The January 30 issue of the New Yorker has an intriguing article by Adam Gopnik, “The Caging of America: Why do we lock up so many people?” Perhaps we’ve grown a bit cynical, but we expected yet another inane media whine about increasing rates of imprisonment “despite” fewer crimes being committed. We were surprised to find a thoughtful — at times insightful — look not only at the reality of American incarceration, but also at what causes crime to go up and down. It’s rare enough for a news or magazine writer to do even that much. To his credit, Gopnik goes one further, making a creditable attempt at objectivity — dismissing, debunking and blaming both the right and the left — though his apparent left-ish leanings still come through from time to time.

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Gopnik’s main points are these:

Incarceration is happening on an unprecedented scale in our history. It’s been growing ever faster since the 1970s. Its ubiquity and brutality have become accepted parts of the culture. Northern and Southern thinkers have come up with different explanations and solutions. Northern thinkers like William J. Stuntz see prison as a place for rehabilitation, and the injustices as the result of our system’s reliance on procedural correctness rather than individual justice, from the Bill of Rights through the present day — a problem to be solved by letting common sense and compassion be the focus on a case-by-case basis. Southern thinkers like Michelle Alexander see prison instead as a means of retribution, and the injustices of the system are part of its design to trap and control young black men.

As incarceration rates more than tripled between 1980 and 2010, the crime rate itself went down. “The more bad guys there are in prison, it appears, the less crime there has been in the streets.” The huge growth in imprisonment, and the policies that led to it (such as harsher drug laws, zero-tolerance policies, restricted sentencing discretion, etc.) were a reaction to the big-city crime wave of the 1960s ad 1970s — a crime wave that owed its existence to liberal policies that had crossed the line from mercy to abdication. Meanwhile, research began to reveal that rehabilitation doesn’t work, and bad guys weren’t getting better, and so all you could do was lock them up to keep them off the streets.

Starting in the 1990s, crime rates began to drop — by 40% nationwide, and 80% in New York City. Demographic shifts don’t account for it. Neither do broken-window policing, keeping the really bad guys behind bars, welfare reform, or other right-wing explanations. The left’s insistence that crime comes from poverty, discrimination and social injustice didn’t work, either, as none of those things changed enough to account for the drop in crime. The economy didn’t have an effect.

What did have an effect in New York City, however, was CompStat — the NYPD’s use of statistical analysis to focus police presence in places where it was needed most — with significant results on the occurrence of crime in those “hot spots.” The NYPD also began aggressively stopping and frisking people who fit the profile — not a racial profile, as everyone where it was happening were of the same race, but instead a “social” profile of “the thousand small clues that policemen recognized already.” Poor communities had to put up with more police intrusion, but they benefited from “a disproportionate gain in crime reduced.” (And though the NYPD uses stop-and-frisks of low-level offenders to identify them in the system in case they commit a real crime later, the other police forces around the country use it to actually lock up marijuana possessors — an offense that’s been decriminalized in New York since forever, but that still gets you jail everywhere else, it seems.) The result in New York City has been criminals being forced to stop committing crimes brazenly in public — many have either taken their activities indoors (and thus ended much need for violent turf wars) or stopped altogether.

Preventing criminals from doing their thing in place A did not lead others to do it in place B, but rather to nobody doing it at all. People stopped getting used to crime happening, stopped seeing people they knew committing crimes, and THAT was the biggest factor of all.

So what really happened was a cultural shift. Crime stopped being so much “something everyone’s doing,” and so much less likely to be something an individual would consider. Conservatives don’t like this, because it means it’s pointless to get tough on criminals. Liberals don’t like this, because it means it’s pointless to be nice to criminals.

So back to prison. If it doesn’t rehabilitate anyone, and it has hardly any deterrent effect whatsoever, then nobody should be in prison for a nonviolent crime. Locking up marijuana dealers and Ponzi schemers is pointless. They’d be just as deterred by the threat of lost reputation and assets, and having to do community service as their new full-time job — and if that won’t deter them then prison won’t either. Instead, prison should be reserved for that one person in a thousand who is a violent threat, or who has committed a truly awful crime.

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 It’s a lovely bit of writing, and our TL;DR précis doesn’t do it justice. Longtime readers of The Criminal Lawyer will note some common ideas, so it’s no surprise that we think so highly of it.

There’s a lot of scholarship going on right now about what’s wrong (and what’s right) with the American criminal justice system. Gopnik does a good job of summarizing what’s being published out there right now, and putting his own spin on it. Of course there are things we’d say differently, things we disagree with, points we think unrealistic. We could add plenty of things like how poor minority communities in the late ’90s actually teamed up with law enforcement, voluntarily and expressly waiving some of their Fourth Amendment rights to enable the cops to catch the drug dealers who were destroying their neighborhoods. We could argue that the whole “Northern/Southern” thing is a load of hogwash on both sides. We could take issue with the characterization of what conservatives actually believe. Still, we’re here not to bury Gopnik, but to praise him. This one’s not about what we think, for a change.

So give it a read. You won’t regret it.

Bill Otis, a former AUSA and now an adjunct at Georgetown Law, had a piece earlier this month in the Federalist Society’s magazine Engage titled “The Slow, Sad Swoon of the Sentencing Suggestions.”  His article opens with the sentence “The Guidelines are a lost cause.”  We were in total agreement so far.  But by the next sentence, he’d lost us.

It’s a good article, don’t get us wrong, and well worth reading.  But Prof. Otis’ main point is that the Guidelines stopped being useful after Booker made them optional.  He’d prefer to completely do away with them, but only to replace them with more stringent rules that remove most of the discretion judges now have in sentencing.  We cannot agree.

The Guidelines were enacted back in 1987 largely in response to a perception that sentencing was too unpredictable.  For any given crime, Judge A might give three years in prison while Judge B might give only one.  Or Defendant X might get prison while Defendant Y only got probation.  The Guidelines corrected that by removing much of the discretion judges had.  For a given offense, and a given criminal history, there was a range of permissible definite sentences that could be imposed.  Some discretion was allowed for slight downward or upward departures to different ranges.  Less discretion was allowed for variances, sentences that rejected the Guidelines as inappropriate.  Needless to say, judges hated this loss of discretion from day one.  The Guidelines were not mere guidelines, but strict rules.  It stayed that way until the 2005 Booker decision restored them to the general rule-of-thumb they were meant to be.

Now, the Guidelines are still important at sentencing.  Everyone uses them, everyone applies them.  Now, however, once the appropriate Guideline range has been calculated, there is more room for advocacy to seek a different sentence, and judges are able to consider different sentences on a case-by-case basis.

Some, like Otis, decry this as a return to the unpredictable bad old days, where one’s sentence varied based on the “luck of the draw” of which judge one happened to have.  Others praise it as a movement towards greater individual justice.

The division here is deep, a seemingly irreconcilable difference of core principles of what criminal justice is supposed to do.

On the one hand, you have those who want predictability, uniformity and consistency.  If stealing $50,000 is worth five years (or whatever), then it’s worth five years.  What’s important is the crime, not the criminal.  If society knows that a given crime gets you a given sentence, then the law has a more deterrent effect.  The penalty works to prevent more of the same crime, and society benefits.  Taking into account such variables as the thief’s personal circumstances or the judge’s gut feeling that this wasn’t such a big deal — or conversely variables such as the relative harm suffered by the particular victim or the judge’s gut feeling that this was worse than usual — makes for an unpredictable world where nobody knows what a given crime is worth.  Without predictability, the law loses its deterrent effect.  Society suffers.  The purposes of punishment that are most important to this group are retribution — a given crime is worth a given penalty — and general deterrence.

On the other hand, you have those who want individualized sentencing.  Make the punishment fit the criminal, not the crime.  Justice is not what happens on average, it is what happens to this individual standing right here right now.  And even general deterrence is achieved not by specific sentences, but by the general awareness that some punishment is going to happen.  The uncertainty of what that penalty might be doesn’t lessen the deterrent effect of this awareness.  And the retributive aspect of punishment must be proportional to be just.  A one-year sentence might be devastating to the life of a middle-class college grad whose career will be ended, whose reputation in his relevant community will be destroyed, and who will suffer the consequences deeply for the rest of his life.  That same one-year sentence might be a walk in the park (or as one of our clients once put it, “a nice vacation”) with little or none of the devastation suffered by the other.  Justice demands that individual differences be taken into account.  And that demands that judges be given the discretion to do so.

These two positions — general justice vs. individual justice — are usually irreconcilable because they use the same words to mean different things.  They can’t even begin a discussion because they’re arguing from core principles that don’t correspond.

But beyond that, those who value general consistency over individual appropriateness miss the entire point of our criminal justice system.  The whole point is to ensure individual justice, while protecting the individual from the overwhelming might of the government.  It’s inefficient as hell, but on purpose.  Efficiencies and averages and consistency are bright lines that do not, cannot, take into consideration the details of this particular case, this particular person.  Rules that work fine for most people will always have individuals here and there who suffer unfairly.  Those who say this is a necessary sacrifice to the greater good simply miss the whole point of what our system’s been trying to accomplish since the Middle Ages.

