached for comment Wednesday after his victory, has begun to openly push for changes that would give prosecutors more leeway.  He included criminal justice among his top campaign priorities, taking aim at mandatory minimum sentencing, disparities that send a disproportionate number of blacks and Latinos to prison, and “three strikes” laws.  “These are bipartisan issues Democrats and Republicans agree on,” Jones told a group of Alabama State University students last month. “Try to reduce the crime, keep our communities safer and at the same time cut down the costs of the criminal justice system.”...

It’s too soon to tell what Jones’ election means for federal sentencing reform. Progress stalled under President Donald Trump, and Sessions has stayed true to his law-and-order roots, calling on U.S. Attorneys to seek the highest possible charges and rolling back a guideline that had allowed prosecutors to ignore some drug charges.  Legislators and advocates instead have focused on trying to create more re-entry programs, prison educational opportunities and job skills training.

But Jones’ election elevates one of the effort’s most vocal supporters.  Two years ago, Jones and another former federal prosecutor, James E. Johnson, and other law enforcement officials formed Law Enforcement Leaders To Reduce Crime & Incarceration, a bipartisan, reform-minded advocacy group.  Jones was among members who signed a letter supporting the effort that ultimately died in Congress....  “While I sought harsh punishments for violent offenders as U.S. attorney, not all cases require severe sentences,” Jones wrote on his website. “Judges and prosecutors should be given flexibility and be empowered to decide the fate of those before them in the justice system.”

For the time being, the prospects of any congressional federal sentencing reform rests primarily in the hands of Senate Leader Mitch McConnell and Prez Donald Trump.  Senator McConnell can refuse (and so far has refused) to bring the Sentencing Reform and Corrections Act up for a floor vote even though some GOP Senators have said, as noted here, the SCRA could get 70 votes in the Senate right now.   But the SCRA surely would not get 70 votes in Prez Trump were to come out vocally against it, and Senator McConnell surely will not bring it up for a floor vote if he knows doing so would be against the wishes of Prez Trump.  Those realities likely mean that the new Senate 51-49 math and the new voice of Senator-elect Jones will not in any major way directly impact the prospects for congressional federal sentencing reforms in the months ahead.

That all said, I do think the Jones victory in Alabama still has some political ripples in the arena of crime and punishment.  As he did in the gubernatorial race in Virginia, Prez Trump used his Twitter thumbs to make a "weak on crime" attack on the Democratic candidate in Alabama.  That candidate still prevailed, and did particularly well in the suburbs where it is often thought the "soft on crime" epithet is most effective (although surely other factors mattered to suburban Alabama voters earlier this week).   Including the New Jersey race for governor also decided last month, we can and should now say that in the last three significant state-wide elections, the candidate obviously more supportive of criminal justice reform prevailed.

I make these points not to assert that many political candidates are going to now view criminal justice reform advocacy as a winning political strategy, although I expect (and hope) some will.  Rather, I am making the more subtle (but important) point that no current politician or would-be candidate should any more be unduly afraid that supporting criminal justice reform could doom them in the next political cycle.  For much of the last half-century, the conventional wisdom was that any politician who could be effectively painted as soft on crime was sure to lose in the next election  (and I suspect this conventional wisdom in part accounts for why so little significant criminal justice reform was actually achieved during the Obama era).  With every significant victory by any person who calls for criminal justice reform on the campaign trail, that old conventional wisdom becomes much less conventional and much less wise.

December 14, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2)

"Second Chance Reforms in 2017: Roundup of new expungement and restoration laws"

2017-Report-Cover-Image-791x1024The title of this post is the title of this notable new publication from the Collateral Consequences Resource Center documenting how states are, in various ways, expanding opportunities to avoid or mitigate the adverse effects of a criminal record. Here is the report's executive summary following the start of its "overview" section:

The national trend toward expanding opportunities for restoration of rights and status after conviction, first documented in Four Years of Second Chance Reforms, 2013 – 2016, has accelerated in 2017. In the past year, 23 states broadened existing second chance laws or enacted entirely new ones, enhancing the prospects for successful reentry and reintegration for many thousands of Americans.  Some of these laws significantly expanded the availability of relief, while others involved relatively minor changes to existing law.

The most frequent type of reform involved limiting public access to criminal records: new sealing or expungement laws were enacted in several states that previously had none, eligibility requirements were relaxed for many existing record-sealing authorities, and new limits were imposed on access to non-conviction and juvenile records -- all making it easier for more individuals to get relief at an earlier date.  However, there is remarkably little consistency among state record-closing schemes, and most states extend relief only to less serious offenses after lengthy eligibility waiting periods.  Moreover, eligibility criteria are frequently so complex as to defeat the sharpest legal minds. Other recurring reforms limit employer inquiries into criminal history at the application stage.  A few states enacted administratively enforceable standards for consideration of criminal history in employment and licensing. To date there has been very little empirical research into the relative effectiveness of different forms of relief, so it is perhaps not surprising that experimentation seems to be the order of the day.

