No Harm, No Foul — But How Do You Know If There Was Harm?

Yesterday, the U.S. Supreme Court agreed to hear a case that gives the Court an opportunity to clarify a longstanding ambiguity in harmless error law.  Even if a defendant’s procedural rights have been violated at trial, a conviction will not be reversed on appeal if the error was harmless.  However, the Court has at different times articulated the harmless error standard in two different ways, without ever clearly indicating whether the two formulations are substantively different and, if so, which one is preferred.

In the new case, Vasquez v. United States (No. 11-199), the defendant’s cert. petition focused squarely on this ambiguity, arguing that the majority opinion below (635 F.3d 889 (7th Cir. 2011)) rested on one formulation, while the dissenting opinion rested on the other.  In Vasquez’s view, the choice of harmless error standard is more-or-less dispositive in his case, thus making the case an appropriate platform for deciding which standard is the right one.  In its response, however, the government disputes that there is any substantive difference between the standards.

Here are the (allegedly) competing standards.

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SCOTUS to Decide Retroactivity of Fair Sentencing Act

Congress scaled back penalties for crack cocaine in the 2010 Fair Sentencing Act, but did not indicate how the law was to be applied to defendants who committed their crimes before the Act’s effective date.  The circuits have split on this question, and the Supreme Court has now granted certiorari in a pair of Seventh Circuit cases in order to resolve the split: United States v. Fischer, 635 F.3d 336, and United States v. Hill, 417 Fed. App’x 560.  I blogged about Fischer at the time it was decided, here.  I’m hoping for a reversal of the Seventh Circuit’s approach, which needlessly denies many defendants the benefits of the FSA’s much fairer, but still plenty tough, crack sentencing regime.

A Tale of Three States, Pt. 2: Racial Disparities

In the first post in this series, I highlighted a sizable gap between the incarceration rates of Minnesota and Wisconsin.  Although the two states have similar crime rates, Wisconsin has more than twice Minnesota’s incarceration rate (651 per 100,000 versus 310).

In this post, I cover racial disparity data in the two states.  As summarized in a helpful new article by Michael Rocque (“Racial Disparities in the Criminal Justice System and Perceptions of Legitimacy: A Theoretical Linkage,” 1 Race & Justice 292 (2011)), a substantial body of research documents wide racial disparities in the American criminal justice system.  Consistent with the national data, and despite longstanding reputations for progressive politics, both Minnesota and Wisconsin exhibit troublingly large disparities in white and black incarceration rates.

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U.S. Probation Population Continues to Drop: What’s Happening in Minnesota?

The Bureau of Justice Statistics released a new report yesterday showing that the number of adults under community supervision declined by 1.3 percent in 2010.  Entitled Probation and Parole in the United States, 2010, the report summarizes the most recent national data on community supervision.  The decline in 2010 built on a smaller drop in 2009, and may point toward a long-term retreat from the massive increase in the American supervised population that occurred in the 1980’s and 1990’s.

Yet, even following a two-year drop, the supervised population stood at 4,887,900 at the end of 2010, or about one in every 48 adults.  This compares to a supervised population of less than 1.4 million in 1980.

The supervised population includes both probationers and those released from prison to community supervision.  (BJS refers to the latter population as “parolees,” although many jurisdictions no longer use the term “parole.”)  The overall drop in the supervised population was driven entirely by a 1.7 percent decline in probationers; the number of parolees actually increased slightly in 2010.  Like the overall drop, the probation decline in 2010 built on a smaller drop in 2009.

Why are fewer Americans on probation?  The report provides no definitive answers, but some clues are apparent.

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Seventh Circuit Overturns Sentence for Lack of Responsiveness to Defendants’ Arguments for Lenience

Henry and Elizabeth Robertson were involved in a mortgage fraud scheme in the 1990’s.  Many years later, they were charged with and pled guilty to wire fraud for their part in the scheme.  Despite an unusual and compelling story of self-motivated rehabilitation, they were sentenced to 63 and 41 months of imprisonment, with almost no comment by the district judge in response to their arguments for lenience.  Earlier this week, however, the Seventh Circuit vacated the sentences based on this lack of responsiveness.  United States v. Robertson (No. 11-1651).

The decision rests on a line of Seventh Circuit cases going back to United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005).  These cases, which have not been followed in some other circuits, require district judges to address nonfrivolous arguments for a below-guidelines sentence.  As I discussed in this article, I think the Cunningham rule should be adopted more widely and enforced more rigorously.  For that reason, I’m glad to see the Seventh Circuit reaffirm the rule in Robertson.

Although it does not purport to break any new legal ground, the decision nonetheless has some noteworthy aspects.

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My Defense of Parole Now Out in Print

My article “Beyond Rehabilitation: A New Theory of Indeterminate Sentencing” is now out in print at 48 Am. Crim. L. Rev. 1247.  The article is on-line here.  The abstract is as follows:

Indeterminate sentencing—that is, sentencing offenders to a range of potential imprisonment with the actual release date determined later, typically by a parole board—fell into disrepute among theorists and policymakers in the last three decades of the twentieth century. This sentencing practice had been closely associated with the rehabilitative paradigm in criminal law, which also fell from favor in the 1970s. In the years that followed, most states eliminated or pared back the various devices that had been used to implement indeterminate sentencing, especially parole release.Yet, sentencing remained indeterminate in most places to varying degrees, and now parole and similar mechanisms are staging an unexpected comeback. However, despite its perseverance and apparent resurgence, indeterminate sentencing has lacked any clear theoretical foundation since the demise of the rehabilitative paradigm. Indeed, indeterminate sentencing is commonly thought to conflict with retributivism, the dominant approach to punishment theory today. The lack of a clear theoretical foundation has likely contributed in recent decades to the ad hoc expansion and contraction of parole in response to short-term political and fiscal pressures.

