College Education Grants for Inmates Restored


Pell grants for inmates pursuing college education, which were terminated during the Clinton administration, have been renewed! The Wall Street Journal reports:

The plan, set to be unveiled Friday by the secretary of education and the attorney general, would allow potentially thousands of inmates in the U.S. to gain access to Pell grants, the main form of federal aid for low-income college students. The grants cover up to $5,775 a year in tuition, fees, books and other education-related expenses.

Prisoners received $34 million in Pell grants in 1993, according to figures the Department of Education provided to Congress at the time. But a year later, Congress prohibited state and federal prison inmates from getting Pell grants as part of broad anticrime legislation, leading to a sharp drop in the number of in-prison college programs. Supporters of the ban contended federal aid should only go to law-abiding citizens.

Between the mid-1990s and 2013, the U.S. prison population doubled to about 1.6 million inmates, many of them repeat offenders, Justice Department figures show. Members of both parties—including President Barack Obama, a Democrat, and Republican Sen. Rand Paul of Kentucky—have called for a broad examination of criminal justice, such as rewriting sentencing guidelines.

A 2013 study by the Rand Corp. found that inmates who participated in education programs, including college courses, had significantly lower odds of returning to prison than inmates who didn’t.

Some congressional Democrats have proposed lifting the ban. Meanwhile, administration officials have indicated they would use a provision of the Higher Education Act that gives the Education Department the authority to temporarily waive rules, such as the Pell-grant ban, as part of an experiment to study their effectiveness.

Education Secretary Arne Duncan and Attorney General Loretta Lynch are expected to announce the program, which likely would last three to five years to yield data on recidivism rates, at a prison in Jessup, Md., on Friday. Key details aren’t yet clear, such as which institutions and what types of convicts would be allowed to participate.

I really like this administration’s focus on rehabilitation and return-on-investment strategies. I hope Obama will manage to accomplish as much as possible in this arena before the election in 2016.

Reading Recommendations for the Summer

Those of you who are following the news might appreciate a few of these books as summer companions that offer some context for what we’re seeing in policing and the community. 

Chuck Epp, Steven Maynard-Moody, Donald Hayder-Markel (2014) Pulled Over: How Police Stops Define Race and Citizenship

David Simon (2006) Homicide: A Year on the Killing Streets

Victor Rios (2011) Punished: Policing the Lives of Black and Latino Boys

Adrian LeBlanc (2003) Random Family: Love, Drugs, Trouble, and Coming of Age in the Bronx

James Liebman and the Columbia DeLuna Project (2014) The Wrong Carlos: Anatomy of a Wrongful Execution

Ioan Grillo (2012) El Narco: Inside Mexico’s Criminal Insurgency

Radley Balko (2013) Rise of the Warrior Cop: The Militarization of America’s Police Forces

William Garriott (2011) Policing Metamphetamine: Narcopolitics in Rural America


If readers have additional recommendations, feel free to post them in the comments. And if any readers would like to spend some time discussing one or more of these books on the blog, please let me know.

SB-328 Passes, Determines Criteria for Trying Juveniles as Adults

Source: Legislative Analyst’s Office

SB 382, coauthored by Senators Ricardo Lara and Mark Leno, clarifies the criteria under which the criminal justice system should determine whether to try a juvenile as an adult.

This summary by the Legislative Analyst’s Office provides a good guideline to the way discretion is applied in processing juveniles. Some serious offenses trigger a prosecutorial prerogative of “direct filing”, that is, charging and trying a juvenile’s case in adult court. Alternatively, the D.A. can ask for a “fitness hearing”at the juvenile court, which includes a report by a probation officer and a judicial decision whether to transfer the case.

The newly passed bill enumerates the five criteria to be taken into account when making the call whether to try juveniles in juvenile or adult court, which are as follows:

(A) The degree of criminal sophistication exhibited by the person. This may include, but is not limited to, giving weight to the person’s age, maturity, intellectual capacity, and physical, mental, and emotional health at the time of the offense, the person’s impetuosity or failure to appreciate risks and consequences of criminal behavior, the effect of familial, adult, or peer pressure on the person’s actions, and the effect of the person’s family and community environment and childhood trauma on the person’s criminal sophistication.

