Sentencing Law and Policy

Two interesting reviews of the (in)application of Graham and MIller in two states

In my upper-level sentencing course, we are now discussing the past, present and future of Eighth Amendment jurisprudence placing limits on the imposition of prison terms.  Of course, this discussion now culminates in a review of the Supreme Court's recent work in Graham v. Florida and Miller v. Alabama and their continuing fallout.  Conveniently, just this past weekend, two different newspapers in two different states published these two articles on how that fallout is playing out: 

• From Jacksonville.com here about developments in Florida, "No Second Chance: Why juvenile offenders stay locked away"

• From the Milwaukee Journal Sentinel here about developments in Wisconsin, "Juvenile offenders in legal limbo: Although life sentences without parole banned for youths, 68 state inmates not likely to benefit"

This passage from the first of these articles highlights some reasons why, even years after Graham and Miller were decided and required resentencing of certain juvenile offenders, most of these offenders are still going to be spending many decades in prison before even having a chance at release:

In striking down these harsh sentences, the Supreme Court “obviously was concerned, No. 1, about locking kids up and throwing away the key,” said Marsha Levick, Philadelphia attorney and co-founder of the Juvenile Law Center. “The court was very clear that it believes kids are truly different.”  Indeed Justice Elena Kagan has written that, “given all that we have said … about children’s diminished culpability, and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.”

But in Courtroom 12, Circuit Judge John H. Skinner was unmoved.  Despite hundreds of hours of legal work, stacks of documents and a morning of arguments, the judge told Thomas, “I haven’t really changed my mind at all as far as what you should get in this case.”

So Thomas, the youngest child in a tight-knit military family, was sentenced again to 40 years.  This time, there will be a review in front of a judge and chance for release after 15 years, a provision that brings the penalty into compliance with state law.

Scenes like this one in a Jacksonville suburb are playing out around the state and across the country as judges resentencing juvenile offenders continue to issue lengthy sentences that advocates say defy the intent of the Supreme Court.

It will take years for the courts to work through the 58 Duval County homicide cases in which the juveniles’ original sentences have been deemed unconstitutional. Preparing for a resentencing hearing is intensive, and an area where the case law is constantly evolving.

But if the results from some of the earliest resolved Jacksonville cases are any indication, judges will continue to hand down long punishments. In the nine cases in which teens were first sentenced to life for childhood crimes that weren’t murder, seven of the defendants will be 60 or older when they are released.

"Assessing the Impact of Johnson v. United States on the Void-for-Vagueness Doctrine"

The title of this post is the title of this effective and extensive new Casetext essay authored by Carissa Hessick. It starts and ends this way:

Johnson v. United States, 135 S. Ct. 2551 (2015), held that the so-called “residual clause” of the Armed Career Criminal Act (“ACCA”) was unconstitutionally vague.  Johnson generated a large amount of litigation in the federal courts.  Less than a year after it was decided, the Supreme Court decided another Johnson case, Welch v. United States, 136 S. Ct. 1257 (2016), which held that the rule in Johnson should be applied retroactively to those defendants whose convictions and sentences have already become final.  The Supreme Court has also agreed to hear two new Johnson cases in the 2016 Term.

Johnson raised important constitutional doubts about federal statutes that employ the so-called “categorical approach” to classifying criminal conduct, as well as doubts about certain Federal Sentencing Guidelines.  This short essay describes Johnson and explores the Johnson-related issues that the Court will hear this Term....

Johnson v. United States is of the most cited U.S. Supreme Court cases from recent Terms.  Johnson obviously affected the large number of defendants who were sentenced under the residual clause of the Armed Career Criminal Act.  It may, however, have a lasting impact on the vagueness doctrine itself.  By questioning the viability of the categorical approach and by clarifying that the doctrine applies also to laws that fix sentences, Johnson has called into doubt the constitutionality of other federal criminal laws and various Federal Sentencing Guidelines.  We will have to await the decisions in Lynch v. Dimaya and Beckles v. United States in order to fully assess the legacy of Johnson.  If the government loses those cases, then we are likely to see a further challenges to laws that fall within the long shadow of Johnson.

Latest USSC data suggest prison savings now exceeding $2 billion from "drugs -2" guideline amendment retroactivity

The US Sentencing Commission's website has this new data document titled simply "2014 Drug Guidelines Amendment Retroactivity Data Report." This report, dated October 2016, provides updated "information concerning motions for a reduced sentence pursuant to the retroactive application of Amendment 782. The data in this report reflects all motions decided through September 30, 2016, and for which court documentation was received, coded, and edited at the Commission by October 20, 2016."

The official data in the report indicate that, thanks to the USSC's decision to make Amendment 782, the so-called "drugs -2" guideline amendment, retroactive, now 29,391 federal prisoners have had their federal drug prison sentences reduced by an average of over two years. So, using my typical (conservative) estimate of each extra year of imprisonment for federal drug offenders costing on average $35,000, the USSC's decision to make its "drugs -2" guideline amendment retroactive so far appears to be on track to save federal taxpayers around $2.1 billion dollars.

As I have said before and will say again in this context, kudos to the US Sentencing Commission for providing evidence that at least some government bureaucrats inside the Beltway will sometimes vote to reduce the size and taxpayer costs of the federal government. Perhaps more importantly, especially as federal statutory sentencing reforms remained stalled in Congress and as Prez Obama continues to be relatively cautious in his use of his clemency power, this data provide still more evidence that the work of the US Sentencing Commission in particular, and of the federal judiciary in general, remains the most continuously important and consequential force influencing federal prison populations and sentencing outcomes.

"Skewed Justice: Citizens United, Television Advertising, and State Supreme Court Justices’ Decisions in Criminal Cases"

The title of this post is the title of this notable new report authored by Joanna Shepherd and Michael S. Kang which I learned about via an email The American Constitution Society for Law and Policy. Here is the text of that email, which provides a summary of the report's contents:

The explosion in spending on television attack advertisements in state supreme court elections accelerated by the Citizens United decision has made courts less likely to rule in favor of defendants in criminal appeals. That’s according to independent research sponsored by the American Constitution Society for Law and Policy (ACS).  State supreme court justices, already the targets of sensationalist ads labeling them “soft on crime,” are under increasing pressure to allow electoral politics to influence their decisions, even when fundamental rights are at stake.

The report, Skewed Justice: Citizens United, Television Advertising, and State Supreme Court Justices’ Decisions in Criminal Cases, is a compilation of data from over 3,000 criminal appeals decided in state supreme courts in 32 states from 2008 to 2013.  Researchers found that the more TV ads aired during state supreme court judicial elections in a state, the less likely justices are to rule in favor of criminal defendants; and justices in states whose bans on corporate and union spending on elections were struck down by Citizens United were less likely to vote in favor of criminal defendants than they were before the Citizens United decision.