This report documents changes in state restoration laws in 2017, many of which are quite significant.  It is based on research from the Restoration of Rights Project (RRP), an online resource maintained by the CCRC that catalogs and analyzes the restoration laws of all fifty states, the District of Columbia, and the federal system.  Following an overview of 2017 reforms, specific changes to the law in each state are briefly described along with relevant citations. More detailed information about each state’s laws is available in the RRP state profiles.

• In 2017, 23 states enacted laws aimed at reducing barriers faced by people with criminal records in the workplace and elsewhere.  Some of these laws significantly expanded the availability of relief, while others involved relatively minor changes to existing laws.

• Most of the new laws involved either restrictions on public access to records or limits on employer inquiries into criminal history.  A few states enacted administratively enforceable standards for consideration of criminal history in employment and licensing.

• Important new record-sealing schemes were enacted in Illinois, Montana and New York, and nine other states either relaxed eligibility requirements or otherwise supplemented their existing sealing or expungement authorities to make relief more broadly available at an earlier date.  Of these nine, the most ambitious reforms were enacted by Nevada, which was one of several states that created a presumption in favor of relief for eligible persons.

• Seven states enacted substantial revisions to their juvenile expungement and sealing laws in 2017, some of which require courts to order relief automatically after a brief waiting period.

• Ten states enacted state-wide “ban-the-box” laws limiting inquiries into criminal record by public employers at preliminary stages of the hiring process.  California, Connecticut and Vermont extended these limits to private employers as well.

• In California and Nevada, restrictions on application-stage inquiries are part of a broader nondiscrimination scheme that prohibits consideration of certain kinds of criminal records, and establishes standards for individualized determinations in all other cases.  Both states provide additional procedural protections.

• While reforms are moving at a fast pace, there is no consensus about the most effective way to avoid or mitigate the adverse effects of a criminal record, and very little relevant empirical research.

December 14, 2017 in Collateral consequences, Data on sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (2)

DPIC releases 2017 year-end report noting "second lowest" executions and death sentences in a quarter century

SentencingTrendsThis press release from the Death Penalty Information Center, titled "U.S. Sees Second Fewest Death Sentences and Executions in 25 Years," provides a summary of the DPIC's 2017 year-end report on the administration of the death penalty in the United States. Here are excerpts from the press report:

Executions and death sentences remained near historically low levels in 2017, as public support for the death penalty fell to its lowest level in 45 years, according to a report released today by the Death Penalty Information Center (DPIC).  Eight states carried out 23 executions, half the number of seven years ago, and the second lowest total since 1991.  Only the 20 executions in 2016 were lower.  Fourteen states and the federal government are projected to impose 39 new death sentences in 2017, the second lowest annual total since the U.S. Supreme Court declared the death penalty unconstitutional in 1972.  It was the seventh year in a row that fewer than 100 death sentences were imposed nationwide.

“Perhaps more than any place else, the changes in Harris County, Texas are symbolic of the long-term change in capital punishment in the United States.  For the first time since 1974, the county that has carried out more executions than any other did not execute any prisoner or sentence any defendant to death,” said Robert Dunham, DPIC’s Executive Director.

“Across the political spectrum, more people are coming to the view that there are better ways to keep us safe than executing a handful of offenders selected from a random death-penalty lottery.  There will be times when numbers fluctuate — particularly following historic highs or lows – but the steady long-term decline in the death penalty since the 1990s suggests that in most of the country, the death penalty is becoming obsolete,” Dunham said.  DPIC provides information and analysis and tracks data on the death penalty, but does not take a position for or against capital punishment.

The new death sentences imposed in 2017 highlight the increasing geographic isolation and arbitrary nature of the death penalty, Dunham said.  “By themselves, three outlier counties  — Riverside, CA; Clark, NV; and Maricopa, AZ —  were responsible for more than 30% of all the death sentences imposed nationwide. The other 3,140 counties and parishes imposed fewer new death sentences than even last year’s record low.”  Riverside imposed five death sentences in 2017, Clark four, and Maricopa three, and no other county imposed as many as two.  It was the second time in three years that Riverside sentenced more people to death than any other county.

States scheduled 81 executions in 2017, but 58 of them — more than 70 percent — were never carried out.  Nearly 75 percent of executions took place in four states: Texas (7); Arkansas (4); Florida (3); and Alabama (3).  But Texas’s state courts stayed seven other executions using new laws to permit those prisoners to obtain judicial review of false or misleading evidence, and its execution total tied 2016 for the fewest conducted by the state since 1996.