(B) Whether the person can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction. This may include, but is not limited to, giving weight to the minor’s potential to grow and mature.

(C) The person’s previous delinquent history. This may include, but is not limited to, giving weight to the seriousness of the person’s previous delinquent history and the effect of the person’s family and community environment and childhood trauma on the person’s previous delinquent behavior.

(D) Success of previous attempts by the juvenile court to rehabilitate the person. This may include, but is not limited to, giving weight to an analysis of the adequacy of the services previously provided to address the person’s needs.

(E) The circumstances and gravity of the offense for which the person has been convicted. This may include, but is not limited to, giving weight to the actual behavior of the person, the mental state of the person, the person’s degree of involvement in the crime, the level of harm actually caused by the person, and the person’s mental and emotional development.

We will be following juvenile matters more closely in the coming weeks, in preparation for a special event: the Hastings Institute for Criminal Justice, with the collaboration and cosponsorship of Rosen, Bien, Galvan & Grunfeld, LLP, will be holding a special screening and discussion of Caitlin McNally’s film Stick Up Kid, which follows Alonza Thomas as he is prosecuted and punished as an adult. McNally will be with us, as well as a lawyer and a student who were formerly tried and incarcerated as juveniles and two advocates for juvenile justice. Save the date – 9/17 – and stay tuned for more.

Obama’s Post-Punitivism

President Obama’s speech yesterday at the NAACP was a dream come true for American prison reformers, who have waited for decades to hear a U.S. president retreat from the punitive proclamations we have gotten so used to hearing.

I highly recommend listening to the speech in its entirety, but wanted to point out a few highlights:

1. In the spirit of the events of the last few months, Obama links the NAACP’s activism in the area of criminal justice reform and poverty to their historical standing up to lynching and voting restrictions.

2. “For the first time”, said the President, “the crime rate and incarceration rate both went down at the same time.” This is the first time a U.S. president is acknowledging low crime rates.

3. “Crime is like an epidemic; the best time to stop it is before it starts. . . if we make investments early in our children we will reduce the need to incarcerate those kids.” Obama references investing in early childhood and in summer jobs, mentioning that these will “save the taxpayers money, if we are consistent about it.” These statements are reminiscent of President Ford’s statements on crime (for more on this, see Cheap on Crime.)

4. Obama states an unwavering commitment to enfranchising felons: “If folks have served their time, and they’ve re-entered society, they should be able to vote.”

5. As befitting the setting for the speech, Obama spends a great deal of time “un-othering” crime, by speaking about how “other people’s kids” should be treated like “our kids”, speaking directly about the urgent need to restore trust between the police and the communities it serves.

6. Obama discusses sentencing reform and urges a sentencing reform bill that should be “passed through Congress this year”, which will restore judicial discretion and invest in diversion programs, which “can save taxpayers thousands of dollars per defendants each year.”

(read more about the speech on Slate.)

Some of this is right out of the Cheap on Crime playbook: diversion, nonpunitivism, and rehabilitation are cheaper, make sense in the face of declining crime rates, and should therefore be a bipartisan concent. But there is also a concept of dignity as a communitarian value that is being advanced here. Echoing sentiments that remind me of his days as a community organizer, Obama expect solidarity from his constituents, and he expects them to feel responsible for even the weaker links in the American social chain. Toward the end of his second term, Obama wants to galvanize his supporters to fix some of the things that are wrong in the criminal justice system.

It bears to mention that Obama’s criminal justice mandate extends only to the federal system, which houses a small minority of the inmates in the United States. But even so, changes to the federal sentencing laws may become an important influence on state legislation and, perhaps, also on federal judicial review of state practices. It is also worth mentioning that most presidential candidates for the 2016 elections–from Bernie Sanders to Ted Cruz–are not opposed to the ideas that Obama articulates in this speech; notably, Bill Clinton expressed enthusiasm and relief for his wife’s platform of reversing the punitive excesses of his own presidency. In short, being panicky and punitive is passé, and being fiscally conscious and community-oriented is “in”.