“The amount of money spent in state judicial elections has skyrocketed and the results of that spending are clear.  The flood of interest group money set free by Citizens United are endangering what should be impartial judicial decision-making and putting the fundamental constitutional rights of every American at risk,” said ACS President Caroline Fredrickson. “The data show that the television campaign ads this money buys put a thumb on the scale in criminal cases, and undermine the promise of equal justice that is a cornerstone of our democracy.”

Skewed Justice, by Dr. Joanna Shepherd and Dr. Michael S. Kang, both law professors at Emory University, follows the report Justice at Risk: An Empirical Analysis of Campaign Contributions and Judicial Decisions, published by ACS in 2013.  That report, authored by Professor Shepherd, revealed the growing influence of contributions on state supreme court judges. While the majority of media attention is focused on the United States Supreme Court, elected judges at the state level handle more than 90 percent of the United States’ judicial business.  This gives money and advertising huge influence in American democracy.  Beginning in the 1990s, and accelerating in almost every election cycle since, judicial elections have become more competitive and contentious, and campaign spending on these elections has skyrocketed, the research finds. Incumbent judges almost never lost their reelection bids during the 1980s, but by 2000 their loss rates had risen higher than those of congressional and state legislative incumbents.

Great back-and-forth discussion at RealClearPolicy over crime policy ideas "that should guide the next presidential administration's agenda"

The folks at RealClearPolicy have started putting together this terrific series of timely commentaries under the heading "Policies for the Next Administration." The introduction starts this way:

During an election cycle characterized by bombast, sound bites, and sensationalism, it’s easy to forget what we, as voters, are being asked to decide: What are the best policies for our country? What concrete proposals and legislative frameworks should guide the next presidential administration?

We at RealClearPolicy are creating a conversation among the partisans to help answer that question. In this special series, we’ve asked 12 leading authorities from both Left and Right to make their best case for the policy ideas that should guide and influence the next administration. Between now and Election Day, we will publish 24 articles, focusing on 12 major policy issues from differing points of view — from education policy and economic growth to health-care reform and energy policy — including a response by each author to the opposing position and a recommended reading list. This is a rare chance to hear top thinkers try out their best policy ideas — and respond to the strongest objections — in a public forum leading up to the election.

The series so far has covered four issue, and I was very pleased to see the third issue covered was "Crime" and it was covered via these entries:

PART 3: CRIME

In Part 3, Heather Mac Donald, Thomas W. Smith fellow at the Manhattan Institute, squares off against Danyelle Solomon, Director of Progress 2050 at the Center for American Progress:

Heather Mac Donald, "Telling the Truth About Crime and Policing."

Danyelle Solomon, "Time to Fix Our Failing Criminal-Justice System."

Heather Mac Donald and Danyelle Solomon, "Mac Donald v. Solomon: The Authors Respond."

There is so much that is interesting and effective in this back-and-forth that I am just going to encourage everyone to read the commentaries in full and also urge readers to share in the comments their views on the most important crime policy ideas to guide the next Administration.

UPDATE: I just notices that Andrew King over at Mimesis Law has this extended new commentary criticizing what both Heather Mac Donald and Danyelle Solomon say in these dueling commentaries. Here is how his commentary on the commentaries starts and finishes:

Crime has been a big issue in this presidential campaign. But the issues of crime swirling around the campaign has not been about policy—it’s been about the candidates. Hillary Clinton has had her email issues, and the detestable-yet-legal bribery surrounding the Clinton foundation. Donald Trump has been accused of sexual assault, and he has threatened his critics with re-criminalizing libel.

Besides caring a lot about who knows what about Aleppo, the debates and the recent campaigning has been relatively free of policy discussions. In an effort to interject some policy into the political dialog, Real Clear Polics asked Heather McDonald and Danyelle Solomon to discuss crime policy and represent the right and left respectively. Perhaps, not surprisingly to J.D.s who do policy work for think tanks, they begin with hyperbole....

The next President will have to budget for a trillion dollars and set policy for tens of thousands prosecutors, special agents, and support staff. And there are serious criminal law issues right now that deserve careful consideration. But it doesn’t look like either candidate will be the President to do that. The only solace is that we get to pick one of them. In the meantime, we can expect more of each side talking past the other.

Former Pennsylvania AG sentenced to 10-23 months in prison following jury convictions for perjury and obstruction of justice

I have not closely followed developments surrounding the political downfall and criminal prosecution of former Pennsylvania Attorney General Kathleen Kane.  But today this matter involved some interesting sentencing stories and drama, as reported via this lengthy local article headlined "Despite plea for leniency, Kane gets 10-23 months in jail."  Here are excerpts:

Former Pennsylvania Attorney General Kathleen Kane was sentenced Monday to 10 to 23 months in jail for orchestrating an illegal news leak to damage a political enemy, capping a spectacular downfall for a woman once seen as one of the state's fastest-rising stars.

"The case is about ego, ego of a politician consumed by her image from Day 1," Judge Wendy Demchick-Alloy told Kane at the end of a five-hour hearing in Norristown. "And instead of focusing solely on the business of fighting crime, the focus was battling these perceived enemies . . . and utilizing and exploiting her position to do it."

A tearful Kane pleaded for leniency, urging the judge to consider the impact on her sons. "I would cut off my right arm if they were separated from me and I from them," she said. "Please sentence me and not them."   But Demchick-Alloy was not swayed. "It's a shame that they had to go through all of this," she told Kane. "But that's a decision you made, not this court."

Unable to immediately post $75,000 bail, Kane was led in handcuffs from the courtroom to the Montgomery County Correctional facility in Eagleville.  She was released hours later — and might not have to return anytime soon. She will remain free on bail until she exhausts her state appeals, a process that could take months.

Still, the sentencing marked a bitter end to a career that drew national attention after Kane, a political neophyte and Scranton-area prosecutor, in 2012 became the first Democrat and woman to be elected as attorney general of Pennsylvania. Over hours on Monday, the judge heard Kane's supporters — including her son — extol her accomplishments and describe how devastating her conviction has been.

But Montgomery County prosecutors countered by calling to the stand Kane's current and former colleagues, who testified how she let a personal feud and paranoia poison the state's top law enforcement office and plunge it into disarray.