December 14, 2017 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data | Permalink | Comments (2)

Wednesday, December 13, 2017

"Rethinking the Boundaries of 'Criminal Justice'"

The title of this post is the title of this new essay/book review authored by Benjamin Levin and now available via SSRN. Here is the abstract:

This review of The New Criminal Justice Thinking (Sharon Dolovich & Alexandra Natapoff, eds.) tracks the shifting and uncertain contours of “criminal justice” as an object of study and critique. Specifically, I trace two themes in the book: (1) the uncertain boundaries of the “criminal justice system” as a web of laws, actors, and institutions; and (2) the uncertain boundaries of “criminal justice thinking” as a universe of interdisciplinary scholarship, policy discourse, and public engagement.

I argue that these two themes speak to critically important questions about the nature of criminal justice scholarship and reform efforts. Without a firm understanding of what constitutes the “criminal justice system,” it is difficult to agree on the proper targets of critique or to determine what legal, social, and political problems are properly the province of “criminal justice thinking.” And, deciding which voices to accept and privilege in these discussions in turn shapes the face of the reform movement and the types of proposals and critiques that are treated as legitimate.

December 13, 2017 in Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (1)

"Opioids: Treating an Illness, Ending a War"

The title of this post is the title of this new report from The Sentencing Project. Here is how the report's executive summary gets started:

More people died from opioid-related deaths in 2015 than in any previous year.  This record number quadrupled the level of such deaths in 1999. Unlike the heroin and crack crises of the past, the current opioid emergency has disproportionately affected white Americans — poor and rural, but also middle class or affluent and suburban.  This association has boosted support for preventative and treatment-based policy solutions. But the pace of the response has been slow, critical components of the solution — such as health insurance coverage expansion and improved access to medication-assisted treatment— face resistance, and there are growing efforts to revamp the failed and costly War on Drugs.

This report examines the sources of the opioid crisis, surveys health and justice policy responses at the federal and state levels, and draws on lessons from past drug crises to provide guidance on how to proceed. The War on Drugs did not play a major role in ebbing past cycles of drug use, as revealed by extensive research and the reflections of police chiefs. In 2014, the National Research Council concluded: "The best empirical evidence suggests that the successive iterations of the war on drugs — through a substantial public policy effort—are unlikely to have markedly or clearly reduced drug crime over the past three decades."

Growing public awareness of the limited impact and devastating toll of the War on Drugs has encouraged many policymakers and criminal justice practitioners to begin its winding down.  The number of people imprisoned nationwide for a drug offense skyrocketed from 24,000 in 1980 to a peak of 369,000 in 2007.

It has since declined by nearly one-quarter, reaching approximately 287,000 people in the most recent count.  The lessons from past drug crises and the evidence base supporting a public health approach can guide policymakers as they seek an end to the current opioid crisis.

December 13, 2017 in Criminal Sentences Alternatives, Drug Offense Sentencing, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Tuesday, December 12, 2017

Second Circuit panel reverses as unreasonable way-above-guideline sentence for immigration offense

A helpful reader made sure I did not miss a fascinating Second Circuit panel decision today reversing an above-guideline sentence as unreasonable in United States v. Singh, No. 16‐1111 (2d Cir. Dec. 12, 2017) (available here). Here is how the opinion gets started:

In this case, defendant‐appellant Latchman Singh pleaded guilty to one count of illegally reentering the United States after having been removed following a conviction for an aggravated felony.  His Guidelines range was 15 to 21 monthsʹ imprisonment, and both the government and the Probation Office recommended a within‐Guidelines sentence.  The district court, however, sentenced Singh to a term of imprisonment of 60 months ‐‐ nearly three times the top of the Guidelines range.   

Singh appeals, contending that the sentence was both procedurally and substantively unreasonable.  For the reasons set forth below, we vacate the sentence and remand for further proceedings.  Singhʹs request that we order reassignment of the case to a different judge is denied. 

The opinion goes on to thoughtfully explain its substantive and procedural concerns with the sentence imposed; the discussion defies easy summary and lots of passages could merit highlighting. Here is one from the end of the opinion that seemed especially notable:

ʺSentencing, that is to say punishment, is perhaps the most difficult task of a trial court judge.ʺ  Jack B. Weinstein, Does Religion Have a Role in Criminal Sentencing?, 23 Touro L. Rev. 539, 539 (2007).  While there are many competing considerations in every sentencing decision, a sentencing judge must have some understanding of ʺthe diverse frailties of humankind.ʺ  See Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (plurality opinion).  In deciding what sentence will be ʺsufficient, but not greater than necessaryʺ to further the goals of punishment, 18 U.S.C. § 3553(a), a sentencing judge must have a ʺgenerosity of spirit, that compassion which causes one to know what it is like to be in trouble and in pain.ʺ  Guido Calabresi, What Makes a Judge Great: To A. Leon Higginbotham, Jr., 142 U. Pa. L. Rev. 513, 513 (1993); see also Edward J. Devitt, Ten Commandments for the New Judge, 65 A.B.A. J. 574 (1979), reprinted in 82 F.R.D. 209, 209 (1979) (ʺBe kind.  If we judges could possess but one attribute, it should be a kind and understanding heart.  The bench is no place for cruel or callous people regardless of their other qualities and abilities.  There is no burden more onerous than imposing sentence in criminal cases.ʺ).