How much of this will translate to real-life policies remains to be seen, but it is encouraging to think that Obama still has a year and a half left to wrangle Congressional Republicans on criminal justice. And he’s dealing with less opposition from the Right than he would have in, say, 2006.

Britain’s Correctional Crisis

Yesterday’s Guardian reported that English and Welsh prisons are “at their worst level for 10 years.” This is according to a report by Nick Hardwick, the exiting Chief Inspector of Prisons, which is apparently a thankless job fraught with political pressure and incentives to conform. Hardwick reports that

staff shortages, overcrowding and a rising level of violence fuelled by a rapid increase in the use of legal highs have all contributed to a significant overall decline in safety.

The chief inspector even reports that prison officers at Wormwood Scrubs showed him cells that were so bad that they told him: “I wouldn’t keep a dog in there.”

His findings suggest that the “rehabilitation revolution” promised five years ago by the last government has yet to get under way.

The chief inspector says alternatives to custody should be considered to bring down the prison population, which currently stands at 86,255. He says this may be “unpalatable” to politicians but so are many other public spending choices the government has to make.

“Our own assessments about safety were consistent with data that the national offender management service (Noms) itself produced. You were more likely to die in prison than five years ago. More prisoners were murdered, killed themselves, self-harmed and were victims of assaults than five years ago,” said Hardwick. “The number of assaults and serious assaults against staff also rose.”

Hardwick says he found that overcrowding was in some cases exacerbated by extremely poor environments and squalid conditions. “At Wormwood Scrubs, staff urged me to look at the cells. ‘I wouldn’t keep a dog in there’, one told me,” he reported, adding that he found filthy cells covered in offensive graffiti in cockroach-infested wings.

Launching his report, he said: “It cannot go on like this. The cost is unsustainable. The profound effects on rehabilitation outcomes are unsustainable.”

Does any of this sound familiar?

Many of the commentators about mass incarceration lump developments in the UK with those in the US. A good example is David Garland’s The Culture of Control, which argues that both countries are plagued by a similar atmosphere of punitivism, panic, and a growing discourse revolving around the underclass. Garland discusses both countries in tandem, linking the rise of a massive criminological effort to late 20th century developments, which emerged as a reaction to post-WW2 “war on poverty” programming. The commitment to treating the problem of crime in the community, tailoring sentences to the offender, and engaging in “penal welfarism” had vanished by the late 1970s–partly as a result of rising crime rates–and the social and economic changes led to a new paradigm in crime control, consisting of two contradictor models: “criminologies of the self”–reliance on situational crime prevention and an industry of defense against crime, and “criminologies of the other”–an increasingly isolating and punitive regime that demonizes and dehumanizes offenders and inmates.

There are some good reasons for the comparison; Garland is focusing particularly on the combination of Reaganism and Thatcherism as the turning point. But the book does not draw fine distinctions between the two countries, which engage in considerably different (though uniformly insidious) politics of race in the context of their criminal justice system. The Guardian story makes me wonder whether the Cheap on Crime moment in the United States, as well as the Obama administration’s commitment to shrinking the punitive apparatus, has arrived in the UK as well, and might change things there for the better.

How the Media Talks About Prison Homicide: A Murder in Vacaville

A couple of months ago, news outlets reported a murder in California State Prison, Solano. The murder did not make headlines until yesterday, when it suddenly returned to the news with some gruesome details and discoveries.

Beyond the sadness and horror (and, of course, condolences to Maria Rodriguez and her family), one has to wonder, again, about the media tendency to look for an “angle”. It’s fairly obvious that the story got a second life once media outlets found out (two months late) the horrific details of this heinous crime. But the Associated Press cannot resist looking for an “angle”–some way to generalize from this and make it into a moral panic we can all get behind–and here’s what it finds notable:

Homicides are distressingly common in California prisons. More than 160 inmates have been killed in the last 15 years, and the state has one of the nation’s highest inmate homicide rates.