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In a phone conference today, Prof. Otis made some more points in favor of abolishing the current federal sentencing system, and replacing it with mandatory, quasi-determinate sentencing.  There should be mandatory minimums for a given crime.  There should not be a mandatory maximum, however (what he refers to as “topless” sentencing).  He calls this a return to the Rule of Law, restoring the rule of law to sentencing.

He’s right to say that the whole point of the Rule of Law is to constrain the discretion of the mighty.  But how he says it shows that he misses the point entirely.  The point of the Rule of Law is to protect the individual by ensuring that those with power, including the government, are subject to the same law.  But Otis perverts this into an idea of protecting the government (or its stand-in “society”) from the whims of judges with the power to impose lighter sentences than those the government would prefer.  It sounds good when he says that the point of the Rule of Law is to constrain the discretion of the powerful, and replace their whims with written rules that even the powerful must follow.  But he’s not talking about protecting the individual from the might of the state.  He’s talking about protecting the state against judges who would otherwise protect individuals from the state.

It’s almost Orwellian.

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In his remarks today, Prof. Otis decried the fact that judges like to depart downward from the Guidelines.  Before Booker, they were followed 80% of the time, but now they’re only followed 63% of the time, and at the present rate of decline the Guidelines will be disregarded in a majority of cases within three years.  ”Sentencing,” he says, “is now the defendant’s playground.”  Downward departures outnumber upward departures by 20 to 1.  Individual judges are deciding that the Guideline ranges for certain cases (notably white-collar defendants and child porn possessors) are out of whack, and are imposing sentences they believe to be more fair.

He says this like it’s a bad thing.

Of course, what’s really going on here is judges are trying to do the right thing.  They’re trying to work out individual justice for the case in front of them, instead of trying to manage some technocratic generalized ideal.  Sentences for many cases are too high.  The Guidelines for many cases are unfair.  Judges get it.

The solution isn’t to do away with judges’ power to do the right thing on a case-by-case basis.  The solution is to make sure they can do the right thing.

The Guidelines are not the way to do it.  Even if they continue to be perceived as a mere rule-of-thumb that applies to most — but not all — cases, the Guidelines are still insane.  Even with the latest corrective measures, cocaine as used by inner-city black folks is penalized several times more harshly than no-less-harmful cocaine in the form as ingested by upper-class whites.  Possessing (admittedly awful) pornography is still penalized far worse than the actual molestation of an actual child.  And sentences for the crime-du-jour only ever ratchet upwards.  Sentences only get more and more disproportionate to the underlying harm, as time goes on.

The way to do it is to restore discretion to the judges, to put people away for the appropriate amount of time considering not only what they did but who they are.

Prof. Otis himself almost made this point today.  He mentioned that the ever-longer sentences imposed under the Guidelines share some of the responsibility for the huge drop in crime since they were imposed, if for no other reason than they are keeping off the streets the very people who otherwise would have committed crimes had they gotten out sooner.

Exactly.  That’s a characteristic of the individual that is meaningful.  If someone is likely to be a threat, then it might make sense to keep him off the streets a bit.  But if someone is never going to be a threat again, maybe it makes just as much sense to not lock him up for quite so long — or even at all.  Prof. Otis is willing to consider the first option, but isn’t willing to let judges consider the second.

And that’s just not right.

Too many people are in jail.  The rate of incarceration is just going up and up.  Is it doing any good?

If you look at the two graphs above, you’ll see that the prison population in the United States has soared, while the amount of violent crime has plummeted.  The prison population of 1.5 million is about triple what it was in 1980.  Meanwhile, according to the DOJ’s figures, violent crime is about a third of what it was in 1980.  It’s an uncanny correspondence, that incarceration has tripled while violence has thirded (yes, that’s a real word).

Some people look at this and say there’s an inherent absurdity, an inherent injustice, that even though crime is down jailings are up.  Others say it’s obvious that, if you jail the people who commit crimes, they’re not going to be walking around to commit as many crimes.  One sees a paradox, the other sees causation.  (These are not straw men, by the way.  These positions have been taken on the pages of the New York Times and the Wall Street Journal, among others.)

There really isn’t any paradox, of course.  It’s not like more people are being imprisoned than there are crimes being committed.  Last we heard, everyone in prison was convicted of something.

What’s going on here is that more and more convictions are resulting in incarceration.  Crime may be down, but the proportion of crimes you’re likely to go to jail for is way up.

Nonviolent crimes, in particular, are far more likely to get you a jail sentence these days.  Since about the start of the Clinton administration, the number of different kinds of nonviolent offenses has skyrocketed.  And drug crimes have been a growing proportion since the Reagan years.

Several factors are involved in this dramatic increase in prison for nonviolent offenses.  One is a dramatic increase in regulatory violations that have been criminalized.  Regulatory agencies have started using criminal law as a tool — a tool that is wrong for the job, and one they are ill-equipped to use.  Voluminous regulations are created to micromanage how people can live their lives and operate their businesses.  Fines, denial of permits, and other civil penalties are the normal and appropriate method for enforcing compliance with all the regulations.  But over the past generation, regulators have become emboldened to impose criminal penalties for violations of their rules.

These regulations are rarely drafted by anyone who has the slightest clue of what criminal law is, why it exists, and how it works.  So they tend to leave out little things like mens rea.  Everything’s a strict-liability crime with them. In the regulatory world, simple mistakes are indistinguishable from deliberate transgressions.  When the penalty is denial of a permit, that’s not a problem.  But when the penalty is prison, it’s a big problem.  And everything’s a federal offense, which almost always means a felony.  Instead of, you know, regulating conduct, the regulators use the criminal law to keep the unruly masses in line.  And more people face prison as a result.

Another factor is the elected politicians’ desire to look “tough on crime.”  Which results in a steady ratcheting-up of sentencing for existing crimes, as we’ve discussed before.

It also results in the creation of new crimes, harsher statutes to deal with the public outcry of the moment, like crack or hate crimes or insider trading or what have you.  These new offenses are rarely necessary, as existing laws tend to already punish the conduct.  But the new ones often carry greater minimum sentences, and that’s the whole point.  So more people are facing prison, and for longer stretches of time, than before.

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The situation is getting out of hand.  It’s gotten to the point where small corrections aren’t going to cut it.  Drastic measures would be needed.  And drastic measures being, you know, drastic and all, they’re not likely to be undertaken any time soon.

But let’s say we’ve got a genie who’s offered to grant us three wishes here.  What would they be?

Wish one would be regulatory reform: Nothing may be criminalized except by a statute passed by the legislature.  Crime is that thing which is so offensive to the general population, or so harmful to the community, that society agrees it should be punished by the deprivation of one’s life, liberty or property.  It is a cultural thing, created by the people.  The people need to have a say, if it’s going to be legitimate.  Rulemakers and bean counters cannot be permitted to do it behind our backs, even if they think it’s for our own good.  That’s not how it works.

Wish two would be conceptual: No conduct may be criminalized unless it actually causes real, perceptible harm, and it’s done with some criminally bad state of mind.  That means no strict-liability offenses — accidents and mistakes must be protected from penal consequences.  That also means no victimless crimes — certain “quality of life” offenses, personal-use drug offenses, and white-collar offenses are going to go out the window.  (And with drug convictions accounting for roughly half of federal inmates and a fifth of state inmates at the moment, this right there would cut out a huge chunk of the excess prison population.)  But white-collar thieves, organized drug dealers, and the like will still face punishment for conduct that society rightly abhors.

Wish three would be much more extreme: Sentencing must be entirely individualized, to determine whether incarceration is actually necessary for this particular person.  That means no minimum sentences for anything.  That means person A can get probation for violating the same statute that gets person B fifteen years.  Too bad.  A lot of people are in prison who don’t belong there.

Mandatory minimums make no sense.  They appease those who cry “injustice” when they see person A get treated differently from person B, because person A has different circumstances.  But it is that very one-size-fits-all attitude of moral equivalence that is the source of great injustice.  Contrary to Clint Eastwood’s line in “Unforgiven,” deserve’s got everything to do with it.

Most people who get in trouble with the law never get in trouble again.  Depending on the study you read, the figure is somewhere around 83% of people whose first contact with the criminal justice system is their last.  We all know this is true, and that’s why we have things like probation and consent decrees and adjournments in contemplation of dismissal — to give people a chance to prove they’re not one of the ones we have to worry about, one of the recidivists we need to deter or remove through incarceration.  Similarly, rehabilitation — drug treatment programs and the like — is reserved for the rehabilitatable.

But these chances are only extended to those who commit minor offenses which, arguably, weren’t worthy of punishment in the first place.  But if the system was internally consistent, these alternatives to incarceration would be available at every level.

We can hear some of you protesting that some crimes are just so inherently bad that the criminal must be locked up.  Murderers and rapists, for example.  Well, what makes their crimes so inherently bad?  Is it the act itself, or some combination of the act and their own character?  It can’t be the act itself, or else there’d be no such thing as justifiable homicide.  The criminal’s personal characteristics, such as his mental state when committing the offense, are of course factors to be considered.  Why not include such factors as whether this person is likely to ever reoffend again?  Even a man who killed once in a fit of passion may pose zero threat of future violence.  Most killers probably do pose a threat, but what about the ones who don’t?  What interest does the state have in locking them up?  Surely there are other punishments that can exact the state’s revenge just as well.  And the victims and their loved ones always have the civil courts in which to seek their own redress — we keep forgetting that the prosecution is not the victim’s lawyer, and is not there to serve the victim’s needs.