Erik Olsen, a top prosecutor, said he was thrilled when Kane won election, thinking her victory would bring a much-needed fresh perspective to an office he said had at times been "misogynistic and mean-spirited."  Instead, he testified, "through a pattern of systematic firings and Nixonian espionage, she created a terror zone in this office."

Kane's first year was marked by political and public relations successes.  She drew attention for her stands in support of marriage equality and gun control and for crippling Republican Gov. Tom Corbett's move to privatize the lottery — all positions her lawyer cited Monday in arguing for house arrest.  But after her star began to dim in 2014, she leaked confidential grand jury material to a newspaper in a bid to embarrass a political enemy, and then lied about her actions under oath. The ensuing two years became a bitter war, often played out through legal filings or public statements, that at times entangled government officials, Supreme Court justices, and the legislature.

At a trial in August, a jury found her guilty of perjury, obstruction and other charges.  She resigned a day later.

In her plea to the judge, Kane did not directly apologize for her crimes but rather for the consequences of her actions, saying she never intended to hurt anyone and was sorry if Pennsylvanians had lost a sense of trust in the attorney general's office. But her appeal for house arrest was a personal one: A 50-year-old mother in the throes of a divorce, she said a sentence sending her to prison could devastate her sons, 14 and 15....

Kane's lawyer, Marc R. Steinberg, said Kane's unprecedented fall from grace had been a punishment in itself. "She stands a convicted felon subject to public shame and public humiliation," he said.  Steinberg also argued Kane could be in danger behind bars, a prediction echoed by Frank V. DeAndrea Jr., a former Hazleton police chief who raised the specter of drug gangs ordering a prison hit and told the judge incarceration could be a "death sentence" for the former prosecutor.

Demchick-Alloy retorted: "When you unfortunately dirty yourself with criminal behavior, you assume that risk."

Prosecutors had sought a stiff prison term, pointing to the impact of Kane's crimes and the office culture of fear and paranoia that developed under her tenure. A former state prosecutor, Clarke Madden, testified that Kane's wrongdoing caused the State Police and the FBI to refuse to cooperate with their office, discouraged victims and witnesses from being helpful to their cases and led judges and defense lawyers to subject prosecutors to sarcastic and sniggering remarks....  After the sentencing Monday, Montgomery County District Attorney Kevin R. Steele and fellow prosecutor Michelle Henry told reporters they were satisfied with the outcome. "We suggest that is a significant sentence," Steele said. "Nobody is above the law."

Is the death penalty in the United States really "nearing Its end"?

The question in the title of this post is prompted by this notable new New York Times editorial headlined "The Death Penalty, Nearing Its End."  Here is the full text of the editorial:

Although the death penalty is still considered constitutional by the Supreme Court, Americans’ appetite for this barbaric practice diminishes with each passing year.  The signs of capital punishment’s impending demise are all around.

For the first time in nearly half a century, less than half of Americans said they support the death penalty, according to a Pew Research poll released last month.  While that proportion has been going down for years, the loss of majority support is an important marker against state-sanctioned killing.

At the same time, executions and new death sentences are at historic lows, and each year they go lower. In 2015 only 49 new death sentences were handed down, the lowest one-year total since the Supreme Court reinstated capital punishment in 1976.

Since there were about 14,000 murders around the country last year, it’s easy to imagine that the small number of newly condemned people shows that the justice system is focusing on the “worst of the worst.”  But that’s wrong. In fact the crimes of the people sentenced to death are no worse than those of many others who escape that fate. Rather, nearly all of last year’s death sentences came from a tiny fraction of counties with three common features: overzealous prosecutors; inadequate public defenders; and a pattern of racial bias and exclusion. This was the key finding of a two-part report recently issued by the Fair Punishment Project at Harvard Law School.

Even in the most death-friendly counties, public support appears to be fading. In two of the worst — Duval County in Florida and Caddo Parish in Louisiana — local prosecutors lost elections at least partly due to voters’ concerns about their stance on the death penalty. In other counties around the country, prosecutors are finding that aggressive advocacy for death sentences isn’t the selling point with the public that it once was.

In some of the biggest states, death-penalty systems are defunct or collapsing. Earlier this month, the Florida Supreme Court struck down a terrible state law that allowed nonunanimous juries to impose death sentences — increasing the likelihood that innocent people and those with intellectual or mental disabilities would be condemned.  A large number of Florida’s 386 death-row inmates could now receive new sentencing trials, or have their sentences thrown out altogether.

In California, which hasn’t executed anyone since 2006 even though more than 740 inmates sit on death row, voters will decide in November whether to eliminate capital punishment for good. A similar ballot initiative in 2012 was narrowly defeated. In 2014, a federal judge ruled that the state’s decades-long delays in capital cases violated the Eighth Amendment’s ban on cruel and unusual punishment. (The decision was overturned by an appeals court on technical grounds the following year.)

While capital punishment is used rarely and only in some places, only a definitive ruling from the Supreme Court will ensure its total elimination. How close is the court to such a ruling? In recent dissenting opinions, three of the justices — Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor — have expressed deep misgivings about the death penalty’s repeated failure to meet the requirements of due process and equal protection. Justice Breyer has said it is “highly likely that the death penalty violates the Eighth Amendment,” and has called for the court to consider whether it is constitutional at all.

The death penalty has escaped abolition before, but there are no longer any excuses: The nation has evolved past it, and it is long past time for the court to send this morally abhorrent practice to its oblivion.

I wonder if anyone who is a strong supporter of capital punishment will write (and get published) a response to this editorial which might be headlined something like "The Death Penalty, Poised for a Big Comeback."  That response might highlight that, according to polls in deep blue California, voters there are seemingly going to provide "majority support" for making more efficient in California "state-sanctioned killing."  That response might highlight that, in swing state Ohio, executive officials have been working extra hard to get the state's machinery of death operative again and have execution dates scheduled for nearly two dozen condemned murderers in 2017 and 2018.  That response might highlight that, in swing state Florida, the state legislature has been quick and eager to retain and revise its death penalty statutes every time a court has found constitutional problems with its application.  That response might highlight that, in deep blue Massachusetts, a federal jury in 2015 wasted little time in deciding that “worst of the worst” capital defendant Dzhokhar Tsarnaev should be condemned to die for his crime.  And that response might highlight that, in the most liberal national criminal justice administration of my lifetime, federal prosecutors of the Obama Administration were seemingly eager to pursue capital charges against the Charleston Church shooter Dylann Roof.