. . . 

 “It’s very difficult to cover every contingency with the limited staff that we have,” said Chuck Alexander, president of the California Correctional Peace Officers Association that represents most prison guards.

   “This kind of thing at Solano, sad to say I predict it’s just a precursor,” he said. 

   He noted a 2011 California law that keeps lower-level offenders in county jails, leaving state prisons to hold the most violent criminals. Changes in prison policies, meanwhile, mean more dangerous offenders are being housed in lower-security prisons like medium-security. 

If you’re a critical news consumer, this ought to leave you wondering: does California have a particularly violent prison population? and, if so, is this somehow attributable to the Realignment? to “changes in prison policies”?

The Bureau of Justice Statistics routinely collects information on inmate deaths in federal, state, and local custody. In this report, which covers the years 2001-2012, California is reported to have a yearly average of eight inmate homicides per 100,000 inmates. This number includes not only homicides by inmates, but also by staff (sadly, the numbers don’t offer the breakdown.) Two things are notable about this number: first, it is not at all an outlier among other states. That honor falls to Oklahoma, with 14 per 100,000 homicides, or to Maryland, with 11 per 100,000 homicides. Just to show the number in context: Hawaii has had an average of 6; New Mexico and Tennessee, 9 each; Maine, 8; and Colorado, 6.

Second, it is not grossly out of proportion to the overall homicide rate in California, whose annual homicide rates for the years 1996-2013 veered between 9 and 5 homicides per 100,000 people. Of course, as is the case in the country in general, it was a downward slope; the prison data are presented in a way that makes it impossible to figure out if they’ve also had a downward slope.

It seems like the presentation of data in the article (160 homicides per 15 years) does not suggest anything particularly violent about California prisons as compared with the outside population or with other states.

But let’s turn to Alexander’s remarks. Would more homicides be prevented if there were more guards? Since the BJS data do not provide the breakdown between staff and inmate perpetrators, it’s hard to tell. If the former accounts for a considerable number of the homicides, perhaps the relationship between number of guards and number of homicides should give us pause about hiring more.

The coup-de-grace, though, is the bizarre mention of Realignment and “changing prison policies”. I assume by the latter Alexander does not refer to Prop 47, which was approved only in November, and therefore could not have affected the numbers in any way. As to Realignment, as the article correctly mentioned, it was a policy that focused on non-serious, nonviolent, nonsexual offenders, who were moved out of the prison system (according to a new study by Julie Gerlinger and Susan Turner, people who commit less serious offenses are not necessarily less risky or less likely to recidivate; they’re just less likely to create public uproar when released). What sort of effect could it have had on homicide rates? Is there any evidence whatsoever that prison homicide rates have risen in the aftermath of Realignment? Is there any evidence whatsoever that the increased rate is that of homicide perpetrated by inmates, rather than by staff? I confess I’d be surprised if that were the case; one of the effects of Realignment was alleviating the massive overcrowding in California prisons was alleviated, so one possible factor in prison violence rates has actually been addressed. At a conference last year, Ryan Patten presented a paper that suggested that Realignment actually brought a rise in violence in local jails (as opposed to prisons), but I remember not being convinced that this correlation was not marred by confounding variables. Moreover, Patten didn’t have a breakdown by perpetrator, either. In short, absent any actual data, it’s hard to give credence to Alexander’s assessment.

Here are three alternative suggestions for “angles” that might actually have something to do with prison homicide rate:

Bad cellmate choices. Just recently, CDCR refused to consider the possibility of taking inmate preference into account when allowing them to choose cellmates. Of course, there is no data about how many homicides are perpetrated by cellmates, but that would be one interesting thing to find out. Why resist a simple compatibility survey when it could save lives?