Ah, but it’s not all about the criminal here.  Punishment also serves to deter others.  Shouldn’t there be some general sense that, if you kill someone, you’re going to go to jail?  Well, no.  The people who aren’t likely to ever do it again are the same ones who aren’t likely to do it in the first place, regardless.  They’re not deterred by the threat of prison; they’re deterred by the knowledge that it’s wrong.  Deterrence only works on those who are open to the possibility of doing it, and who are premeditating the crime enough to consider the costs and benefits.  It’s really irrelevant here.

Punishment only serves a few purposes, after all.  If, after weighing them all, they can be served by something other than incarceration, then why incarcerate?  If you’ve got a crime where there’s no need to deter this individual from doing it again, no point to deterring others similarly situated, no reason to think that prison will rehabilitate him, no need to keep him off the streets for public safety — what possible reason is there to imprison him?  The only reason that remains is retribution, a form of institutionalized revenge.  An unthinking, uncivilized infliction of harm without regard to whether it serves any purpose or not.  Our society has evolved beyond it as a justification for punishment.  So if that’s all that remains, then it shouldn’t be permitted to affect the sentence that is imposed.

No, mandatory minimum sentences make no sense.  They appease the wrong sensibilities, and only cause individual injustice and overpopulated prisons.  Wish three would be for every sentence to be entirely suited to the individual offender, as well as to the needs of society.

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None of these three wishes are going to be granted any time soon.  They require more gumption from our legislatures than is realistic to hope for.  And the third wish is likely to be shouted down from the left and the right, the egalitarians and the eye-for-an-eyers.  But they’d work to reduce the inherent injustice of our ever-growing rate of incarceration in this country.

Still, that’s just our idea at the moment.  We’re sure that many of you have better ideas.  Well, fire away, we’d love to hear them!

We rag on Attorney General Eric Holder from time to time on this blog.  For good reason — he’s been something of an idiot on profiling, miranda, terrorism, etc..  But today he did something praiseworthy, and we’d be out of line if we didn’t say so.

Last August, Obama signed the Fair Sentencing Act.  Although it does have some significant drawbacks, such as actually increasing sentencing for some defendants, the main intent was to try to reduce the insane disparity in federal sentencing for crack cocaine and powder cocaine.

The problem was, this reduction in the sentencing guidelines was not retroactive.  It only applied to future cases.  People already in prison for crack — even though everyone now agrees their sentences are too long — would have to suck it up and stick it out.

But today, AG Holder testified before the US Sentencing Commission, and told them the new lower sentences should be applied retroactively.  ”As years of experience and study have shown, there is simply no just or logical reason why their punishments should be dramatically more severe than those of other cocaine offenders,” he said.

Yes.  He is, for once, right.

Of course, even when he’s right he can’t help being wrong.  Holder wouldn’t let the lower sentences be retroactive if the inmate happened to have a gun at the time of the crime.  Or if the inmate had a “significant” criminal history.  Apparently, crack really is something that should be sentenced more harshly if you’ve gotten caught possessing or selling it before.  There’s no internal logic here, no principle that supports this.  If crack crimes are not more serious than equivalent powder crimes, then what justifies enhancing crack but not powder sentences if these other factors exist?  Holder’s being disingenuous, trying to appease both the reformers and the “try to look tough on crime” legislators, instead of actually being true to his principles.  If he has any.

Still, although he’d be more correct to seek retroactive application across the board, he’s at least doing something right in seeking some retroactivity at all.  So here’s some polite golf applause for Eric Holder.

It’s rare that we agree with a NY Times editorial.  Yesterday, we came close.  In a blurb titled “Recidivism’s High Cost and a Way to Cut It,” the editors said one solution to the high cost of imprisoning repeat offenders would be to adopt what Oregon’s doing, in letting its parole officers use programs and other alternatives to jail for lesser violations.

Ooh, so close.

Two problems: One, most of those who return to prison aren’t coming back on a parole violation, they’re going in because they got convicted of a whole new crime.  Yes, far too many parolees get put back in for non-criminal stuff like failing to abide by arbitrary and asshole-ish conditions imposed by dickhead parole officers.  But this doesn’t account for much of the actual recidivism numbers.  So dealing with this isn’t going to make too big a dent in the repeat prison population.

Two, the people making the decision are still going to be the same parole boards, parole officers, and parole magistrates who are acting like assholes and dickheads in the first place.  (These are obscure legal terms of art, perhaps obscure to those who do not practice criminal law.  To any non-lawyers reading this, we believe the common expression would be something akin to “unthinking, tyrannical bullies.”)  The problem people are the ones who are so jaded by dealing with scumbag after scumbag that they are incapable of recognizing a deserving parolee when they see one; or they are so stupid that they are incapable of reasoned discretion and cling to rote practices like a drowning man clutching a lifeline; or they are such villains that they derive satisfaction from fucking people over; or they are so righteous that they believe they are doing the right thing in fucking people over.  Whichever variety you’re dealing with, they either abuse their discretion or fail to use their discretion in the first place.  So giving them more discretion isn’t going to solve anything.

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So okay, the NYT oversimplified, missed the real point, and offered a useless suggestion.  Who cares, that’s what they always do.  But this is The Criminal Lawyer, you’re saying to yourself.  What do we suggest?

The biggest problem is really out of the hands of the criminal justice system.  It’s people who are not deterred from committing additional crimes, and who are not rehabilitated by prison.  In other words, almost everyone who commits that second crime.

The vast majority of people who pass through the criminal justice system never come back.  Depending on the study, the number is something like 83% of people who get arrested for one thing or another never get arrested for anything again as long as they live.  It doesn’t matter whether it’s for smoking a joint on a park bench, or for a senseless murder.  The first time is the last time.  The fact of a prison sentence, and the length of a prison sentence, have absolutely nothing to do with why such people never offend again.  Do your own regression analysis, if you wish.  Incarceration is not a meaningful variable, and has absolutely nothing to do with why people do not reoffend.

Society does not get any general deterrence from any particular prison sentence.  Firstly, nobody knows about it.  It’s not as if the hundreds of sentences handed down every day in NYC alone are remotely known to the general population.  General deterrence comes not from specific sentences, but from a general perception that prison is something that happens to people who commit a crime.

Specific deterrence is irrelevant, because whether a person reoffends or not has nothing to do with the severity of the sentence imposed.  If you’ve got someone who’s in the 17% who keep coming back, you can keep upping the sentence each time he returns, and it’s not going to deter him from doing it again.

And anyone who thinks that prison actually rehabilitates people is invited to rejoin the rest of us in the real world.  You’re really missing out, come on back now.

None of this means that people cannot be rehabilitated.  On the contrary, there are proven methods of rehabilitation.  None of them involve prison, except perhaps as a threat to ensure compliance with the rehabilitation program.  Drug courts, personal interventions, religious transformations, programs that teach people how to actually live like a normal person and get a job and be responsible (and happier as a result), all of these things have been proven to work for certain kinds of people.  Everyone’s different, so there’s no one-size-fits-all solution, but for lots of people there really is a fix.  And prison isn’t it.

That’s because many re-offenders only do so because of their situation.  Maybe they commit crimes to feed a drug or gambling addiction, and they’ll stop if they can get on top of it.  Maybe they commit crimes because of a mental illness that can be treated.  Maybe they grew up and live in a community where their crimes are encouraged or enabled.  Maybe they just never learned the basics of life that would enable them to live a law-abiding one.  All of these things are fixable.

It must be recognized, however, that some people cannot be rehabilitated.  There really are thugs out there.  Those who, though they are human beings, are so damaged that they are incapable of being human.  Not psychotic, merely psychopaths.  Society’s rules just don’t apply.  Your life has no value to them.  They’ll commit crime because it’s what they want to do.  They are not deterred, except by fear for their own self.  They are not rehabilitated, ever.  For these people — and only for these people — prison makes sense.  To the extent they fear it, they are deterred from doing what they otherwise would freely choose to do.  (The rest of us are well-socialized enough to merely think about it, but never do it.)  At the very least, it keeps them off the street and prevents them from threatening the rest of us.

So for most people, no prison is required to get the outcome society wants (except perhaps as a threat for those who might not otherwise do what is necessary to rehabilitate).  And for the very small number for whom prison is necessary, the sentencing terms our laws now apply are irrelevant.  Rather than basing a prison term on the kind of crime committed, the term should instead be based on how long that person needs to be kept off the streets.  Depending on the person, it might be for months, or it might be for life.

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As a civilized society, we don’t like to admit it, but it’s a fact that some element of punishment is sheer retaliation.  You did something bad, so now something bad is going to happen to you.  Forget all the philosophical purposes of punishment like deterrence, rehabilitation, removal — even good old “eye for an eye” proportionate retribution.  We’re talking about simple retaliation here.  And it would be foolish to deny its existence.  In fact, as a sentencing factor, it accounts for most disparities in individual sentencing.

So perhaps it ought to be taken into account more openly.  More fairness in sentencing, and less unnecessary imprisonment, might result.