To the extent the district court increased Singhʹs punishment because of a perception that in attempting to explain his actions and plead for mercy he did not fully accept responsibility, it committed procedural error.

December 12, 2017 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (7)

"Sex Registries as Modern-Day Witch Pyres: Why Criminal Justice Reform Advocates Need to Address the Treatment of People on the Sex Offender Registry"

The title of this post is the title of this notable new In Justice commentary authored by Guy Hamilton-Smith. I quoted the title in full because it is all worthy of reflection, as is the entire commentary that follows. Here is an excerpt:

The sex offender is the modern-day witch: the registry, the contemporary pyre. A scarlet letter for our technocratic era, forcing people to register as sex offenders “is what puritan judges would’ve done to Hester Prynne had laptops been available.” While undoubtedly there are those on the registry who have been convicted of blood curdling crimes, the designation is also extended to those who have been convicted of far more banal ones.

Reformers urgently need to draw public attention to the cruel and unnecessarily harsh treatment afforded to sex offenders within the justice system. Sex offender registries are rapidly proliferating and becoming an increasingly popular back-end tool for feeding people into the carceral state.

In understanding the reasons why sex offenders ought to be a higher priority for mainstream justice reform advocates, a grasp of the evolution and operation of the sex offender registry is critical....

The number of people listed on a sex offender registry in the United States has grown from slightly more than 500,000 in 2005 to 874,725 today. Research has found that sex offender registries have a disproportionate impact on minorities.

While registries and their attendant requirements are sold as enhancing public safety, research consistently indicates that they are exceedingly bad at this goal. One explanation is because, contrary to Smith’s baseless assertion and what most believe, people on the registry have one of the lowest rates of re-offending out of any class of criminal....

As a piece of criminal justice machinery brought to bear on people, the registry can best be thought of as a two-headed beast: a 1–2 punch of distinct effects.

The first head is the direct impact on the lives of those on the registry itself. With no Due Process or Ex Post Facto brakes to slow down the juggernaut, it has become weaponized.  A far cry from its origins as a simple list of purported perverts, it has morphed into a web of prison-without-bars that would make Franz Kafka blush. The oppressiveness, breadth, and lack of due process inherent in these modern day sex offender registries led a federal court in Colorado to label it a cruel and unusual punishment; a legal conclusion virtually unheard of outside of the cloistered world of death penalty litigation.

The second head is the tangle of legal requirements for those on the list: a knot of vague, illogical, ever-expanding, and sometimes contradictory laws that even lawyers, judges, and law enforcement have difficulty interpreting.  Examples can include strict time limits on reporting even minor changes in information (such as online accounts) or residence, residency restrictions, or even the clothing one wears. States promise swift felony prosecutions if individuals do not observe hyper-technical compliance with these requirements.

Unsurprisingly, it is exceedingly easy to run afoul of the requirements, keeping those that do trapped in a cycle of legislatively-crafted “crime” that can be tantamount to a de facto life sentence. “Failure to register” is fast becoming the crime of choice for returning those on the registry to prison.  In 2008 in Minnesota, failure to register charges became the most common reason sex offenders were returned to prison.  Between 2000 to 2016, Texas saw a more than 700% increase in FTR arrests, from 252 in 2005 to 1,497 in 2017. To borrow a phrase from computer programming, this is not some kind of criminal justice bug. It is a feature.

December 12, 2017 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9)

Curious reminder of limits of empirical evidence showing federal sentencing disparity before modern guideline reforms

ProPublica has this lengthy new article that seems way too eager to suggest that some empirical shenanigans fester below the Supreme Court's 1989 Mistretta opinion upholding the structure of the Sentencing Reform Act of 1984. The full headline and subheadline showcases the ominous theme of this reporting, "Suspect Evidence Informed a Momentous Supreme Court Decision on Criminal Sentencing: The U.S. Sentencing Commission helped send more people to prison for longer terms. It’s a shame it was created to address a nonexistent crisis. Here’s how the Supreme Court got misled."  I fear that ProPublica's valuable push to fact-check SCOTUS opinions has, in this case, led to some problematic assertions about the history of sentencing reform and Mistretta.  Though this blog space is not an ideal setting for nitpicking this long ProPublica piece, the article's start (with one sentence emphasized) provides a flavor for its points and problems:

More than 30 years ago, Congress identified what it said was a grave threat to the American promise of equal justice for all: Federal judges were giving wildly different punishments to defendants who had committed the same crimes.  The worries were many.  Some lawmakers feared lenient judges were giving criminals too little time in prison. Others suspected African-American defendants were being unfairly sentenced to steeper prison terms than white defendants.