An overall unsalubrious environment. For 11 of the 15 years mentioned, inmates lived under horrific conditions that included overcrowding, massive medical neglect, and a whole host of iatrogenic diseases. There’s still plenty to do on that front. Maybe this is a “broken windows” type of situation, in which people who are horrifically treated conform to the institution’s conditions and expectations.

Staff violence. Just recently, the Supreme Court decided Kingsley v. Hendrickson, which requires a legal objective test to assess excess violence toward pretrial detainees. The Court also left the door open as to the possibility of applying this test to prison inmates, too. I, for one, would have liked to see the breakdown between staff and inmate perpetrators and learn more about the source of prison violence.

I would have liked to see an article discussing prison violence from these perspectives, rather than throwing out conjunction and statistical inaccuracy, and presenting prison violence as merely a subset of overall violence. But I’m not holding my breath.

Should San Francisco Rethink Its Sanctuary City Policy? The Price of “Redball’ Cases

Immigration and crime rates in the United States, 1999-2013.
Source: American Immigration Council.

The tragic death of Kathryn Steinle at Pier 14 is senseless, brutal, and, of course, a horrific loss to everyone who knew her. And the confession of the alleged killer, Juan Francisco Lopez-Sanchez, who claims the shooting was done at random (an accident?) make this incomprehensible brutality even more difficult to bear. New discoveries about this horrific tragedy, it seems, appear every day, including the disturbing fact that the gun used in the shooting belonged to a federal agent.

As in the case of other heinous, sensational crimes, the media circus is looking for an “angle”: what is this crime “about?”. And in this case, they have found their angle in the shooter’s immigration status. Lopez-Sanchez was not only a repeat felon (though his previous felonies were not violent) but also an undocumented immigrant, deported several times and returning to the United States, and protected from federal deportation by San Francisco’s sanctuary city policies (which we discussed as they were enacted and debated here, here, and here).

These have become, over the last few days, essential ingredients for a new moral panic against undocumented immigrants, questioning the city’s policy. And it is an easy target for the media: it stands in stark contrast to the trend in other states, notably (but certainly not only) Arizona, to enact anti-immigration laws that enable local law enforcement to assist the federal government with deportation–and sometimes, to do the feds’ job. Some local governments’ persistence in enacting and upholding these laws is particularly astonishing given the enormous costs they entail. In going against this trend, San Francisco is ripe for criticism, and indeed, everyone seems to blame everyone else: Jesse Waters blames the Democrats, the White House blames the Republicans, but what everyone agrees on is that the sanctuary city policy is to blame.

It is understandable that, in the aftermath of a terrible loss, we’re looking for a way to make sense of the tragedy; we did the same just two weeks ago after the horrible mass murder in South Carolina. It is the (understandable) scourge of “red ball crimes” that they attract energy and strong feelings that lead to panic and specialized policy legislations; it is the sad reason why our sex offender laws bear the names of murdered children. But in this case–as is often the case when policies are debated in light of a “red ball crime”–questioning the policy is misguided, because Lopez-Sanchez is the exception, not the rule.

The consensus in the research community has been, for many years, that immigrants commit less crime than the native-born. This has been confirmed time and time again via different methods. As the charts above show, crime rates nationwide have fallen as immigration, including undocumented immigration, was on the rise. While this does not necessarily prove anything, it also does not prove the opposite. But other evidence is stronger: immigrants are less likely than the native-born to be incarcerated, and most convincingly, studies tracking at-risk youth have shown that immigrants actually engage in less criminal behavior than the native-born. Even second-generation immigrants, who commit more crime than first-generation immigrants, commit less crimes than the native-born. The vast majority of deportations of “criminal aliens”, according to official data, are not due to serious crime–most are due to immigration, drugs, and traffic offenses. Only 8.6% of those targeted by ICE detainers have a criminal record that includes a “level 1” criminal offense, and 77.4% have no criminal record whatsoever. Apparently, the misguided public belief that immigrants commit more crime stems from a misguided estimation of their percentage in the population, and it seems to be more prevalent among less educated people who have less cultural affinity with immigrants.