For example, we’ve represented clients for whom jail is really no big deal.  It’s not a social stigma, and can even be a source of standing.  They didn’t have the kinds of lives that would be destroyed by spending months or years behind bars.  We’ve even been told point-blank by some clients that they look on a middling piece of imprisonment as a kind of vacation — they get some time away from the stresses of the real world, they don’t have to do anything, everything’s taken care of for them, and when they come out they can reset and maybe even the problems they left behind have gone away in the meantime.

On the other hand, we represent a fair number of clients for whom even the briefest stint in jail is practically a life-ender.  Everything they’ve worked and striven for in their lives is over.  The social and professional stigma is complete, and unredeemable.  Their lives, as they know them, are over.  This is not an exaggeration.  It is a simple statement of fact.  Not only they suffer, but their innocent families, employees, and communities suffer hugely as well.

So depending on the individual, the amount of retaliation inherent in a given sentence is going to vary dramatically.  A 6-month prison sentence that would be a laughable joke for one person would be disastrous and soul-crushing for another.

Judges like to say “I’m not the one putting him in prison; you did it to yourself.”  And similarly to the families, employees and others, they say it’s the defendant and not the judge who’s doing it to them.  But that’s absurd.  Beyond absurd, it’s an unthinking self-rationalization that’s little more than a lie.  Judges with the discretion to impose something else are obviously the only ones deciding to impose prison instead.  So it’s not absurd to say that judges do a disservice to society when they put someone in jail for whom the retaliatory effect is disproportionate to the harm done.

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By now, it should be obvious what the criminal justice system can do to reduce repeat prison stays.  It can’t do anything about those who’d never offend again.  It can’t change the way people are reared (or more accurately, not reared) so that they are more likely to re-offend.  It can’t do anything about the economic and social pressures in certain communities that increase the chances (or virtually guarantee) re-offense.  But the system can create individualized programs that are suited to rehabilitate this particular offender.  And for those who must be removed, it can create individualized sentences that take into account the threat that this particular person poses to the rest of us.

The most significant change to our system, therefore, is to do away with mandatory sentencing.  Remove all mandatory minimum sentences.  Get rid of them.  (Sorry, Justice Thomas, but everyone else on the Court really is right to want to move in this direction.  The old-time sentences that varied based on the characteristics of the individual defendant and the individual offense may have been unpredictable, but to the extent they were unfair this is not what made them so.)

Mandatory minimums are the single greatest cause of unnecessary prison stays.  The vast majority of people in prison simply don’t need to be there, but the law requires it, so they’re there.  The law requires it because elected politicians like to look “tough on crime,” and so they impose such minimums and then ratchet them up over time.

But sentencing courts should be given the power to hear reasons why this particular defendant is one of those for whom prison is pointless, if not counterproductive.  And they should be given the discretion to sentence accordingly.

That’s really it.  Simple, no?

Tonight, we attended a panel discussion on federal sentencing that was actually worth commenting on. Usually, these things are either so basic or insubstantial as to be a waste of time. But this one had a few choice moments we’d thought we’d share with our readers.

The panelists included John Conyers (Chairman of the House judiciary committee), William Sessions (Chair of the U.S. Sentencing Commission and Chief Judge of the District of Vermont), Jonathan Wroblewski (policy director for the DOJ, among other things), Alan Vinegrad (former US Atty for the EDNY and now a white-collar partner at Covington), Tony Ricco (mainstay of the federal defense bar), and Rachel Barkow (NYU professor, didn’t speak much). It was moderated by Judge John Gleeson of the EDNY, and we recognized in the standing-room-only audience a number of distinguished jurists and counsel.

Everyone seems to agree that the Guidelines are in need of a major overhaul. As Judge Gleeson put it, “when even the prosecutors are saying that sentences are too severe… the sentences are too severe.”

But not everyone agrees on what changes ought to be made, how drastic the changes ought to be, or even what’s causing the problems in federal sentencing.

Here’s the take-away: Everyone knows what the right thing to do is. Judges want to do the right thing, regardless of what the Guidelines say. The DOJ forces its prosecutors to do what the Guidelines say, regardless of what they think is just. Congress is incapable of doing the right thing, in its efforts to pander and blame rather than solve. And the Sentencing Commission is afraid to be independent of Congress, preferring instead to make baby steps toward eventually maybe doing the right thing.

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“Unnecessary cruelty”

For as long as we’ve been practicing law, everyone has been complaining bitterly about the 100-1 disparity between crack and powder cocaine sentences under the Guidelines, but nobody’s done anything about it. And over the last year or two, there’s been a growing movement among federal judges to push back against the dumbfoundingly disproportionate sentences for those who merely look at child porn — most recently with the Second Circuit’s Dorvee ruling a couple of weeks ago, basically telling the District Courts that the Guidelines here are crazy and ought to be ignored. (See also the NY Times’ front-page piece on Judge Weinstein this weekend, discussing his “crusade” against the “unnecessary cruelty” of the law here.)

And for as long as we’ve been in the game, the bulk of federal criminal practice has been devoted to dealing with the Guidelines. Even in this post-Booker world, the Guidelines have a huge role in federal practice. An enormous chunk of advocacy is involved in challenging the government’s Guidelines calculation, and vying for a variance or at least a departure.

We’re very opinionated here. But we’re going to try to focus on reporting in this piece. After all, these are very distinguished panelists, who frankly know far more about the sentencing sausage factory than we do. So what did the panelists have to say?

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What judges think

Judge Gleeson brought some historical perspective. In 1986, when the Guidelines were first being drafted, the nation was in a panic about the crack epidemic. Amid all the horror stories the public was hearing, Congress passed a law with mandatory minimums and elevated maximum sentences for drug kingpins. 10-year mandatory minimums for trafficking bosses, and 5-40 years for middle management. Except that’s not the way it panned out.

The Guidelines were being written to reflect the national average sentences in the preceding years. But this law, with its mandatory minimums, screwed that whole idea. The Guidelines wound up having to be redrafted, to conform to this new legislation — can’t have a Guideline sentence that’s several times lower than the minimum set by statute.

And the “kingpin” law wound up applying to everyone, including low-level street schmucks. The sentencing wound up not taking into account one’s role in the organization, but merely the amount of drugs involved. So someone on the bottom rung of a drug sale could easily wind up getting the kingpin sentence. Especially if crack was being sold, where 10 grams would be punished as severely as a kilo of powder. Only 6% of defendants are actually bosses or managers, but the 94% who got picked up on the street — the “low-hanging fruit” — went to prison in greater numbers, and for far greater terms of incarceration.

Judge Gleeson pointed out that the whole purpose of the Sentencing Commission is to protect the law from the shifting political winds of Congress. But the winds blew anyway, and Congress rejected any attempts to make the Guidelines more reasonable, as the injustices became apparent. On the contrary, the prevailing winds only blow in one direction, resulting in ever-increasing sentences as elected officials pander to the latest crime scare. Congress wound up micromanaging the Commission, directing increases for the most obscure offenses, and even making its own amendments without involving the Commission at all.

At the end of the day, drug sentences are now 3 times what there were before the Guidelines were enacted, even though the offenses themselves are no more severe than before. After Congress shot down the Commission’s first proposal to equalize cocaine sentencing, the Commission has refused to take the lead, instead waiting for Congress to lead the way. The DOJ says the crack/powder sentences should be identical. The Senate proposed that the crack disparity be reduced from 100-to-1 down to 18-to-1. The House hasn’t acted at all.

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What Congress thinks

At this point, Rep. Conyers spoke. Like most career politicians in a setting like this, he spoke an awful lot without saying much. (We got a kick out of watching the visible signs of frustration among those in the audience, who felt the various digressions on congressional history, the health-care bill, war policy and the like to be a complete waste of time. Some of the gestures and gesticulations were chuckle-inducing. Conyers seems not to have noticed that he kept losing his audience.)

What he did say that was on point was fairly interesting, however. He said the House has held back on resolving the crack/powder disparity, not because they can’t see the problem for themselves, but because the Senate’s 18-1 bill sets a limit on whatever they can hope to get if the bill ever goes to conference. Fair enough. But he didn’t offer any explanations of why 18-1 seemed rational to the Senate in the first place.

He said that it’s the conservatives and the blue dog Democrats who are opposed to sentencing fairness. So a voice vote would never work. And a suspension would require a two-thirds majority, which can’t be gotten without the votes of those very conservatives and blue dogs. [As part of the conservative Republican end of the political spectrum, however, we’d have to say Conyers’ concern is misplaced. The Republican platform may be pro-death-penalty for certain violent crimes (though we ourselves are against capital punishment, as mentioned previously), but it also wants to get rid of mandatory minimums for nonviolent offenders, and to focus the drug laws back on the kingpins they were intended for.]

Whenever there is some horrific crime in the news, some congressman is going to get up on his hind legs and make a speech, demanding tougher sentencing, more micromanaging of the Guidelines, etc. That goes for politicos from either party. It’s typical pandering, irrational and emotional — exactly what the Sentencing Commission was supposed to insure against.

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What the Commission thinks

Chief Judge Sessions countered that the Sentencing Commission is not beholden to Congress. Yes, he admitted several times that the Commission works far more closely with Congress than with the other two branches of government. Yes, it works “incredibly closely” with Congress, as a matter of fact. But it would be a mistake to treat it as Congress’ lap dog. They’re proud of the fact that, since 1991, pretty much every new criminal law has sought to impose a mandatory minimum, and due to the Commission’s efforts most of those laws have wound up without one.