In the hope of bringing greater stability and coherence to what seems once again an increasingly important aspect of our penal practices, this Article proposes a new normative model for indeterminate sentencing that is grounded in a retributive, communicative theory of punishment. In essence, the model conceives of delayed release within the indeterminate range as a retributive response to persistent, willful violations of prison rules. The Article explores the implications of this model for prison and parole administration and for punishment theory.

A Tale of Three States, Pt. I

In this post from a few months ago, I offered a preliminary assessment of the wide disparity in incarceration rates between Wisconsin and Minnesota.  I had just enough data then to raise some interesting questions.  Now, with the capable help of a research assistant, Garrett Soberalski, I’ve assembled a much more extensive body of data, which I expect to analyze in a series of posts.  Among other things, I thought it would be helpful to add a third state to the mix, so Indiana will also be included in the comparison.  Another medium-sized midwestern state, Indiana has incarceration numbers that are even higher than Wisconsin’s.

In this initial post, though, I will focus just on the basics of the Wisconsin-Minnesota comparison.

So, here’s the essential story (as detailed in the chart that appears after the jump): Wisconsin incarcerates many more people than Minnesota, while Minnesota puts many more individuals on probation.  The two states have about equal levels of crime, and Minnesota actually has a larger percentage of its population under supervision (that is, either incarcerated or on probation or parole release).  However, because incarceration is so much more expensive than community supervision, Minnesota’s corrections budget is much smaller than Wisconsin’s (about $99 per resident, versus Wisconsin’s $234 per resident).  Given the similarity of the two states’ crime rates, it appears that Minnesota’s probation-based strategy is delivering more bang for the buck than Wisconsin’s.

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Sentencing Commission Criticizes Mandatory Minimums in Comprehensive New Report

What more is there to be said about mandatory minimums?  Everyone already knows they are bad sentencing policy.  Pursuant to congressional directive, however, the U.S. Sentencing Commission last week issued a comprehensive new report on federal mandatory minimums.  I doubt it’s a game-changer, but the report does include a wealth of interesting new data.

First, though, there are the Commission’s recommendations.  Here are the (eminently sound) overarching recommendations:

A strong and effective sentencing guidelines system best serves the purposes of the Sentencing Reform Act. . . . If Congress decides to exercise its power to direct sentencing policy by enacting mandatory minimum penalties, the Commission believes that such penalties should (1) not be excessively severe, (2) be narrowly tailored to apply only to those offenders who warrant such punishment, and (3) be applied consistently. Sentencing data and interviews with prosecutors and defense attorneys indicate that mandatory minimum penalties that are considered excessively severe tend to be applied inconsistently.  (xxx)

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SCOTUS to Revisit Juvenile LWOP

Yesterday, the Supreme Court granted certiorari in two new cases that will test the limits of the Court’s important 2010 ruling in Graham v. Florida, which banned the sentence of life without possibility of parole for most juvenile offenders.  Graham recognized an exception, however, for juveniles convicted of homicide.  It is this exception that is at issue in the two new cases, both of which involve fourteen-year-old killers.

The two cases are Miller v. Alabama (opinion below: 63 So. 3d 676 (Ala. Crim. App. 2010)) and Jackson v. Hobbs (2011 Ark. 49).  The question granted in each case is the same, and they are to be argued together.  It appears that the defendants are presenting a categorical challenge to JLWOP as applied to fourteen-year-olds.

In Graham, the Court for the first time used such a categorical approach in evaluating an Eighth Amendment challenge to a noncapital sentence, so we know that the Court is open to this approach.  But the Court also heavily emphasized the homicide-nonhomicide distinction — are the justices prepared to reject or blur that bright line so soon after drawing it?

In the defendants’ favor is their very young age.  There are precious few fourteen-year-olds who are convicted as adults for homicide, so the Court could carve out the very young from the Graham distinction without affecting many cases.  But that will just invite a fresh set of challenges from fifteen-year-olds, and then sixteen-year-olds, and then seventeen-year-olds.  Any line drawn based on chronological age is bound to be somewhat arbitrary, and the Court may not want to head down a path that will eventually require such a line to be drawn.

There may also be distinctions to be drawn based on the type of homicide crime.  In this regard, Miller seems differently situated than Jackson (which may explain why the Court took both cases for argument on the merits).  Both were convicted of capital murder, but Jackson on a more technical, felony-murder theory; he was a minor accomplice in an armed robbery that went bad.  Miller, however, was more directly responsible for his murder and even made a statement indicating an intent to kill.  It might be possible in the JLWOP context to draw a protective rule for relatively low-culpability accomplices, much as the Court has already done for adults in the death-penalty setting.

There are a lot of different directions the Court might go in these two cases.  However they turn out, the one thing for certain is that Justice Kennedy will be in the majority.

New (and Improved) Schedule

I’ve been a bit erratic in my blogging this fall as a result of the press of other commitments.  This week, I’ll start using a different approach, with posts appearing (I hope) on a regular, Tuesday-and-Friday-morning schedule.