The frenzied, empirically unfounded responses to Steinle’s death obfuscate the real problem: undocumented immigration has been going on for many, many decades, it is an inseparable part of our political geography, and it happens, with U.S. complicity, because we need the Mexican undocumented market. The wish to draw conclusions from a terrible tragedy so that it doesn’t happen again is understandable, but that does not mean we should draw the wrong ones.

Death Penalty Bind: The Price of Out-of-State Incarceration in Hawaii?

Recently, we blogged about the discontent in Massachusetts over the death sentence for Dzhokhar Tsarnaev. For people living in an abolitionist state, this outcome from the federal system was quite a shock.

Today’s news bring a similar shock to Hawaii, which abolished the death penalty in 1944. As I learned during my sabbatical at University of Hawaiʻi at Mānoa, Hawaii houses more than a third of its inmates out of state, on the mainland. Hawaii’s former governor, Neil Abercrombie, was elected partly based on his promise to bring the inmates home, and found that doing so was more difficult than he expected.

One unexpected outcome of the horrendous Supreme Court decision in Glossip v. Gross is that two Hawaiian inmates, housed at a private facility in Arizona, are now realistic candidates for execution–for a crime committed during their incarceration on the mainland. The Civil Beat reports:

Because the Supreme Court on Monday upheld the use of a controversial drug that happens to be used in Arizona executions, the high court may have set the stage for Miti Maugaotea Jr. and Micah Kanahele to die from the effects of a drug whose use wouldn’t even be a consideration in their home state.

Kanehele and Maugaotea both face trial for the 2010 murder of another Hawaii prisoner, Bronson Nunuha. Trial is set for August of next year, and prosecutors will seek the death penalty, an official with the Pinal County (Arizona) Attorney’s Office confirmed Tuesday.

. . . 

The crimes that Kanehele and Maugaotea are accused of are horrific. Media accounts say their alleged victim was found stabbed 140 times, with the initials of Kanehele and Maugaotea’s prison gang carved into his chest.

But both inmates are only incarcerated in Arizona because Hawaii found outsourcing its prison needs to CCA a more cost-effective option than building more prisons of its own. While they and others are there, are we comfortable with them being subject to the penalties of Arizona — even a punishment so singular and controversial that we took the highly uncommon step decades ago of outlawing its use in Hawaii?

Our decision in 1957 would suggest we are not. As Chang said last year, Hawaii is a society that does not put people to death, no matter how heinous their crimes. And as Justice Breyer wrote on Monday, the death penalty may well violate the very basis for our democracy — the U.S. Constitution.

It may be too late for Hawaii to save the unfortunate lives of Kanehele and Maugaotea, whose previous violations and alleged brutal murder of Bronson Nunuha have set in motion wheels of justice that may be beyond this state’s control.

But if we really believe in the values that we claimed in 1957, we should think hard about putting Hawaii inmates in facilities where further crimes might result in a penalty we would never have imposed ourselves. Gov. David Ige, Attorney General Doug Chin and director of the Department of Public Safety Nolan Espinda should use Monday’s controversial Supreme Court decision to examine anew our options under the agreement with CCA and determine whether punishment by death was intended to be part of the incarceration bargain. 

This grim situation is a reminder that, as in the case of same-sex marriage before Obergefell, the state-by-state solution for the death penalty does not insulate some jurisdictions from the punitive decisions of others (and vice versa). While the depressing result in Glossip does not bode well for nationwide abolition, and while I still think that abolition will come, in my lifetime, from an aggregate of local decisions, this slow and low-key process has some unfortunate results.

——–
Props to Edi Kinney for alerting me to this article.