Unfortunately, the Sentencing Commission is not a big-government utopian agency of wise experts, acting on all kinds of studies from the social sciences. It doesn’t direct policy from an ivory tower built on the bedrock of hard data. It really is beholden to Congress in most important respects. The Commission makes an effort to respond to the concerns of all three branches of government, Sessions said, and they are in fact passing some amendments this year despite Congress. But he had to admit that, for the most part, the Commission responds mostly to the concerns of the legislature.

Sessions had a real problem with the Second Circuit’s move to disregard the child porn guidelines in particular, and the judiciary’s general move towards individual justice rather than compliance with the bright-line Guidelines scheme. Cases that tell judges to disregard congressional policy, he said, are not the best way to get Congress on board with the reforms that have to be made.

[We’d have to disagree here. How else is Congress going to realize what the nation wants? Congress short-sightedly, and incorrectly, assumes that everyone wants to ratchet up sentences. That being perceived as “tough on crime” is what gets votes. But what people want to be tough on is violent crime, against real victims, and maybe some extreme cases of massive economic crime against real people. Nobody wants symbolic measures that destroy lives in disproportionate retaliation for nonviolent offenses. The judiciary’s general rejection of such measures is precisely what the judiciary is there for in the first place, at least since Marbury v. Madison -- to check and balance the excesses of the legislature and the executive. It’s not the judiciary’s job to suck up to Congress, and it’s telling that Sessions seems to think so.]

Sessions reported on a recent massive survey of federal judges, which found that 75% believe that the system as it exists is “the best available” (whatever that means), that the Guidelines are a part of the culture of criminal procedure now (not exactly a shocker), and Booker is being followed. Excepting crack sentences, only 30% thought that drug sentences were too high (everyone seems to think crack is sentenced too harshly). Everyone agrees that mere possession of child porn, rather than creating or distributing it, is punished too severely.

Judges say they need more discretion, particularly at the lower levels of the Guidelines. They want alternatives to incarceration, such as treatment programs, just like the ones the states have been using with great success for 20 years or so.

The Commission also figured out that the criminal history points don’t really reflect the realities of recidivism. They add 2 points for an offense committed within 2 years of release from prison, but there’s no correlation between that and the incorrigibility that’s supposed to be penalized here. So they’re getting rid of that particular calculation later this year. That should result in an average reduction of one year off a whole lot of people’s sentences.

Another point of contention has been whether courts can consider individual characteristics of the offender, in granting a more lenient sentence. Congress put the ixnay on that back in 1987, instructing the Commission to discourage 11 particular factors. Earlier this year, the Commission reinstated 5 of these factors. Courts are now allowed to take into account, once again, such common-sense factors as the age of the offender, his physical condition, his mental health, his emotional condition, and any military service. If any of these are relevant, the court is now permitted to take a downward departure based on such considerations. Judges had wanted to depart, but felt they couldn’t, because the Guidelines said they couldn’t. Now the language has been changed from saying these are categorically “not relevant,” to saying they “may be relevant.”

Also, Zones B and C have been expanded by one level, to give more discretion to judges.

And the Commission is starting to consider the beginnings of drug treatment, and treatment for those with mental health problems. Addictions and disorders that contributed to the offense may perhaps at some time in the future be grounds for a non-prison sentence to deal with the underlying problem instead. [Again, this has been done in the states for a generation already. When we first started with the NYC Special Narcotics Prosecutor’s office in 1997, their DTAP program was well under way, which involved 18 months of inpatient treatment, and 18 months of outpatient treatment, involving getting one’s GED, getting a job, moving out of the crime zone if necessary, getting a bank account, amassing a couple grand in savings, and otherwise figuring out how to get ahead without drugs. Had a 70% success rate, if we recall correctly. We remember being a very young lawyer with grownups sobbing with gratitude at our desk, thanking us for giving them the opportunity. Now it’s systematic, institutionalized in the state’s drug courts. All kinds of states have similar success stories. Why the feds are only now beginning to explore the possibility of maybe someday trying something like that themselves is beyond us.]

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What the Department of Justice thinks

The DOJ was represented by Jonathan Wroblewski, a pretty decent guy. But we have to say we had problems with his approach, as well.

He said the saddest thing is the political dysfunction preventing any progress on the crack/powder issue. The political dialog has changed dramatically, so that everyone feels like they have to argue from extremes, and point fingers at the other party. [We’d say this has been politics as usual since the founding of our republic, but we’re only a historian in our spare time, so what do we know.] But it would take near-unanimity of representatives from both parties to get the change that is needed. And that’s not going to happen so long as people keep demonizing the other side.

Wroblewski said that the constant ratcheting-up of federal sentencing is relieved in practice by the “safety valve” — referring to USSG § 5C1.2, which allows a reduction below mandatory minimums if the defendant has minimal criminal history, and comes clean with everything he knows about the offense and his fellow conspirators. [Oddly enough, in practice this exposes defendants to a whole lot of risk, and gives the feds all kinds of ammo to go after them and their compatriots; and further exposes defendants to prosecution for obstruction if they don’t disclose everything exactly right. It’s not something to be attempted lightly. We think of it less as a “safety valve” than as a “booby trap” or as “cooperation without confidentiality.”]

He participated in a working group on sentencing formed by AG Holder, speaking with all kinds of judges, prosecutors, defense lawyers, victims groups, visiting prisons, etc. During his time with that group, he’d formulated seven observations:

1) The federal sentencing system is fragmenting into two separate systems. One set of judges are following the Guidelines, and another set has lost confidence in the Guidelines and no longer feel any need to follow them.

2) The Guidelines and mandatory minimums still have an important role in our system.

3) Nationwide, the level of sentencing overall hasn’t really changed. It has here in major metropolitan areas [which we’d say are more likely to gain perspective sooner, because the sheer volume of cases accelerates their institutional experience dramatically], but nationwide on average it hasn’t. What he’s seen instead is an increase in sentencing disparities, which is one of the things the Guidelines were supposed to prevent.

4) The federal prison population is growing exponentially. Meanwhile, crime rates are down, in part because more criminals are behind bars. [We have to agree with this conclusion, but wish we didn’t have to lock up so many who aren’t repeat or violent offenders, just to keep the ones who are off the streets.]

5) There is a non-partisan imperative to improve the re-entry of prisoners into society.

6) Across the board, no matter who you speak to, there is little appetite for an overhaul of the system. It would involve too much uncertainty, strain and change. But at the same time, it’s obvious that the system needs to be overhauled.

7) There’s been a lot of litigation, post-Booker, but a lot of it has been needless. [We’re not sure of what he meant by that, frankly.]

In response, the DOJ is now working toward enacting a new crack/powder law, creating initiatives to improve prisoner re-entry, changing the DOJ’s charging policy (so that AUSAs aren’t compelled to charge the highest offense with the most severe sentence, as had been required under Ashcroft), and improving data collection so as to catch injustice and hopefully nip it in the bud.

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A final word

There were several intriguing comments from the other panelists, and also some good questions from the audience. But we’ll leave you with this one bit about prosecutorial discretion.

As you know, state prosecutors (at least those in the better offices) have the discretion to decide for themselves what crimes to charge, what pleas to offer, and what sentences to offer with those pleas. They are expected to use their judgment to act in the interests of justice. They of course are guided by the penal laws, by their supervisors, by office policies and by community standards, but in the end the decision is up to the individual prosecutor.

This is important. Prosecutors are given an enormous amount of power. With great power must come the discretion to use it wisely and justly. Otherwise, it’s just a big freaking hammer to be used without regard to the size of the nail being hit. And discretion is given to be used. Failing, or refusing, to exercise discretion is an abuse of discretion. It’s flatly unethical.

And yet that is precisely the policy of the DOJ when it comes to sentencing. Individual prosecutors, in the words of Mr. Wroblewski, cannot be allowed to decide for themselves what the appropriate outcome ought to be.

DOJ prosecutors have to seek the maximum charge, and pursue the sentence prescribed by the Guidelines for that charge. Once the essential facts are established, there is no wiggle room. Defense counsel can argue the §3553(a) factors, but not the government. Defense counsel can seek a variance, but not the government. (Though later this year there may be some more leeway for the government to seek a variance in certain cases, watch this space for updates.)

The perceived need for consistent application of the law trumps individual justice. The perceived need to carry out the stated policy of the legislature — no matter how irrational it may be, or how inappropriate to this case — trumps individual justice. Bright-line rules take away discretion in favor of uniformity and ease of application, but they also erase the iffy areas that aren’t so clear-cut, or weren’t necessarily intended, resulting in real injustice on the individual level. That’s the entire reason why discretion is necessary, and given, in the first place.

But the DOJ can’t be having with that. After Booker, the idea was floated that the DOJ ought to write up its own guidelines. Just as the Guidelines are now advice, and the defense bar would be giving its advice to the court, the DOJ wanted to have its own policy to advise the court. But having an office policy would lead to each district having its own office policies. The Southern District of New York and the Middle District of Georgia could conceivably have different office policies. That would be chaos. Think how much more disparity there would be if individual prosecutors were able to exercise their own judgment about the appropriate outcome for a case/

To that, we have to repeat that failure to exercise discretion — whether by choice or because the DOJ forbade it — is an abuse of that discretion. It’s unethical. It defeats the whole purpose of granting that discretion. Which defeats the whole purpose of granting such awesome powers to the prosecution.