I could go on and on (mentioning, inter alia, developments in Alabama, Oklahoma, Nebraska and elsewhere), but my main point here is highlight the critical reality that the description of "death-penalty systems [as] defunct or collapsing" is largely a product of effective litigation by abolitionists and the work of courts, not really a reflection of a sea-change in public opinion or radical changes in the work of most legislatures and prosecutors in key regions of the United States.  The NYTimes editorial board my be right that we may soon see litigation by abolitionists achieve the ultimate success in the courts by having the Justices of the Supreme Court declare the death penalty per se unconstitutional.  But, absent some surprising political and social developments over the next few years, would-be abolitionists ought to be careful about counting chickens too soon.

"Autonomy and Agency in American Criminal Process"

The title of this post is the title of this intriguing new short paper now available via SSRN authored by the always intriguing David Sklansky. Here is the abstract:

This is an essay about the interaction of two assumptions that shape the way fairness is pursued in American criminal procedure.  The first assumption is that fairness is best advanced through a series of procedural rights that defendants can invoke or waive at their discretion.  The second assumption is that the choices made by defense attorneys can fairly be attributed to their clients.

The first of these assumptions reflects a strong national commitment to individualism; the second reflects a heavy reliance on lawyers to safeguard defendants’ interests.  Both reflect a deeply rooted distrust of government.  Each of these two assumptions is defensible, and each relates to fundamental aspects of the national political culture.  Taken together, though, they have narrowed what fairness means in American criminal adjudication; they combine with a kind of negative synergy, making each harder to defend than it might be without the other.

California judge imposes prison term of 1,503 years(!?!) on father who repeatedly raped daughter

As reported in this local article, a state judge in California gave new meaning to the term "mass incarceration" by imposing a prison sentence on a rapist that will not be completed until the year 3519.  Here are the details:

Fresno prosecutor Nicole Galstan asked a judge on Friday to sentence Rene Lopez to 1,503 years in prison for raping his teenage daughter over a four-year period, ending in 2013.  Judge Edward Sarkisian Jr. agreed, sentencing the 41-year-old Lopez to the longest-known prison sentence in Fresno Superior Court history.

It stands in stark contrast to recent high-profile sentencings in sexual assault cases such as six months for ex-Stanford swimmer Brock Turner and, just this week, 60 days for a Montana man convicted of felony incest for raping his 12-year-old daughter.

In announcing the punishment, Sarkisian told Lopez he violated a position of trust, engaged in violent conduct and is a “serious danger to society.” Sarkisian also noted that Lopez had never shown remorse and has blamed his daughter for his predicament.

Lopez, who sat shackled in the courtroom, sat silently, never acknowledging his daughter, who told Sarkisian that she feared her father. (The Fresno Bee does not name victims of sexual abuse.) “When my father abused me, I was young. I had no power, no voice. I was defenseless,” said the daughter, who now is 23 years old. She also told the judge that her father never has shown remorse for her pain and suffering....

In September, a jury found Lopez guilty of 186 felony counts of sexual assault, including dozens of counts of rape of a minor.  Galstan said the victim was first sexually abused by a family friend.  But instead of the father protecting his daughter, “he chose to turn her into a piece of property and use her to satisfy his sexual needs,” the prosecutor told the judge.

The victim was raped two to three times a week from May 2009 to May 2013.  Galstan said it ended only when the girl got the courage to leave him. Even then, her father would drive by her new home and later leave love songs on her message machine, the judge said....

At Friday’s hearing, Sarkisian read the date of each felony count, which included Lopez raping his daughter on Christmas and other holidays.  Before he announced the sentence, Sarkisian said Lopez turned down two plea deals. Before his preliminary hearing, if he had admitted his guilt, prosecutors would have recommended 13 years in prison. Lopez rejected the offer. Then before his trial, he was offered 22 years in prison if he admitted his guilt. Lopez declined that offer, saying he should be released from jail for the time he already had served, Sarkisian said.

“He ruined her teenage years and made her feel like it was her fault,” Galstan said in arguing for the maximum sentence.

Lopez, who did not testify in his trial, wrote in a letter to the judge that he didn’t get a fair trial and that his daughter lied on the witness stand. “It’s hearsay,” he says in the letter.  But Sarkisian told him that he received a fair trial and that the evidence was overwhelming.  In addition to the victim’s testimony, jurors heard entries from her diary in which she chronicled her father’s crimes against her, Galstan said.  And when she got pregnant from her father, he paid for the abortion, the judge said.

In addition to the prison sentence, Sarkisian said Lopez will have to register as a sex offender.

Though this defendant was convicted of extreme crimes that justified an extreme sentence, the decision of the prosecutor to seek and the judge to impose a term of 1,503 years in prison strikes me as silly and arguably counterproductive to the goal of helping all victims of sexual assault feel vindicated by the criminal justice system.  It is silly, I think, to impose upon a defendant a crazy-long-impossible prison sentence just for symbolic effect, just as a restitution sentence of, say, "one trillion, zillion, billion dollars" would be silly.  And this crazy-long-impossible prison sentence could, at least indirectly, make other victims of sexual assault whose victimizers were given much shorter sentences feel as though their harms were not entirely vindicated in their cases.

UPDATE: Over at his blog Simple Justice, Scott Greenfield has this effective new post titled "Rape, Incest And Retribution" to highlights how this case takes us from "the sublime to the ridiculous" as we reflect on what this case represents against the backdrop of other recent controversial sexual assault cases in California and Montana. In addition to recommending this post in full, I also recommend the comments there (as well as this funny button Scott provides if his post hurts your feelings).

"Punishment Theory for the Twenty-First Century: The Need to Replace Retributive and Mixed Theories"

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

The retributive conception of punishment as a process for censuring blameworthy conduct provides an important element of a complete theory of punitive justice, but by itself is not enough.  Nor are “mixed” theories that attempt to reconcile traditional retributive and consequentialist elements.  In the abstract, if punishment were unidimensional and based solely on the offenses of which offenders were convicted, they should be censured, and punished, precisely as much as they deserve relative to the censure and punishment of other offenders who commit the same and different offenses.  All that would be needed is a sufficiently discriminant ordinal scale of offense seriousness tied to proportionate punishments.

Punishment, however, cannot be unidimensional, as recent exploratory efforts to develop principled accounts of sentencing of individuals convicted of multiple offenses show.  A complete theory of punitive justice must also take account of principles, values, and goals besides blameworthiness and crime prevention.  These include fairness, equality, and human dignity, but not merely as side constraints.  A conception of punishment based on blameworthiness, or blameworthiness and prevention, can be no more than one among several interacting normative frameworks governing just punishment of convicted offenders.