In 1984, Congress created the U.S. Sentencing Commission with remarkable bipartisan support.  The commission would set firm punishment rules, called “guidelines,” for every offense.  The measure, signed by President Ronald Reagan, largely stripped federal judges of their sentencing powers; they were now to use a chart to decide penalties for each conviction, with few exceptions.

Five years later, a legal challenge to the sentencing commission wound up before the U.S. Supreme Court.  In a case titled Mistretta v. U.S., the court was asked to consider whether Congress had overreached by taking on what seemed to be a role for the judiciary.  In an 8-1 decision, the justices determined that the sentencing commission was constitutional.  And they took care to say that the commission was also needed — to end the widespread and “shameful” sentencing disparities produced by the biases of individual judges.

Mistretta was a momentous decision, but it’s now clear the high court relied on evidence that was flimsy and even flat-out wrong.  The justices, in issuing the 1989 decision, had cited a single congressional report in concluding that there were disturbing and unacceptable sentencing disparities that needed to be addressed.  That single report, in turn, was based primarily on two studies conducted in the early 1970s, both deeply flawed.

Critically, the Mistretta case legally and practically did not turn at all on whether researchers had adequately proven pre-guideline sentencing disparity or whether Congress relied on "flimsy" evidence when enacting the Sentencing Reform Act.  Constitutional issues, not empirical ones, were the focal point of Mistretta.

To its credit, this ProPublica article does a nice job spotlighting problems with the disparity evidence cited by Congress in the legislative history of the Sentencing Reform Act.  But Kate Stith and Jose Cabranes made this point effectively two decades ago in Fear of Judging, and sentencing reforms in the 1970s and 1980s, at both the federal and state level, were driven by (and could be justified by) a lot more than just concerns about sentencing disparities.  Moreover, and perhaps most important, the few cites by Congress to studies about sentencing disparities were really only the tip of the evidentiary iceberg: as Norval Morris stressed in this great 1977 piece, he started effectively documenting "gross and unjust variations in sentences imposed on convicted criminals" in the 1950s.  As he put it, by the mid 1970s, the decade before Congress enacted the Sentencing Reform Act, "the data on unjust sentencing disparity [had] indeed become quite overwhelming and will ... convince anyone who will take the time to study them."   

In short, I think it deeply misguided to label the concerns about sentencing disparities before modern reforms a "nonexistent crisis," and it is even more problematic to suggest that these concerns were the only reason Congress passed the SRA or the only reason Mistretta came out as it did.  I am always grateful for journalism seeking to thoughtfully unpack federal sentencing reforms and Supreme Court sentencing rulings, and there can and should be continued debate about whether and how modern sentencing reforms may have increased rather than reduced certain types of sentencing disparities.  But the notion that there were not any truly justified concerns about sentencing disparity before modern reforms cannot withstand serious scrutiny, nor can the suggestion that SCOTUS was "misled" by bad data in its Mistretta ruling.

December 12, 2017 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Monday, December 11, 2017

"Assessing Risk Assessment in Action"

The title of this post is the title of this interesting new paper available via SSRN authored by Megan Stevenson.  Though the paper addresses pretrial risk-assessment, I think folks interested in risk-assessment tools at sentencing should be interested in the findings.  Here is the abstract:

Recent years have seen a rush towards evidence-based tools in criminal justice.  As part of this movement, many jurisdictions have adopted actuarial risk assessment to supplement or replace the ad-hoc decisions of judges.  Proponents of risk assessment tools claim that they can dramatically reduce incarceration without harming public safety. Critics claim that risk assessment will exacerbate racial disparities. Despite extensive and heated rhetoric, there is virtually no evidence on how use of this “evidence-based” tool affects key outcomes such as incarceration rates, crime, or racial disparities.  The research discussing what “should” happen as a result of risk assessment is hypothetical and largely ignores the complexities of implementation.

This Article is one of the first studies to document the impacts of risk assessment in practice.  It evaluates pretrial risk assessment in Kentucky, a state that was an early adopter of risk assessment and is often cited as an example of best-practices in the pretrial area.  Using rich data on more than one million criminal cases, the paper shows that a 2011 law making risk assessment a mandatory part of the bail decision led to a significant change in bail setting practice, but only a small increase in pretrial release. These changes eroded over time as judges returned to their previous habits.  Furthermore, the increase in releases was not cost-free: failures-to-appear and pretrial crime increased as well.  Risk assessment had no effect on racial disparities in pretrial detention once differing regional trends were accounted for.

