Dark Clouds on the Horizon for Graham v. Florida?

In 2010, the Supreme Court ruled in Graham v. Florida that juveniles given a life sentence for nonhomicide crimes must be given “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” But what makes a release opportunity “meaningful”? The Court’s decision earlier today in Virginia v. LeBlanc suggests that the threshold may not be as high as some hoped.

LeBlanc was convicted of committing a rape when he was 16 and sentenced to life in prison without the possibility of conventional parole. On the face of it, this would seem a clear violation of Graham. However, in federal habeas proceedings, the state argued that LeBlanc would have his “meaningful opportunity” through a geriatric release program, which permits the release of some inmates who are age sixty or older.

Since many other states also have geriatric release programs, the issue presented by LeBlanc has important, national ramifications for the strength of the Eighth Amendment right recognized in Graham.

A district judge and then a panel of the Fourth Circuit held in LeBlanc’s favor. The Fourth Circuit noted the highly discretionary nature of the geriatric release decision under Virginia law, which effectively permitted the releasing authority to disregard an applicant’s “demonstrated maturity and rehabilitation,” contrary to Graham. 841 F.3d 256, 269 (4th Cir. 2016).

A unanimous Supreme Court reversed today in a brief per curiam opinion.   Continue reading “Dark Clouds on the Horizon for Graham v. Florida?”

Violence Prevention Initiatives: The Difficulty of Building on Early Success

Project Safe Neighborhoods has been among the highest-profile and best-funded national violence prevention initiatives of the past two decades, involving allocations of about $1 billion to U.S. Attorney’s Offices across the country. Evaluations to date have generally been positive, but a new study of the PSN experience in Chicago highlights the challenges of building on early success.

The researchers, Ben Grunwald and Andrew Papachristos, attempted a rigorous, beat-level analysis of the impact of PSN on troubled neighborhoods in the Windy City. With each of the nation’s U.S. Attorneys authorized to develop locally tailored PSN programs, there was considerable city-to-city variation in implementation. In Chicago, PSN had three primary components: (1) diversion of select gun-related cases from state to federal court, where there were often higher sentences available; (2) creation of a multi-agency “gun team” to investigate gun trafficking cases; and (3) development of in-person offender notification forums involving parolees and probationers who had been convicted of gun crimes. Forum attendees were both warned of the punishment they would face if they committed new gun crimes and offered social services to support better choices in the future.

PSN was rolled out in two phases in Chicago.  Continue reading “Violence Prevention Initiatives: The Difficulty of Building on Early Success”

Time to Revisit Wisconsin’s Jury Instruction on Reasonable Doubt?

Attorney (and prolific author) Michael Cicchini has been doing some interesting work on Wisconsin’s reasonable doubt instruction, including some empirical research with psychologist Lawrence White. Cicchini has now created a helpful resource page for criminal defense lawyers, which includes not only links to his own research, but also a sample brief and a list of judges who have already adopted modifications to the standard instruction.

Cicchini summarizes the problems with the standard instruction this way:

After explaining the concept of “beyond a reasonable doubt,” this instruction tells the jury “not to search for doubt,” but instead “to search for the truth.”

J.I. 140 is blatantly unconstitutional. First, telling the jury “not to search for doubt” is unconstitutional because, as other states have held, it is the jury’s duty to evaluate the state’s case for reasonable doubt. Second, telling the jury “to search for the truth” is unconstitutional because, as other states have held, it communicates the much lower “preponderance of evidence” standard, i.e., if the charge is merely probably true, the jury should convict.

Wisconsin’s War on Cocaine, 1986-1990

The new issue of Marquette Lawyer magazine has an excerpt of my book Wisconsin Sentencing in the Tough-on-Crime Era. The excerpt covers changes to drug sentencing in the late 1980s, which were largely motivated by concerns about cocaine, especially in its crack form. As others have observed, the harshly punitive response to the crack epidemic in the 1980s contrasts markedly with the more balanced response to the current opioid epidemic. Given the widespread perception that crack was the drug of poor urban blacks, might the different responses to the two crises be explained, at least in part, by race and class?

1 in 7 U.S. Prisoners Now in for Life

According to a new report by the Sentencing Project, there are now 206,268 life-sentenced prisoners in the United States, amounting to one in every seven inmates. As a result of a long-term national crime decline and years of effort in many states to divert nonviolent drug offenders from prison, the nation’s overall incarcerated population has been slowly dropping in recent years. However, the number of life-sentenced inmates has continued its seemingly inexorable increase.

The Sentencing Project has helpfully tracked life-sentence trends in a series of reports since 2004, but the new publication includes a valuable addition to the data: those inmates who do not formally have a life sentence, but whose prison terms are so long that they may be fairly characterized as life sentences anyway. The Sentencing Project defines these “virtual life” sentences as those involving prison terms of at least fifty years. Given an average age at arrest of thirty for violent offenders, and a life expectancy of forty-eight more years for American males of that age, the fifty-year cutoff seems reasonable. Using this criterion, the Sentencing Project counted 44,311 inmates with virtual life sentences (included in the 206,268 figure noted above).