So if the DOJ (or any other prosecutor’s office, for that matter) is going to preclude its prosecutors from exercising their discretion, then the awesome powers which that discretion is meant to balance must also be taken away. Failing that, there is nothing left but enormous governmental power over the individual without the necessary checks for individual justice.

And that’s just not right.

The Supreme Court today decided Graham v. Florida (opinion here), ruling 6-3 that it violates the Eighth Amendment’s Cruel and Unusual Punishment clause to sentence a juvenile offender to life in prison without parole, for a non-homicide crime. This is a hugely significant decision, creating a new precedent in sentencing law (and also forcing Florida to make some law of its own, as it did away with parole a while back).

(Companion case Sullivan v. Florida was dismissed, as certiorari was improvidently granted in light of the Graham decision.)

The opinions are a stirring read. Chief Justice Roberts, in the majority, was in strong opposition against his fellow conservatives Alito, Thomas and Scalia, who dissented. During oral argument, it was clear to observers that Roberts wanted to bring them into the fold and get a unanimous decision that youth deserves a second chance at some point.

Roberts couldn’t get them to agree, which must have been a disappointment to the Chief, who openly aspires to as much unanimity and consensus as possible on his Court. It moved him enough to write a scathing concurring opinion, taking to task the arguments of his conservative brethren.

Kennedy doesn’t let any of the conflict or disappointment show in his majority opinion, which is a balanced and philosophical treatise of the evolution of Cruel and Unusual Punishment law, and well worth reading.

(Had it been up to us, we’d have preferred for the Chief to write an opinion that stays above the fray, and leave it to others to write the criticisms of the dissents. That would free it of any taint of personal feeling.)

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This was really an unexplored territory in American jurisprudence. The Supreme Court has long carved out exceptional scrutiny for capital-punishment cases, limiting when and how and to whom the death penalty can be applied. The Court has created a number of specific rules that can be applied in general, to every capital case.

But it hasn’t really done that with other severe punishments of lengthy or lifetime incarceration. All it’s said is that sentences shouldn’t be “grossly disproportionate” to the crime, without setting any general standards of what counts. Without any rules to follow, courts had to make this determination on a case-by-case basis.

This new rule is the first one of general applicability in a non-capital case. It is significant in and of itself, and also as a precedent for future similar rulings.

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Terrance Graham was in his mid-teens when he and a group of friends went to rob a barbecue restaurant in Jacksonville. One of the kids hit the manager with a steel bar, and Graham ran away. Arrested and charged as an adult, he got 9 months in jail with 3 years of probation.

After he got out, Graham was arrested again for home-invasion robbery, and violating probation. Now 17, he pled guilty. The sentencing judge lectured him on his incorrigibility, said there’s nothing more that can be done to rehabilitate the boy, and sentenced him to life in prison without parole. “We can’t help you any further,” the judge said. He’d had a good family and community support, but he’d thrown away his second chance, so now “I have to start focusing on the community and trying to protect the community from your actions.”

-=-=-=-=-

Kennedy reminded us that the definition of “cruel and unusual” evolves as society matures. He pointed out the dichotomy between death penalty and other cases, and explored the meaning and history of proportionality jurisprudence.

So then he looked to see whether there was a national consensus here, as expressed by the people’s elected state legislatures. Six states forbid life without parole for juveniles. Thirty-seven more states as well as D.C. impose restrictions on it. Furthermore, out of all the juveniles nationwide doing non-homicide time, only 129 are doing life without parole, 77 of whom are in Florida. The others are in a handful of other states. So it’s rarely permitted in the first place, and rarely done in the second place. That sure sounded like a consensus to the majority, no matter what Florida might have argued to the contrary.

That consensus isn’t the be-all and end-all, however, of whether a punishment is cruel and unusual. It’s not up to the community, but up to the judiciary.

Kennedy next looked at the policy consideration of whether life imprisonment here serves any legitimate penological goals. This is where the whole “juveniles are less culpable than grownups” argument comes into play — a policy that a lot of people thought would be the biggest part of this case. Was the Court going to mess with our system of treating kids more leniently? Was there any reason to change the presumption that,

because juveniles have lessened culpability, they are less deserving of the most severe punishments.

As compared to adults, juveniles have a “‘lack of maturity and an underdeveloped sense of responsibility’”; they “are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure”; and their characters are “not as well formed.”

These salient characteristics mean that “[i]t is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.”

Accordingly, “juvenile offenders cannot with reliability be classified among the worst offenders.”

A juvenile is not absolved of responsibility for his actions, but his transgression “is not as morally reprehensible as that of an adult.”

Kennedy readily found that there was no reason to reconsider these presumptions. So juvenile advocates can breathe a sigh of relief — Roper isn’t going to be overruled any time soon.

He then explained once again that murder really is different. Even the worst of the worst crimes that do not involve killing are not in the same category of bad as murder. Someone who doesn’t intend to kill just doesn’t have the same culpability.

So a juvenile already has diminished culpability. And if he didn’t try to kill, then he has “twice diminished moral culpability.”

Life without parole, Kennedy said, is the most severe punishment we have, short of death. And it’s not much less severe, as the lifer’s freedom is taken away forever. There is no hope. No chance of redemption, rehabilitation, reward for good behavior. It’s irrevocable.

That’s harsh enough for an adult, but it’s doubly harsh for a kid who’s got more decades of life ahead of him. It’s twice the punishment, if you think about it.

-=-=-=-=-

Kennedy then goes into a nice discussion of the purposes of punishment. There are plenty of purposes out there, including retaliation and vengeance and removal from the community. But the four that he recognizes as being legitimate in this day and age are Retribution, Deterrence, Incapacitation, and Rehabilitation.

Rehabilitation is off the table, of course, because there’s no hope of redemption in life without parole.

Retribution is an expression of the community’s moral outrage, or an attempt to balance the wrong that was done. In the case of a minor, that moral outrage is less, and the wrong doesn’t need as much punishment to balance things out. And it’s even less when the crime doesn’t involve homicide. So this isn’t served by life without parole, either.

You’d think that Deterrence would still be on the table, but no. The same characteristics that make kids less culpable make them less susceptible to deterrence. They don’t have the maturity to consider consequences as adults do.

Well, at least Incapacitation is served here. Not much could be more incapacitating than locking ‘em up and throwing away the key. But again Kennedy says no. You can’t say a kid is never going to change, that he’s going to be a repeat offender if you let him out. Kids are too malleable. “Incorrigibility is inconsistent with youth.”

[We’ve defended juveniles and adults for some time now, and with all due respect to Justice Kennedy, we’d have to disagree with him here. Sure, he’s right for the most part, but there really are kids who are truly incorrible. There really are some teens who never got socialized, and now it’s too late. They do not see you as a human being, and never will. They’ll hurt you or kill you, and never give you another thought as long as they live. They’re rare, but it’s foolish to pretend that incorrigibility is inconsistent with youth. It’s merely less likely. (/rant)]

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So the Court decided to impose a categorical rule here, that life in prison without parole is unconstitutional for juveniles who didn’t kill someone.

Kennedy admits that “categorical rules tend to be imperfect,” but nevertheless concludes that “one is necessary here.” Can’t leave it up to the states, because we already did that and look at the dog’s breakfast Florida came up with. Can’t let the courts decide this case-by-case, because brutal cases will override the sentencing court’s ability to mitigate for youth, and juveniles are notorious for not being mistrustful of adults and not being able to work effectively with counsel, so there’s a high risk of the court getting it wrong.

And finally, this rule would give every juvenile offender the second chance that juvenile justice is designed for in the first place. Life without parole offers no second chances, defeating the whole point of treating kids differently in court.

-=-=-=-=-

Well hell, son, that’s all you had to say.

The Supreme Court is back in session, well rested from a three-week vacation. (We don’t remember the last time we took three weeks off. Wonder what that must be like.) They opened the day this morning with two interesting per curiam decisions.

The first, Wilkins v. Gaddy, is about what counts as “excessive force” against a prisoner. There was some confusion among the circuits here.

This was a case coming out of North Carolina. A prisoner named Wilkins asked a prison guard for a grievance form. The guard, Gaddy, lost his temper. Wilkins claims that Gaddy threw him to the ground and beat him up, until another officer came and pulled him off. At the end of the day, though, his only injury was a bruised heel and some lingering pain.

The Fourth Circuit said that didn’t count as “excessive force,” because there wasn’t much injury. The main case on point was Hudson v. McMillian, 503 U.S. 1 (1992), which the Fourth Circuit had been interpreting to mean that the prisoner’s injuries had to be more than de minimis. And a bruise on your heel is about as de minimis as it gets.

The Supreme Court reversed, saying that’s not at all what Hudson was saying. Calling the Fourth’s reading of that case “strained,” the Supremes clarified the rule in no uncertain terms: the focus is not on what happened to the prisoner, but on what the corrections officer did.