Kentucky’s experience does not mean we should abandon risk assessment, but it should temper the hyperbolic hopes (and fears) about its effects.  Risk assessment in practice is different from risk assessment in the abstract, and its impacts depend on context and details of implementation.  If indeed risk assessment is capable of producing large benefits, it will take research and experimentation to learn how to achieve them.  Such a process would be evidence-based criminal justice at its best: not a flocking towards methods that bear the glossy veneer of science, but a careful and iterative evaluation of what works and what does not.

December 11, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (8)

Will any state really start conducting executions with opioids?

The question in the title of this post is prompted by this lengthy Washington Post article, headlined "States to try new ways of executing prisoners. Their latest idea? Opioids." Here is how it gets started:

The synthetic painkiller fentanyl has been the driving force behind the nation’s opioid epidemic, killing tens of thousands of Americans last year in overdoses. Now two states want to use the drug’s powerful properties for a new purpose: to execute prisoners on death row.

As Nevada and Nebraska push for the country’s first fentanyl-assisted executions, doctors and death penalty opponents are fighting those plans. They have warned that such an untested use of fentanyl could lead to painful, botched executions, comparing the use of it and other new drugs proposed for lethal injection to human experimentation.

States are increasingly pressed for ways to carry out the death penalty because of problems obtaining the drugs they long have used, primarily because pharmaceutical companies are refusing to supply their drugs for executions. The situation has led states such as Florida, Ohio and Oklahoma to turn to novel drug combinations for executions. Mississippi legalized nitrogen gas this spring as a backup method — something no state or country has tried. Officials have yet to say whether it would be delivered in a gas chamber or through a gas mask. Other states have passed laws authorizing a return to older methods, such as the firing squad and the electric chair.

“We’re in a new era,” said Deborah Denno, a law professor at Fordham University. “States have now gone through all the drugs closest to the original ones for lethal injection. And the more they experiment, the more they’re forced to use new drugs that we know less about in terms of how they might work in an execution.”

Supporters of capital punishment blame critics for the crisis, which comes amid a sharp decline in the number of executions and decreasing public support for the death penalty. States have put 23 inmates to death in 2017 — the second-fewest executions in more than a quarter-century. Nineteen states no longer have capital punishment, with a third of those banning it in the past decade.

“If death penalty opponents were really concerned about inmates’ pain, they would help reopen the supply,” said Kent Scheidegger of the Criminal Justice Legal Foundation, which advocates for the rights of crime victims. Opponents “caused the problem we’re in now by forcing pharmaceuticals to cut off the supply to these drugs. That’s why states are turning to less-than-optimal choices.”

Prison officials in Nevada and Nebraska have declined to answer questions about why they chose to use fentanyl in their next executions, which could take place in early 2018. Many states cloak their procedures in secrecy to try to minimize legal challenges. But fentanyl offers several advantages. The obvious one is potency. The synthetic drug is 50 times more powerful than heroin and up to 100 times more powerful than morphine.

“There’s cruel irony that at the same time these state governments are trying to figure out how to stop so many from dying from opioids, that they now want to turn and use them to deliberately kill someone,” said Austin Sarat, a law professor at Amherst College who has studied the death penalty for more than four decades.

Another plus with fentanyl: It is easy to obtain. Although the drug has rocketed into the news because of the opioid crisis, doctors frequently use it to anesthetize patients for major surgery or to treat severe pain in patients with advanced cancer. Nevada officials say they had no problem buying fentanyl. “We simply ordered it through our pharmaceutical distributor, just like every other medication we purchase, and it was delivered,” Brooke Keast, a spokeswoman for the Nevada Department of Corrections, said in an email. “Nothing out of the ordinary at all.”

Notably, Nevada has not had an execution since 2006 and Nebraska has not had an execution from 1997, and that reality leads me to question whether these states are likely to be conducting opioid-based executions anytime soon. But, as the Post article details, Nevada was fully geared up for a fentanyl-included execution last month before a court intervened, and they may have plans for another execution early in 2018.

December 11, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (7)

"Graduating Economic Sanctions According to Ability to Pay"

The title of this post is the the title of this new and timely article authored by Beth Colgan now available via SSRN. Here is the abstract:

There is growing recognition that economic sanctions — fines, surcharges, fees, and restitution — are routinely imposed at rates many people have no meaningful ability to pay, which can exacerbate financial instability and lead to the perception that economic sanctions are unfairly punitive to people of limited means.  Concerns triggered primarily by highly punitive tactics, including incarceration and long-term probation of low-income debtors for the failure to pay, have led to increasing calls for reform.  While much attention is now being paid to the back-end of the system, and particularly limitations on punitive responses for the failure to pay due to poverty, this Article considers the problem from the front-end.  In particular, this Article focuses on a potential reform with increasing bipartisan support: the graduation of economic sanctions according to a person’s financial circumstances.