Supreme Court of Louisiana declares 99-year term without parole for juve armed robber violates Graham

The Supreme Court of Louisiana issued an interesting and significant unanimous ruling last week in Morgan v. Louisiana, No. 2015-KH-0100 (La. Oct. 19, 2016) (available here).  Here is how the opinion gets started:

A jury found the defendant, Alden Morgan, committed the offense of armed robbery at age 17.  Following return of the guilty verdict, the district court sentenced him to 99 years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.  After being denied relief on direct review, the defendant filed a motion to correct an illegal sentence in light of recent developments in Eighth Amendment jurisprudence pertaining to the sentencing of juveniles.  Specifically, the defendant relied on Graham v. Florida, 560 U.S. 48 (2010), wherein the United States Supreme Court concluded that a sentence of life without the possibility of parole for a nonhomicide offense committed when the defendant was a juvenile constitutes cruel and unusual punishment.  We granted the defendant’s writ application to determine whether the defendant’s 99-year sentence is an effective life sentence and is, therefore, illegal under the Supreme Court’s decision in Graham.  For the reasons that follow, we hold that a 99-year sentence without parole is illegal because it does not provide the defendant “with a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id., 560 U.S. at 75.  Accordingly, we amend the defendant’s sentence to delete the restriction on parole eligibility and direct the Department of Corrections to revise the defendant’s prison masters according to the criteria in La. R.S. 15:574.4(D) to reflect an eligibility date for consideration by the Board of Parole.

What makes the Morgan opinion especially blogworthy is the short concurring opinion authored by Justice Crichton, which reads as follows:

“I do solemnly swear that I will support the constitution and laws of the United States and the constitution and laws of this state. . .” La. Const. art. X, § 30.

These words, which each justice of this Court affirmed upon taking office, which all Louisiana lawyers affirm, and which the District Attorney also affirms, reflect our solemn duty as members of the judiciary and the broader judicial system to uphold the constitutions of the United States and Louisiana.  Despite the clear mandate of the United States Supreme Court in Graham v. Florida, 560 U.S. 48 (2010), the Orleans Parish District Attorney has taken the stunning position that this defendant does not face the functional equivalent of life imprisonment and that he would have — in the year 2082 and at age 101 — a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id., 560 U.S. at 75.  Even worse, the District Attorney has invited this state’s high court to join him in this constitutionally untenable position that directly conflicts with a line of United States Supreme Court cases rolling back excessive punishment of juvenile offenders.  See Graham, supra, Roper v. Simmons, 543 U.S. 551 (2005), Miller v. Alabama, 567 U.S. -- (2012).  This position would, in my view, violate our oath of office insofar as it would contravene the Supreme Court’s pronouncements and, therefore, also violate the Supremacy Clause.  U.S. Const. art. VI, cl.2.  See State ex rel. Barrabino v. Henderson, 283 So. 2d 764, 766 (La. 1973) (Tate, J., concurring) (“The United States Constitution as interpreted by that court is binding upon every court in this land, including the Supreme Court of Louisiana. . . .”).  See also generally La. Rules of Prof. Conduct R. 3.1, 3.3.

Relatedly, I emphasize that the district attorney has an awesome amount of power in our justice system, which encompasses the “entire charge and control of every criminal prosecution instituted or pending in his district,” including the determination of “whom, when, and how he shall prosecute.”  La. C.Cr.P. art. 61.  As such, a prosecutor’s responsibility is as “a minister of justice and not simply that of an advocate.”  Model Rules of Prof’l Conduct R. 3.8 cmt[1] (Am. Bar. Ass’n 1983).  See also State v. Tate, 171 So. 108, 112 (La. 1936) (noting that the district attorney “represents the State, and the State demands no victims.  It seeks justice only, equal and impartial justice. . . .”).  Given both this power and responsibility, the District Attorney should seek to uphold the integrity of his office by declining to take positions that, as reflected by the 7-0 decision in this case, contravene federal constitutional law.

Anyone eager to predict the exact results of Nebraska Referendum 426, the state's "Death Penalty Repeal Veto Referendum"?

Practically and politically, the most important vote this fall concerning the present and future of the death penalty will be taking place in California where voters will weigh in on competing initiatives offering to end or to mend capital punishment in the state.  But as highlighted effectively by this recent Marshall Project article, there are notable death penalty ballot questions before voters in two other states.  This article, headlined "Three States to Watch if You Care About the Death Penalty: Nebraska, Oklahoma, and California will test the prospects of abolition," provides an astute review of all the measures and it ends this way:

Pew’s national poll numbers aside, the death penalty for years now has been a regional punishment, not a national one, largely confined to the South and West, where skirmishes over its application will continue to play out the way we see it this election.  A mixed verdict on the four measures won’t change the national narrative reflected in the latest polls. But if the death penalty is restored in Nebraska, protected in Oklahoma, and expedited in California, we’ll know there are clear popular limits to the abolitionist movement.  And if voters choose to keep the death penalty dead in Nebraska, kill it in California and leave it be in Oklahoma, the latest poll numbers will look more like a trend. Either way, these local battles, and not some grand pronouncement from the Supreme Court in Washington, are how the future of capital punishment will be decided.

There has been a good bit of (not-so-clear) recent polling on the death penalty issues in California, and Kent Scheidegger at Crime & Consequence unpacks the latest polling in this new post speculating that the "mend-the-death-penalty" initiative might win in a landslide.  Meanwhile, I cannot find any recent polling from Nebraska on its Referendum 426, the state's "Death Penalty Repeal Veto Referendum."  That reality has prompted the question in the title of this post, along with this notable new local article from the Cornhusker state headlined "Catholic Church intensifies effort to abolish Nebraska’s death penalty."

I am inclined to predict that Nebraska voters will end up reversing the repeal of the death penalty in the state.  This prediction is based not only on Nebraska's status as a solid "red state," but also on the reality that pro-capital-punishment forces in the state have significant resources and a high-profile leader thanks to Gov. Pete Ricketts. (This recent article discusses some recent campaign funding realities under the headlined "Gov. Ricketts gives another $100,000 — for a total of $300,000 — to pro-death penalty group.")  

For a variety of symbolic and practical reasons, I think the exact voting percentages on Referendum 426 could be nearly as important as which side prevails.  If the vote end up reasonably  close either way (e.g., if the winning side gets less than 60% of the vote), I suspect the losing side can and will suggest that it could have prevailed with more resources and more time to educate voters.  But if one side wins big after this issue has been garnering attention in the state, I think the vote will be (perhaps rightly) viewed by national advocates as a very  clear indication of what folks in the heartland think about the present and future of capital punishment.