The issue is not how significant the injuries were, but whether the correction officer’s force was “nontrivial,” and “was applied maliciously and sadistically to cause harm,” rather than as part of “a good-faith effort to maintain or restore discipline.”

So, just because a prisoner got hurt, that doesn’t mean he was subjected to cruel and unusual punishment. People can get hurt for other reasons; that makes sense. What matters is whether he was assaulted, subjected to unjustifiable ill treatment. The extent of injury doesn’t have anything to do with whether his rights were violated in the first place — they merely go to “the damages he may recover.”

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The second case decided today, Thaler v. Haynes, is a Batson case out of Texas.

This was a death penalty case, so the stakes were high. There’d be some pressure on everyone involved to do it right. But the criminal law being what it is, things went weird from the get-go.

When the attorneys questioned potential jurors during voir dire, they were in front of Judge Harper. But when they sat down to exercise their peremptories, they were in front of a different judge, Judge Wallace, who hadn’t been there for the questioning. An unnecessary wrinkle that only caused problems, as it turned out.

Because the prosecutor struck a Black woman named Owens, and the defense cried Batson.

(Batson, for those of you playing along at home, is a case that says race cannot be a valid basis for a peremptory challenge, which ordinarily can be for any reason. It’s a strange decision, because it’s not written to protect the rights of the individual defendant. It doesn’t matter if the people being excluded are of the same race as the defendant. The prosecutor can raise a Batson challenge to defense peremptories as well. The reasoning is that it’s not the defendant’s right’s being violated, but the rights of potential jurors. Seriously. We told you it’s a strange one. But we use it as if it somehow were protecting the defendant’s rights, perhaps to a representative venire or some such.)

After crying foul, the defense had to make out a prima facie case that the prosecutor was excluding Black people. They seem to have done so, and so then the burden shifted to the prosecutor to give an explanation for striking Owens that had nothing to do with race.

The prosecutor said Owens’ demeanor and body language indicated that she wasn’t taking the proceedings seriously, and that she wouldn’t be neutral when considering the death penalty.

The defense argued that there was no way Judge Wallace could assess that explanation, because he wasn’t there to see the jurors’ demeanors himself during questioning.

Judge Wallace ruled that there was no Batson violation, the case went to trial, Mr. Haynes was convicted, and he was sentenced to death.

Haynes appealed on the Batson issue, lost, and the Supremed denied cert. He lost a state habeas petition, and then went for federal habeas. The District Court said no, but then the Fifth Circuit found otherwise:

An appellate court applying Batson arguably should find clear error when the record reflects that the trial court was not able to verify the aspect of the juror’s demeanor upon which the prosecutor based his or her peremptory challenge.

So the Fifth Circuit said no court could ever adjudicate this issue here, because all anyone has is the paper record of Owens’ questioning, and there’s no record of her demeanor. So they ordered a new trial, a complete do-over.

This morning, the Supreme Court reversed. The two cases cited by the Fifth Circuit, Batson and Snyder v. Kentucky, nowhere say that a judge can’t accept a demeanor-based explanation unless that same judge was also a witness to the demeanor. Batson said the judge has to consider all possible explanatory factors. Snyder dealt with a peremptory challenge where the prosecutor gave two explanations, one of which was demeanor; the judge didn’t explain why he overruled the objection; the Supreme Court then held that the demeanor explanation could have been enough, but there’s no way to know whether the judge relied on it or on the other one, which wasn’t good enough.

In Snyder, the Court even specifically said that, although the trial judge’s observations are of great importance when the explanation is based on demeanor, they’re not necessary — as when the judge doesn’t remember that particular juror’s demeanor.

So today, the Supremes clarified once and for all that there is no requirement that the trial judge had to have observed the juror’s demeanor, when that’s the explanation given after a Batson challenge.

This is going to give prosecutors a little more wiggle room to just make up some bullshit story when they have a Batson challenge, but only in cases where the judge got replaced halfway through (impossibly rare), or where they’re confident that the judge wasn’t paying attention (sadly not rare at all). We’d like to say that no prosecutor would ever do something like that, but we’ve seen even worse, so this isn’t exactly heartening.

Last week, we argued that capital punishment as practiced in America does not work, because it takes too long.

The appellate process can take decades, during which time the convict remains on death row, the victims get no closure, and any deterrent effect gets completely washed out. In fact, the huge gap between the crime and the punishment, and the uncertainty as to whether execution would even result, adds even more injustice into the system while imposing enormous unnecessary societal costs.

Our point was not that appeals should be limited — on the contrary, they are never more necessary. Our point was simply that the process takes so long that it nullifies the whole reason for capital punishment in the first place.

We did not explore, however, whether this delay ought to count as “cruel and unusual punishment” in violation of the Eighth Amendment. We figured we’d leave that one for another day.

Well, today’s the day. In dueling opinions yesterday, Justices Stevens and Thomas went head-to-head over just that issue. We think they’re both right, and they’re both wrong.

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The case is Cecil C. Johnson v. Phil Bredesen, Governor of Tennessee, et al., No. 09-7839. Stevens’ opinion can be found here, and Thomas’ can be found here.

Cecil Johnson was executed yesterday, after the Supreme Court denied cert.

In July 1980, a man robbed a convenience store in Nashville. During the robbery, the thief brutally murdered the store owner’s 12-year-old son, and two other men who were sitting in a taxi.

A couple of days later, Cecil Johnson’s father turned him in. There was no physical evidence that tied him to the crime. He was convicted and sentenced to death in 1981.

For the next 29 years, Johnson plodded through the capital appeals process, persistently maintaining his innocence.

In 1992, Tennessee for the first time gave him access to evidence that might have undermined key testimony against him.

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Justice Stevens argues that this 11-year delay, before Tennessee finally made that disclosure, is a state-caused delay that counts as “unacceptably cruel.”

Thomas replies that it is pure chutzpah for a convict to file appeal after endless appeal, and then claim that the resulting delay violated his rights. He caused the delay, not the government.

But they’re both wrong. The delay wasn’t caused by the government in the way Stevens says, and that only covered the first of three decades anyway. It doesn’t affect the other two decades that this case meandered through the courts. And the delay wasn’t caused by Johnson in the way Thomas says. It’s not Johnson’s fault that the courts took so damned long.

So if the government wasn’t to blame as Stevens argued, and Johnson wasn’t to blame as Thomas argued, then who is to blame?

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It is the procedural setup itself that is to blame. We cannot blame a convict for seeking review, to ensure that he was properly convicted and sentenced, and to ensure that the government did not abuse its power and violate his rights. Far from it — we insist on it. Ensuring that the government did it right for this defendant helps protect all of us, and Americans want it that way.

But we can blame the delays that are built into the system’s procedural rules. There is no reason why it should take years to get from a challenged ruling to an appellate decision on that ruling. The only reason why it does take years is because the procedural rules allow it. And human nature being what it is, it is hardly surprising that lawyers and judges will take all the time they are permitted to argue and decide matters of life and death.

Some amount of delay is reasonable, of course — it would be equally unjust to impose time limits that are too short to permit thoughtful argument and careful analysis. But even with longer than usual time limits, there is no reason why state appeals couldn’t be exhausted within a year of sentencing, and federal challenges exhausted within another year. Two years, not twenty or thirty.

(Think this way: Give the defendant 30 days after sentence to file a notice of appeal, then another 60 to file his brief. 90 days is more than enough time to do the work. Give the prosecution a generous 60 days to reply. Take 30 days to prepare for oral argument, and then give the judges another 30 days to noodle it through and make a decision. That’s 210 days, and the first appeal is over. Subsequent appeals are going to go over the same ground, so time limits can be shorter now. Say another 30 days for the defendant to announce he’s taking it to the state’s supreme court. Then 30 days to brief it, 30 days for the prosecution to brief it, 30 days to prepare for oral argument, and 30 days to reach a decision. That’s 360 days. One year. Federal appeals and habeas shouldn’t take more than one more year. And we’re done.)

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Okay, so the delay is preventable. It’s caused by government rule-making. And the rules can be changed to protect the defendant’s interest in speedy resolution while continuing to protect his interest in thorough vetting of his conviction.

But does that make this delay “cruel and unusual punishment” for Eighth Amendment purposes? Probably not.

Think about it. All that’s happening to the defendant during this delay is that he’s being incarcerated. In a world without capital punishment, he’d be in the same position. He’d still be incarcerated, while going through the same appellate process that every other inmate goes through. The same process, and the same incarceration, that clearly does not violate ordinary convicts’ Eighth Amendment rights.

So no, the appellate delay is not cruel and unusual. But it still totally defeats the purpose of capital punishment in the first place, and for that simple policy reason the death penalty should be banned until such time as the system works out a way to complete the appellate process soon enough and consistently enough to make it worthwhile.

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There are other problems with Stevens’ and Thomas’ arguments. Stevens, for example, is about to retire after a long tenure on the bench, and recent years have seen him going all-out to make a legacy for himself. He is adamantly opposed to the death penalty, and will make any argument against it. As a result, he winds up trying to have it both ways, as Thomas unkindly points out — decrying both the length of the appellate process, as well as the perversity of carrying out executions before every appeal has been exhausted.