To that end, this Article explores several key considerations essential to designing a system of graduation, relying heavily on a largely-forgotten experiment in seven geographically, demographically, and politically diverse jurisdictions in the United States with the “day-fine.”  A day-fine is calculated using a penalty unit assigned based on the seriousness of the offense of conviction.  The penalty unit is then multiplied by the defendant’s adjusted daily income to determine the day-fine amount.  The result is an economic sanction adjusted to offense seriousness and simultaneously graduated to the defendant’s financial condition.  This Article mines the historical record of the American day-fines experiments — complemented by recent interviews with people involved in the design and implementation of the projects and experiences with means-adjustment in the consumer bankruptcy, tax, and public benefits contexts — for lessons on the design of graduating economic sanctions.  What emerges from this review is promising evidence that a properly designed and implemented system for graduation is consistent with efficient court administration, revenue generation, and equality in sentencing. 

December 11, 2017 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

Sunday, December 10, 2017

Is due process satisfied by a "minimal indicia of reliability" standard for key sentencing evidence and determinations?

The question in the title of this post is prompted by an opinion issued earlier this year by the Supreme Court of Delaware in Smack v. Delaware, No. 601 (Del. Oct. 11, 2017) (available here). The first paragraph of the Smack opinion provides the basic facts and procedural issue:

Adrin Smack pleaded guilty to four counts of drug dealing, one count of possession of a firearm by a person prohibited, and one count of conspiracy second degree.  At sentencing, the State claimed that Smack acted as a “kingpin” in a drug operation and should be sentenced to the fifteen years recommended by the State instead of the eight years recommended by the defendant.  Smack requested an evidentiary hearing as part of sentencing, and argued that the State must prove his status as a drug “kingpin” by a preponderance of the evidence.  The Superior Court denied Smack’s request for an evidentiary hearing and ruled it could consider evidence offered by the State at sentencing if it met a “minimal indicia of reliability” standard. The court sentenced Smack to an aggregate of fourteen years at Level V followed by probation. Smack appeals and argues the Superior Court violated his due process rights by denying him an evidentiary hearing and applying the wrong burden of proof at sentencing.  According to Smack, the State was required to prove by a preponderance of the evidence that Smack was a drug kingpin.  Because this Court has previously upheld the use of a minimal indicia of reliability standard to consider evidence offered at a sentencing hearing, and due process does not require an evidentiary hearing, we affirm the Superior Court’s decision.

Here is the heart of the Delaware Supreme Court's analysis of the issue and rejection of the defense's contentions (with footnotes removed):

First, this Court settled the evidentiary standard in Mayes v. State, holding that “in reviewing a sentence within statutory limits, this Court will not find error of law or abuse of discretion unless it is clear from the record below that a sentence has been imposed on the basis of demonstrably false information or information lacking a minimal indicium of reliability.”  Smack argues Mayes does not apply because the standard was not contested.  But the fact the standard was not at issue is irrelevant — the Court explicitly stated the sentencing judge “comported with due process by relying on information meeting the ‘minimal indicium of reliability beyond mere allegation’ standard.”  Subsequent cases rely on Mayes in applying this standard.

Smack relies on a series of federal cases where the court applied a preponderance of the evidence standard to establish facts warranting a sentence enhancement under the federal sentencing guidelines.  According to Smack, the same burden of proof should apply to the State when it argued for a harsher sentence based on Smack’s status as a drug kingpin.  The federal cases, however, are inapposite.  Under the federal sentencing guidelines, the judge must find facts at sentencing using evidentiary burdens because those factual determinations can cause an increase in the sentencing ranges under the guidelines.  Here, Smack’s guilty plea resulted in a sentencing range of two to seventy-six years. To fix the sentence within that statutory range, the judge was entitled to consider all facts that had a minimal indicia of reliability — including the intercepted text messages and phone conversations that led to the seventy-seven charges of drug dealing brought against Smack.  The court could and did find from these facts that Smack was more than a street-level drug dealer.

As hard-core sentencing fans know, the Supreme Court three decades ago in McMillan v. Pennsylvania, rejected a challenge to a Pennsylvania statute's use of a preponderance-of-the-evidence standard in the application of a mandatory minimum sentencing statute.  Chief Justice Rehnquist in that opinion explained why the Court had "little difficulty concluding that ... the preponderance standard satisfies due process."  Of course, aspects of McMillan were overturned in Alleyne v. US with respect to any fact-finding that formally alters any legal limit of a judge's sentencing discretion, but that decision itself stressed it was not contradicting "the broad discretion of judges to select a sentence within the range authorized by law."  

Through communications with the attorney representing in the defendant in this case, I have learned that a cert petition is in the works.  Given the remarkable reality that we have gone nearly 230 years into our constitutional history without having come close to settling just what due process means at sentencing, I think it would be great (and long overdue) for SCOTUS to take up a case like this.