Helpfully, some media in Nebraska are do their part seeking to educate voters as revealed by these links to special coverage:

• From the Ohama World-Herald, "Death penalty in Nebraska: A three-part series"

• From NET News, “Classroom Conversations: Nebraska’s Death Penalty Vote.”

Illinois Supreme Court upholds law requiring sex offenders to disclose internet identity information

As reported in this local Illinois article, the "state’s highest court has upheld a law that requires sex offenders to disclose information about their internet identities and websites."  Here is more about the ruling:

In a unanimous decision authored by Justice Charles E. Freeman, the Illinois Supreme Court held that a provision of the Sex Offender Registration Act survived First Amendment scrutiny because it bolsters the government’s interest in protecting the public without restricting more speech than necessary.

In an 18-page opinion issued this morning, the court critiqued a handful of federal district courts who have found similar statutes unconstitutional and wrote that although sex offender laws can have “a lasting and painful effect” on those they regulate, those consequences stem from the convictions rather than forced disclosure of their personal information.

The full ruling in Illinois v. Minnis, No. 119563 (Ill. Oct. 20, 2016), is available at this link, and it substantively starts and ends this way:

Section 3(a) of the Sex Offender Registration Act (Registration Act or Act) requires sex offenders to disclose and periodically update information regarding their Internet identities and websites. 730 ILCS 150/3(a) (West 2014). This information is subject to public inspection as provided by the Sex Offender Community Notification Law (Notification Law or Law) (730 ILCS 152/101 et seq. (West 2014)). The circuit court of McLean County entered an order finding that this Internet disclosure provision was overbroad in violation of the first amendment to the United States Constitution. U.S. Const., amend. I. The State appeals directly to this court. Ill. S. Ct. R. 603 (eff. Oct. 1, 2010). We now reverse the order of the circuit court and remand the cause to the circuit court for further proceedings....

We hold that the Internet disclosure provision survives intermediate scrutiny because it advances a substantial governmental interest without chilling more speech than necessary. Therefore, defendant has failed to establish that the Internet disclosure provision of section 3(a) of the Registration Act is facially unconstitutional because it is substantially overbroad in violation of the first amendment.

"Bars to Justice: The Impact of Rape Myths on Women in Prison"

The title of this post is the title of this paper newly posted to SSRN and authored by Hannah Brenner, Kathleen Darcy, Gina Fedock and Sheryl Kubiak. Here is the abstract:

This article stems from a National Science Foundation-funded interdisciplinary research project that addresses a major gap in understanding the reporting of sexual victimization in prison and the confluence of factors that contribute to the ineffectiveness of internal laws and policies.  As a basis of this work, our cohort of scholars in law, social work, and psychology utilized data and personal narratives from the groundbreaking class action lawsuit, Neal v. MDOC, brought on behalf of over 800 female inmates against the State of Michigan.

In this article, we identify the most prevalent rape myths we observed from women who were involved in the Neal lawsuit and other similarly situated female inmates across the country.  We focus on the impact of rape myths in contexts where prison staff perpetrate sexual violence against female inmates and in particular, how rape myths span the closed prison system-from reporting to grievance outcomes.  We explore how these myths shape notions of the "ideal victim," discuss their specific impact, and explain why they matter.

We consider how, by virtue of their incarcerated status, it is impossible for women victimized in prison to meet the "ideal victim" standards, ultimately rendering their attempts at seeking justice futile.  We hope that our analysis of rape myths in the prison context will inspire changes in prison law and policy by acknowledging and urging the dismantling of these often unforeseen, implicit, and informal barriers to justice.

UCLA School of Law looking for Executive Director of new Criminal Justice Program

I am intrigued and pleased that a colleague from the UCLA School of Law reached out with a request to post the following description of a notable new position that might be of interest to readers and application directions:

The UCLA School of Law is seeking a highly energetic individual with significant criminal justice policy and/or legal practice experience to be the Executive Director of a newly established Criminal Justice Program (“Program”).  The Program will support research on criminal justice issues, expand criminal justice policy engagements both in Los Angeles and nationally (and even internationally), and create new high-level training and pro bono opportunities for students to work in criminal justice. In light of that mission, the Executive Director will have a diverse range of responsibilities and opportunities.

The Executive Director is responsible for a broad range of academic and administrative functions related to criminal justice law activities and programs at UCLA School of Law. The Executive Director will plan and oversee all aspects of the Program in collaboration with the Faculty Director of the Program and other relevant law school administrators. The Executive Director will work closely with the Faculty Director of the Program and members of the criminal law faculty to support and expand research, interdisciplinary study, policy analysis, and teaching (including clinical teaching) about criminal justice at UCLA School of Law.  The Executive Director will advance the criminal law curriculum and develop and expand skills and clinical course offerings.  The Executive Director will also organize symposia and other academic activities related to criminal justice. The Executive Director will also maintain UCLA’s public profile in these areas through a mix of writings in the popular press and in periodicals read by practicing attorneys, as well as through conference presentations and comparable public events; and raise money to support the Program, for example by submitting grant applications, strengthening existing donor relationships, and exploring new potential donor relationships.

The Program is by design a dynamic one, and the new Executive Director will ultimately have significant discretion to grow the Program and its initiatives creatively. Naturally, the day-to-day work of the Executive Director will feature substantial interaction with UCLA faculty and students. But success in this position will also require meaningful public engagement that can maintain and expand the Program.

Minimum requirements include an excellent academic record; a J.D. or equivalent advanced degree from a U.S. school; and significant criminal justice policy and/or legal practice experience. The salary and level of appointment will be commensurate with qualifications and experience. This is a year-round, academic, non-tenure track position with an expected start date of June 1, 2017.

Confidential review of applications, nominations and expressions of interest will begin immediately and continue until an appointment is made.  To ensure full consideration, applications should be received by Friday, November 18, 2016 but will be considered thereafter until the position is filled. Please apply online at https://recruit.apo.ucla.edu/apply/JPF02613 by submitting a cover letter, resume, and the names and addresses of at least three professional references.

The University of California is an Equal Opportunity/Affirmative Action Employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability, age or protected veteran status. For the complete University of California nondiscrimination and affirmative action policy see: UC Nondiscrimination & Affirmative Action Policy (http://policy.ucop.edu/doc/4000376/NondiscrimAffirmAct).

New Gallup poll reports notable trends in "tough-on-crime" public polling perspectives

This new Gallup item, headlined "Americans' Views Shift on Toughness of Justice System," details the results of its latest annual Gallup poll on on crime and punishment opinions. Here are the highlights:

Americans' views of how the criminal justice system is handling crime have shifted considerably over the past decade. Currently, 45% say the justice system is "not tough enough" -- down from 65% in 2003 and even higher majorities before then. Americans are now more likely than they have been in three prior polls to describe the justice system's approach as "about right" (35%) or "too tough" (14%).