Most of the life-sentenced inmates are at least theoretically parole-eligible.  Continue reading “1 in 7 U.S. Prisoners Now in for Life”

New Research Suggests Potential of Prison Furloughs, But Shadow of Willie Horton Still Looms

It remains the paradigmatic moment in the modern history of tough-on-crime politics. In  the summer of 1988, Michael Dukakis, the Democratic Governor of Massachusetts, seemed to be cruising toward a presidential election victory in November. Then, Republican operatives began to pummel him for a horrific failure in Massachusetts’s prison furlough program. This program offered short leaves for inmates to spend time at home, which was thought to help prepare them for their permanent release. The program had a good track record until an inmate named Willie Horton absconded during one of his releases and brutally assaulted a young couple. As the Horton story became more widely known nationally, Dukakis’s lead in the polls evaporated. His eventual loss seemed to confirm that politicians could no longer afford even a tangential association with policies or programs that were perceived to be soft on crime.

The Horton story reverberated for years across the whole field of criminal justice, but perhaps its most direct impact was a sharp constriction in prison furlough programs, which had previously been widely accepted and utilized by American corrections officials.

As furlough programs faded away, so, too, did research on their effectiveness. Although several older studies suggested that furloughs might help to reduce post-release recidivism, there has been a growing need for updated research.

A new paper by L. Maaike Helmus & Marguerite Ternes helps to fill the gap.   Continue reading “New Research Suggests Potential of Prison Furloughs, But Shadow of Willie Horton Still Looms”

A Win for Judicial Sentencing Discretion in Armed Robbery Cases; Additional Reform Still Needed

Earlier this month, in Dean v. United States, the Supreme Court ruled that federal sentencing judges retain some discretion to soften the notoriously draconian sentencing scheme of 18 U.S.C. §924(c). The statute establishes a mandatory prison term when a defendant uses or possesses a firearm in connection with a violent or drug trafficking crime. Unlike most minimums, though, this one must be imposed to run consecutively with any other sentences imposed at the same time. Thus, for instance, a defendant convicted of both a robbery and possession of a firearm during the robbery must get at least five years on top of whatever sentence is ordered for the robbery.

But what if a judge—in light of all of the facts of the case and the circumstances of the defendant—decides that five years is a sufficient punishment for the crime? Could the judge impose a sentence of just one day on the robbery count, so that the total sentence does not exceed what is necessary? In other words, in sentencing for the robbery count, can the judge take into consideration what she will have to impose for the §924(c) count?

Yes, said the Supreme Court in Dean.   Continue reading “A Win for Judicial Sentencing Discretion in Armed Robbery Cases; Additional Reform Still Needed”

Juvenile Court or Adult? New Research on the Consequences of the Decision

Juvenile courts were invented at the end of the nineteenth century and spread rapidly across the U.S. Proponents argued that juvenile offenders were more readily rehabilitated than adults, and should be handled through a different court system that focused on treatment and spared offenders the permanent stigma of a criminal conviction. By the 1990s, though, attitudes toward juvenile offenders had grown more pessimistic and punitive. Although juvenile courts were not eliminated, most states adopted reforms that either reduced the maximum age for juvenile court jurisdiction or facilitated the transfer of some juveniles to adult court.

More recently, the pendulum of public opinion has begun to swing back in favor of juvenile courts. Connecticut, Illinois, Louisiana, Massachusetts, Mississippi, New Hampshire, and South Carolina have all expanded the jurisdiction of their juvenile courts. There has also been a push in Wisconsin to raise the age of majority and keep some seventeen-year olds in juvenile court. A few states are even considering raising the age of majority to twenty-one.

Two intriguing new articles explore some of the social consequences of channeling more young offenders into juvenile court.   Continue reading “Juvenile Court or Adult? New Research on the Consequences of the Decision”

My New Book Is Out, Explains Persistence of Mass Incarceration in America Despite Two Decades of Reform Efforts

My new book, The Failure of Sentencing Reform, is now out. (Publisher webpage here; Amazon here.) The book is a sort of coming full circle for me. Back in 2002, near the start of my career as a law professor, I wrote a short essay entitled “The New Politics of Sentencing,” in which I heralded bipartisan sentencing reforms that had recently been adopted in a handful of states. The reforms focused particularly on reversing excessive drug imprisonment and resulted in large part from the fiscal pressures created by mass incarceration. “Faced with crushing budget deficits,” I predicted, “states will no doubt continue to look to corrections as a source of cost-savings.”

Fifteen years later, my prediction has been confirmed: nearly all of the states have now adopted reforms that roll back mandatory minimums, permit earlier release from prison, or promote alternatives to incarceration. Yet, the national prison population stands today essentially where it was in 2002. This is the failure I explore in the book. In particular, I highlight two fundamental flaws with reform efforts to date: (1) an excessive emphasis on moving non-violent drug offenders out of prison, even though this population had not been a major driver of mass incarceration; and (2) an excessive reliance on prosecutorial, judicial, and correctional discretion, with little attention to the fiscal and political considerations that push officials to err on the side of incarceration.