December 10, 2017 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Fascinating look at sentencing mitigation videos (and advocacy film festival)

The New York Times has this great new "op-doc" by Lance Oppenheim on the topic of sentencing mitigation videos under the headline "No Jail Time: The Movie." All sentencing fans will want to take the full 10 minutes to check out the video that is the heart of this op-doc (e,g., two-thirds in is an interesting reference to "the real America"). Here is part of the text that the filmmaker has with the video:

When my parents went to law school in the 1980s, they took courses on contracts, torts, criminal law, constitutional law — the list goes on. While there were lessons on persuasion, to be sure, they never took a class on how to tell a story. And they certainly never learned how to make a film.

Today, however, a growing number of lawyers are creating empathetic biographical mini-documentaries, or “sentencing videos,” to reduce their clients’ prison sentences. Inspired by the storytelling techniques of traditional documentary film, some lawyers team up with independent filmmakers while others become filmmakers themselves. These films are made for an audience of one: the presiding judge.

While videos have historically been permitted in the courtroom, this phenomenon took off in 2005, when the Supreme Court, in United States v. Booker, allowed trial courts to consider an offender’s “personal history and characteristics.” Before Booker, judges were bound by sentencing guidelines and were generally restricted in looking past a defendant’s crime and criminal record.

In sentencing videos, lawyers try to portray their clients in a positive light, notwithstanding the nature of the crime of which they were found guilty. These short videos, which can cost $5,000 to $25,000 to make, can be extremely effective, sometimes substantially decreasing sentences, including those involving the death penalty.

I immersed myself in this phenomenon at the The Sentencing and Post-Conviction Film Festival, held in New Orleans in June at an annual training conference for federal public defenders. The event is organized by Doug Passon, an attorney, filmmaker, attorney-filmmaker, and sentencing video expert.

Mr. Passon, who took film classes after law school and now runs a joint law firm and video production company in Scottsdale, Ariz., treats sentencing videos in an artful manner nearly indistinguishable from narrative-driven, fictional films. He has narrowed his focus to how sentencing videos can sway a judge’s decision. Having seen results from his own clients’ films, he’s determined to teach other lawyers how to create powerful stories.

In a drab hotel conference room filled with beleaguered lawyers, Mr. Passon offers a model: “Make judges suffer.” Not only should judges “agonize over the proper sentence in each case,” Mr. Passon said, they must also “truly feel the client’s pain as they do so.”

In photography and film, there’s an elusive color tone halfway between black and white called middle gray. Just like the phenomenon of middle gray, sentencing videos exist in an in-between space where legal conceptions of fact and fiction, right and wrong, become amorphous. Even though the videos are grounded in truth, their ability to play with judges’ emotions challenge the courtroom’s conception of “truth, the whole truth, and nothing but the truth.” What I discovered from looking at the growing practice of sentencing videos was far more complicated than I ever imagined.

In the aftermath of making this film, and as a filmmaker myself, I have continued to ask myself whether all documentaries are like sentencing videos. Facts presented in a subjective manner, with footage altered or deleted to serve the filmmaker’s message and elicit a particular emotion from an audience. In the case of sentencing mitigation films, we know the judge will be the final arbiter. For all other documentaries, though, the court of public opinion will need to decide what is, in fact, “true.”

A few prior related posts about sentencing videos:

December 10, 2017 in Procedure and Proof at Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (3)

Saturday, December 9, 2017

"Make or Buy? The Provision of Indigent Defense Services in the U.S"

I blogged here in August 2016 about an interesting draft paper authored by Yotam Shem-Tov then titled "Public Defenders vs. Private Court Appointed Attorneys: An Investigation of Indigent Defense Systems."  The draft sought to empirically examine different outcomes for defendants assigned different types of counsel.  The authored of that draft emailed me today to report that the paper is now "much more complete" compared to the prior noted draft.  The revised paper, available here via SSRN, is now going by the title that is the title of this post, and here is the new abstract:

U.S. courts provide constitutionally mandated legal services to indigent defendants via private court-appointed attorneys and public defenders' organizations.  I investigate the relative efficacy of these two modes of indigent defense by comparing outcomes of co-defendants assigned either a public defender or a private court-appointed attorney within the same case. Using data from San Francisco and federal district courts, I argue and show empirically that in multiple defendant cases public defender assignment is as good as random. Estimates show that public defenders reduce the probability of any prison sentence by 22%, as well as the length of prison by 10%.

Interestingly, as noted in a prior post, the early draft's abstract indicated a finding that "defendants assigned a public defender in co-defendant cases had slightly worse outcomes."  But then, as blogged here in January 2017, the author can to the inverse conclusion after checking his data and receiving feedback about his draft analysis.  And now it seems that, after finalizing the numbers, the author has seemingly concluded once-and-for-all that his data show that public defendants generally producing better outcomes than private court-appointed attorneys.

Prior related posts:

December 9, 2017 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)