Incarceration rates in the U.S. have soared over the past few decades, and political leaders, justice officials and reform advocates have sought criminal justice reform as a result. With this, Americans' views of the criminal justice system have shifted with the national conversation, with less than a majority now saying the system is "not tough enough." Although considerably higher than in the past, relatively few believe the system is "too tough."

Views of the justice system's toughness vary across racial and political party lines.  The majority of Republicans and Republican-leaning independents say it is "not tough enough" (65%), with most of the rest describing it as "about right" (30%).  Democrats and Democratic-leaning independents, on the other hand, are most likely to say the system is "about right" (42%), with the rest dividing about evenly between saying it is "too tough" (22%) or "not tough enough" (29%).

A majority of whites (53%) say the system's handling of crime is "not tough enough," while a third (32%) say it is "about right."  One in 10 whites say the system is "too tough." Nonwhites -- who as a group make up a disproportionate percentage of the U.S. incarcerated population -- are more than twice as likely as whites to say the system is "too tough" (23%).  They are also more likely than whites to say it is "about right" (40%). Meanwhile, 30% of nonwhites say the system's handling of crime is "not tough enough."

Against a backdrop of bipartisan efforts in Congress to reform drug sentencing in 2016, 38% of U.S. adults describe guidelines for sentencing of people convicted of routine drug crimes as "too tough."  A slightly smaller percentage say they are "not tough enough" (34%), while a quarter say they are "about right" (25%).  Fifty percent of Democrats say drug crime sentencing guidelines are "too tough" -- twice as high as the percentage of Republicans (26%) who say the same. Republicans are more likely than Democrats to describe drug crime sentencing as "not tough enough" (47%).

Differences in views between whites and nonwhites are less pronounced on drug crime sentencing guidelines compared with their views of the criminal justice system's handling of crime more generally. Both whites and nonwhites have sizable percentages, ranging from 21% to 39%, of those who describe drug crime sentencing guidelines as "too tough," "not tough enough" or "about right."

Americans' views about the toughness of the criminal justice system have clearly shifted in recent decades, with less than a majority now saying the system is "not tough enough" and more Americans describing it as "about right" or "too tough." Although more than in the past believe the system is overly tough, this view is still held by a relatively small minority. U.S. adults are much more likely, however, to describe drug crime sentencing guidelines as "too tough" compared with their opinions of the system's handling of overall crime, and this is the case among both racial and political party groups.

The folks over at Crime & Consequences have these two notable posts discussing these new Gallup data (though I cannot help but note they did not comment on other recent Gallup polling data reporting record-high majoritarian support for the legalization of marijuana):

• Gallup: Only 14% Think Justice System Is Too Tough

• Q: Does a Majority Favor Lowering Drug Sentences?

"Status Courts"

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

This article identifies and analyzes a new type of specialized “problem-solving” court: status courts. Status courts are criminal or quasi-criminal courts dedicated to defendants who are members of particular status groups, such as veterans or girls.  They differ from other problem-solving courts, such as drug or domestic violence courts, in that nothing about the status court offender or the offense he or she committed presents a systemic “problem” to be “solved.”  In fact, status courts aim to honor the offender’s experience and strengthen the offender’s association with the characteristic used to sort him or her into court.

The article positions status courts as a troubling development in the evolution of problem-solving justice, in particular, and criminal justice reform, generally.  It reveals that status courts institutionalize the notion that certain offenders, by virtue of their inclusion in a particular status group, deserve better treatment than others.  This “moral sorting” provides an expressive release that may, counterintuitively, disincentivize widespread systemic reform.

And yet, while status courts present cause for concern, they also advance a positive, and possibly transformative, notion: that some individuals commit criminal offenses, at least in part, because of the influence of external factors beyond their control. In this way, status courts challenge the retributive notion that criminal offenders are wholly independent, rational actors and counterbalance the othering effect of many current criminal justice practices.  As the rise of retributive ideals played a prominent role in ramping up the penal machinery over the past few decades, embracing the more contextual, complicated conceptualization of the criminal offender status courts advance can temper the tendency to overincarcerate.

BJS reports encouraging crime reductions based on its National Crime Victimization Survey

Some more interesting and important (and perhaps confusing) official crime data was reported earlier today via this notable new report from DOJ's Bureau of Justice Statistics excitingly titled "Criminal Victimization, 2015."  Though the title of the report is not so thrilling, the data contained therein is largely a cause for celebration.  This first page of overview/highlights explains why (with my emphasis added):

In 2015, U.S. residents age 12 or older experienced an estimated 5.0 million violent victimizations, according to the Bureau of Justice Statistics’ (BJS) National Crime Victimization Survey (NCVS). There was no statistically significant change in the rate of overall violent crime, defined as rape or sexual assault, robbery, aggravated assault, and simple assault, from 2014 (20.1 victimizations per 1,000 persons age 12 and older) to 2015 (18.6 per 1,000) (figure 1).  However, the rate of violent crime in 2015 was lower than in 2013 (23.2 per 1,000). From 1993 to 2015, the rate of violent crime declined from 79.8 to 18.6 victimizations per 1,000 persons age 12 or older.

The rates of violent and property crime largely followed similar trends over time. Households in the U.S. experienced an estimated 14.6 million property victimizations in 2015. The overall property crime rate (which includes household burglary, theft, and motor vehicle theft) decreased from 118.1 victimizations per 1,000 households in 2014 to 110.7 victimizations per 1,000 in 2015. A decline in theft accounted for most of the decrease in property crime.

„No statistically significant change occurred in the rate of violent crime from 2014 (20.1 victimizations per 1,000) to 2015 (18.6 per 1,000). „

No statistically significant change was detected in the percentage of violent crime reported to police from 2014 (46%) to 2015 (47%). „

No measureable change was detected in the percentage of violent crime victimizations in which victim services were received from 2014 (10.5%) to 2015 (9.1%).

The rate of property crime decreased from 118.1 victimizations per 1,000 households in 2014 to 110.7 per 1,000 in 2015.

In 2015, 0.98% of all persons age 12 or older (2.7 million persons) experienced at least one violent victimization. „

The prevalence rate of violent victimization declined from 1.11% of all persons age 12 or older in 2014 to 0.98% in 2015. „

In 2015, 7.60% of all households (10 million households) experienced one or more property victimizations. „

The prevalence rate of property victimization declined from 7.99% of all households in 2014 to 7.60% in 2015.