Thomas, meanwhile, flatly ignores the interests of justice, and gets hung up on whether the technical procedural requirements were satisfied. He forgets that the procedures are there to serve the interests of justice, and not the other way around. The rules are there to help ensure that defendants’ rights are protected, but the rules are not the only safeguard. The mere fact that the rules were satisfied does not necessarily mean that the system worked properly. Judges — particularly Supreme Court justices — need to be able to step back and determine whether this individual’s rights really were protected, and whether society’s policy interests were advanced.

Without much media fanfare, the Supreme Court has already decided two capital-punishment cases this month.

The first, Bobby v. Van Hook, came down on the 9th, and dealt with a case from early 1985. Nearly 25 years ago, Van Hook went looking for someone to rob, trolled a Cincinnati gay bar, and seduced a guy he met there. The victim invited Van Hook to his apartment, where Van Hook got him into “a vulnerable position.” Then Van Hook strangled his victim till he was unconscious, killed him with a kitchen knife, and mutilated his body, before taking off with his victim’s valuables. Van Hook later confessed, and was sentenced to death.

His appeals lasted for nine years, all of which were denied. He then spent the next 14 years litigating a single federal habeas petition. First, he unsuccessfully challenged the constitutionality of his confession, losing those arguments all the way up to a denial of certiorari by the Supremes in 2007. Then he tried a new argument, that he’d gotten ineffective assistance of counsel at sentencing, because all the work they had done wasn’t enough. The Sixth Circuit said his sentence should be reconsidered under new standards that had arisen 18 years after the fact. Ohio appealed, and the Supreme Court said you can’t apply these new standards retroactively like that. Van Hook argued that his counsel was ineffective under the standards at the time, anyway, to which the Supremes replied: “He is wrong.”

The Sixth Circuit being reversed, Robert Van Hook is now once again back in the queue for execution, nearly a quarter of a century later.

The second case decided was Wong v. Belmontes, which came out on the 16th. This case started way back in 1981, when Fernando Belmontes bludgeoned Steacy McConnell about 20 times with a steel weightlifting bar. She fought back desperately, to try to save herself, but ultimately Belmontes succeeded in killing her, so he could steal her stereo. He sold it for $100, which he spent on beer and drugs for that evening. He was convicted in California and sentenced to death.

His appeals went back and forth, and he lost. He tried to get federal habeas relief, but the District Court wouldn’t go for it. He appealed that, and the nothing-if-not-consistent Ninth Circuit bent over backwards to find instructional error, but the Supreme Court slapped that down in 2006. The Ninth Circuit tried again, this time finding ineffective assistance of counsel at sentencing. In its ruling this month, the Supreme Court pointed out not only how much work went into the defense case at sentencing, but also how wise and skillful it had been. “If this counsel couldn’t make it work,” the Court seems to say, “then nobody could.” You just can’t mitigate away a case where the victim had obviously suffered so needlessly and brutally.

So now, the Ninth Circuit is reversed, and Fernando Belmontes is back on the capital-punishment track 28 years after the crime.

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It being close to Thanksgiving, these decisions remind us of one of the first cases we ever worked on, back when we labored at all hours over Thanksgiving 1995 with the famed Carter Phillips, trying to prevent the execution of a retarded man, Walter Correll. Especially in light of the Supreme Court’s turnaround in the 2002 Atkins v. Virginia decision, ruling that executing the mentally retarded is a violation of the Eighth Amendment, we always get a little gloomy when we think back on that case.

But these decisions also remind us that, Republican though we may be, we remain firmly opposed to the death penalty. Not because it’s inherently cruel or inappropriate, but because it takes so damn long to carry out. The way the death penalty works in this country results in real injustice, harms society, and just makes things worse.

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Look at the graph we stuck up there at the top of this post. We made that graph based on data freely available from the United States Department of Justice, Office of Justice Programs, Bureau of Justice Statistics. You can see the raw data here.

That chart shows the average elapsed time, from sentence to execution, for each year. This is the average, and as the recent cases attest, actual times can be much much longer. But on average, the wait has gone from 51 months (4-1/4 years), to 153 months (12-3/4 years). That is an insane delay!

Elsewhere in the statistics, we see that the average inmate on death row right now has been waiting for 141 months, or about 11-3/4 years.

That’s a long time, in anyone’s book.

Now don’t get us wrong — we’re glad of the opportunity this affords us to find evidence of actual innocence, DNA evidence, or other means to exonerate the truly innocent. We’re not advocating for speedier executions, here. It takes this long because that’s just how long it takes. Our system is set up to give a lot of opportunity to review death sentences before they’re carried out. There is no appeal after execution, so society wants to make sure that everything was done right, that the convict has been afforded every procedural and constitutional protection that our jurisprudence has devised. And it just takes a long time to do that.

Our point is that the death penalty is improper (among perhaps other reasons) because this necessary delay makes it counterproductive.

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Why do we punish people in the first place? Punishment is when the awesome might of the government is brought to bear on an individual, taking away rights, liberties, property, and even his life. Why do we do that?

We do that because we’ve deemed some actions so harmful to society that, to protect itself, society has to impose this harm. But that begs the question. It’s more of a definition of “what is a crime” than “why do we punish, to begin with.”

We punish because, over history, societies have discovered that it works. At some instinctive level, you get retaliation. Someone hits you, so you hit them back without thinking. It’s a primal urge, not a civilized one, but it would be foolish to pretend that society does not have its own primal urges. We don’t punish strictly to hit back at those who would hurt us, not consciously perhaps, but it is part of the reason why.

A more civilized reason is deterrence. It’s like spanking a child — the criminal associates the punishment with the crime, and decides not to do that any more. And if the spanking is public and seen by others, then others will also realize that this could happen to them, and they won’t do it either.

Deterrence only works, of course, if the punishment is close enough in time to the offense to have a psychological effect. If you spank a kid for something he did three weeks ago, the only psychological message you’re sending is that you’re unfair and cruel, and thereby weakening your own authority.

Deterrence only works if the punishment is connected to the crime. If you spank a kid and he has no idea why you’re spanking him, you’re not deterring anything. All you’re doing is demonstrating that you are arbitrary and unjust. The kid doesn’t know what to expect from you, and will grow to fear and despise you.

General deterrence of other potential criminals only works if the punishment is known, in addition to being close in time and tied to the offense. If people don’t know that it happened, then there is zero deterrent effect from any particular offense.

Perception then, as in so much of life, is everything. You want the system set up in such a way as to create the impression that sentences are just and fair, but you also want the perception that sentences are also going to be imposed. That, if you commit this offense, that punishment is actually going to happen.

Ideally, a utilitarian and a social idealist might even agree that the best way to do this would be to create the perception that sentences are speedily and fairly meted out, without going to all the expense and social harm of actually imposing them.

The flip side of that would be the opposite of ideal, then. And the flip side is exactly what we’ve got.

In our present system, capital punishment is not imposed close in time to the offense. It takes a decade or two before it is carried out. That’s like spanking a kid three weeks later. Far from having any deterrent effect, it undermines faith in justice and weakens the law’s authority.

As practiced, capital punishment is not connected to the crime. It’s almost random. Some horrific murders get the death penalty, others don’t. The reasons for the variety are not obvious or predictable. Unpredictability = no deterrent effect.

And public perception? After all the randomness and delay, there may be a perception that you could get the chair for a given crime, but nobody really thinks you will get the chair. Folks just don’t have an experience of the death penalty as being imposed consistently enough that we simply understand, deep down at a visceral level, that a given crime is likely to result in one’s own death. At best, public perception is a vague theoretical possibility. At worst, and what is more likely, is the perception that the death penalty is so rarely imposed, and only after such an interminable (ha) delay, that it’s really not a factor worth considering in the first place.

(Of course it goes without saying that no punishment can have a deterrent effect on crimes of passion, where no thought went into the crime. But those kinds of crimes tend not to be death-penalty cases, so that argument isn’t really applicable here.)

Another purpose of punishment is rehabilitation, but it’s hard to get one’s act together after one is dead, so that one is out the window.

The only remaining purpose of punishment is removal — getting this threat to public safety off the streets.

Now this one has some promise. Execution certainly removes the offender from our midst. So does exile, though, without all the mess and expense (though dumping our worst threats on someone else could create bigger problems). Life without parole does the same job, though at theoretically great cost — 75% of all death-penalty inmates were under 35 years old when they went in (see more statistics), so they’ve got lots of decades of feeding, sheltering, guarding, clothing, counseling, treating, educating, etc. to pay for.

Unfortunately, as practiced, capital punishment is just a more expensive form of life without parole. At some point, an ordinary prisoner is going to run out of appeals, but the capital inmate doesn’t. And the capital appeals take priority over other judicial needs, while costing the system and everyone involved a lot more in time and resources. By the time someone actually gets executed, all the various costs involved more than cover the costs of a life sentence.

So if removal is the only concern, then life without parole would be the way to go. You don’t get any extra removal from execution. All you get is increased tax burdens, significant extra burdens on the judicial system, loss of enormous amounts of time and money all around, and the intangible losses from harm to the system’s perception and reputation and authority.

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So, speaking as a fairly conservative Republican here, we just don’t see how capital punishment as practiced in America today makes the least bit of sense. It accomplishes little, at enormous unnecessary societal cost.

That’s not the message the Supreme Court probably intended to send with these two cases this month, but that’s the message we heard loud and clear.