In other words, in 2015 according to this distinctive victim-based accounting of crime in the United States (which, critically, excludes any homicide measures), crime remained steady at modern record-low levels or even declined a bit across most types of crime.

Local Montana judge being assailed for short jail sentence given to father who raped 12-year-old daughter

The latest controversially lenient sexual offense sentencing garnering social and traditional media attention comes from Montana, and this Washington Post article provides some of the notable details under the headline "Father who ‘repeatedly raped his 12-year old daughter’ gets 60-day sentence. Fury erupts." Here are excerpts:

In the case of Judge John McKeon, as of early morning Wednesday, almost 20,000 people had signed a Change.org petition calling for his impeachment for the 60-day sentence he gave a Glasgow, Mont., man who pleaded guilty to repeatedly raping his prepubescent daughter. “A father repeatedly raped his 12-year old daughter,” Deputy Valley County Attorney Dylan Jenson said during an Oct. 4 sentencing hearing. “It’s time to start punishing the judges who let these monsters walk our streets,” read the petition.

Prosecutors had recommended a mandatory 25-year sentence, 100 years with 75 suspended, which is what state law calls for. Instead, though, Judge McKeon handed down a far lighter sentence: a 30-year suspended prison sentence, which means the man will only serve it if he fails to meet the conditions of his probation.

Among those conditions, which McKeon called “quite rigorous,” was the requirement for the man to register as a sex offender, the Glasgow Courier reported. He also cannot access pornography and has limited access to the Internet. In addition, the man will serve 60 days in jail, but McKeon gave him credit for the 17 days he already served, meaning he’ll only spend another 43 days in jail....

In most of these controversial cases, the judges under siege tend to remain silent. What makes McKeon’s case unusual is that he has chosen to defend himself in public. In an email to the Associated Press, McKeon said he had several reasons for handing down the seemingly light sentence.

The judge claimed that news coverage obscured state law by failing to mention an exception to the mandatory 25-year prison sentence. According to McKeon, the law allows those arrested for incest involving someone under 12 years old to avoid prison if a psychosexual evaluation finds that psychiatric treatment “affords a better opportunity for rehabilitation of the offender and for the ultimate protection of the victim and society.” The judge wrote this is one of Montana’s attempts “to encourage and provide opportunities for an offender’s self-improvement, rehabilitation and reintegration back into a community.”

In the note to the AP, McKeon also referenced letters written to him by the victim’s mother and grandmother. Both letters requested the convicted man not be sentenced to prison. The victim’s mother, who walked in on the man sexually abusing her daughter, wrote that the man’s two sons love him and she wanted his “children have an opportunity to heal the relationship with their father,” according to McKeon.

The victim’s grandmother echoed this, calling the man’s behavior “horrible” but stating that the man’s children, “especially his sons, will be devastated if their Dad is no longer part of their lives.”

For all these letters defending the convicted man, though, Deputy Valley County Attorney Dylan Jensen told the AP that no one spoke on behalf of the victim, a 12-year-old girl, at Friday’s sentencing hearing. The petition to impeach McKeon highlighted this fact. “No one spoke on behalf of the 12 year old child at trial,” it read. “No one. The victim was not given justice, but instead will have to live with the fear that she still has to face her rapist in their community. ”

McKeon’s email concluded, “All district judges take an oath to uphold the Constitution and laws of this state. These constitutional provisions and laws include certain fundamental legal principles that apply at sentencing, including a presumption of innocence for unproved criminal allegations, the varying sentencing policies and the government’s burden to counter evidence supporting an exception to mandatory sentence.”...

McKeon, who has served as a Montana state judge for 22 years, is retiring next month, according to the Associated Press. Considering that an impeachment in Montana, according to the National Center for State Courts, requires a “two-thirds vote of the house of representatives and [a] convict[ion] by a two-thirds vote of the senate,” the point is fairly moot — there simply isn’t enough time to impeach him.

"The United States needs a defender general"

The title of this post is the headline of this interesting new commentary authored by Andrea Lyon, who is the dean at Valparaiso University Law School. She joined the school in July 2014. Here are excerpts:

At a time when nearly every political constituency agrees that we have over-incarcerated and over-criminalized our country, one question arises: Why did non-partisan recognition of this issue take so long? It’s no secret that we incarcerate a higher number of people per capita than any other first-world nation....

There has been no voice at the policy table for the accused, incarcerated and paroled. We have an attorney general of the United States. We have a solicitor general of the United States. The only lawyer that is enshrined in the United States Constitution is referenced in the Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right to … the Assistance of Counsel for his defence.” Yet, the defense is not, and has not been a part of policy decisions regarding criminal justice matters. There is currently no office to represent criminal justice interests at the executive level the way that the attorney general does....

All over the United States indigent defense is in crisis. There are too many cases and insufficient resources to properly staff offices and prepare cases. Too often, the result is that we find out, sometimes decades after the fact, the wrong person was in prison, or perhaps executed. A defender general would know how the defense would be impacted by laws in ways that the prosecution and judiciary don’t anticipate. There could be real input for legislatures about the likely consequences of passing certain statutes, and to help prevent expensive and ineffectual decisions....

We have seen Secretary Hillary Clinton decry over-criminalization and mass incarceration and acknowledge her husband’s part in it. Had President Clinton been presented with a defender general’s analysis, he might have chosen a different path.

How would this work? As far as I know there is no similar office internationally. Israel has a chief public defender for the entire country, and that job is to run the defense attorney function for the indigent in that country. Vermont’s public defender system is called by that name. Some other states, such as Kentucky and Wisconsin, have statewide indigent defense systems. There is certainly recognition of the importance of representation of the accused in many countries, including our own.

What is not clear, though, is a national recognition of the need for a defense policy voice that is regularly included in the conversations that Congress and the executive branch have about these issues. Both branches can and do turn to the attorney general for her input on statutory and other concerns. The solicitor general also serves as an ongoing resource, but there isn’t an office that can represent the concerns of the defense, their families and their communities. Defendants and defense attorneys need a representative at the executive level who can collaborate on major policy issues, establish national and statewide standards, and coordinate training efforts within the criminal justice system. This is a crucial voice that should be a regular part of the executive discourse and an ongoing resource for indigent defense.

This defender general’s office should be created immediately. It should be appropriately staffed and liaisons created with each of the states and territories. The defender general should command the same respect and stature that the offices of the attorney general and solicitor general command, and the defender general would ensure that all of those interested in criminal justice have a seat at the table.