BREAKING NEWS: SCOTUS Allows Oklahoma to Use Midazolam for Executions

The Supreme Court has just issued its decision in Glossip v. Gross, a petition on behalf of Oklahoma inmates along the familiar lines of tinkering with the machinery of death. After the Court found the three-drug protocol constitutional in Baze v. Rees, many executions stopped because the first drug in the trio became scarce (partly because European countries, disgusted with our retention of the death penalty, stopped exporting it.) As a solution to the problem of not being able to kill people, Oklahoma has introduced a substitute, the anesthetic Midazolam. This morning’s decision sides 5:4 with the state, finding that the inmates have not proven that using Midazolam would violate the Eighth Amendment, nor shown an alternative method.

The “tinkering” line of death penalty cases stems from the post-Gregg convention that the death penalty is constitutional in principle, and therefore there must be a constitutional way to administer it. The problem is that, in the search for such a way, we have tried and abandoned several methods. As Austin Sarat shows us in Gruesome Spectacles, there really is no good way to kill people: approximately 3% of all executions are botched. The line between an execution that “went well” and one that didn’t becomes remarkably blurry with the modern, pseudomedical ways to kill people. Still, there are enough documented lethal injection cases in which things did not go as planned to remind us that, no matter how clean and medical they appear, all of these methods will essentially fail to achieve the impossible distinction between death and suffering.

You can’t divorce death from suffering: death is suffering. And it is clinging to the farce that the two are separable that makes court decisions on this matter farcical as well. Today’s decision complains about “activists” that have made the drug scarce–as if it is their obligation to mitigate the harm. It also finds that the inmates have not offered a better solution to the state, as if they should wrap the executioner’s ax with velvet: “here, this might be more comfortable for me.”

What would happen if we let go of the assertion that there must be a way to kill people? If we let go of incessant litigation about the technologies of death? If we let go of the immensely costly post-conviction mechanism in which death row attorneys, completely out of options that invoke a true fundamental conversations about the heart of the matter, have to juggle chemicals and contraptions arguing that no, this one ain’t good enough, either?

(I should say: I don’t fault litigators one bit for engaging in this chatter. You do what you can with what you have to zealously defend your client. The abolitionist movement contains multitudes, and it is okay to fight for one’s client’s life by any means necessary while others continue to tackle the death penalty itself.)

The tenor of today’s decision, which clings to the moral imperative to kill people in the face of medical and scientific evidence that doing so is truly not possible without flukes and without the suffering that goes with any inflicted death, further supports my conclusion from the last couple of years of this, namely, that the death penalty will not, itself, be executed. It will die a slow, costly death from a chronic disease–much like the inmates at San Quentin.

BREAKING NEWS: Has SCOTUS Lost Its Appetite for Sentencing Enhancements and Risk?

Amidst the good news that are not this blog’s topic, about which you can read here and here, the Supreme Court also decided an important sentencing case, Johnson v. U.S.

The case involves the federal Armed Career Criminal Act, a habitual offender law that provides a sentencing enhancement upon committing the third violent offense. The residual clause of the law defines “violent offense” as any offense that “involves conduct that presents a serious potential risk of physical injury to another.”

In Johnson’s case, the sentence was enhanced because his third offense was possession of a firearm (Johnson is a felon, and the firearm in question was a sawed-off shotgun. If you want more background, Johnson was being monitored for belonging to a white supremacist organization and being a source of concern re terrorism, and confessed to some pretty scary plans in that regard–so you can be sure thta this decision is not about his niceness).

The initial question put before the court was whether possession of a firearm fits the definition in the residual clause, but the Supreme Court asked the parties to brief on a broader issue: the definition of “violent offense” itself. Today, the Court sided 8-1 with Johnson, finding that the definition of “violent offense” was too vague and did not provide sufficient warning about conduct.

The vagueness, according to Justice Scalia who wrote for the majority (!!!), lies in the fact that the clause provides no guidelines for what counts as “risk” posed by the crime (statistics? similarity to enumerated offenses? precedents have taken various and different tacks) and for assessing the amount of “risk”. Even seemingly easy issues turn out to be difficult to call. Notably, Scalia gives the example of “prison rioting”, which he is willing to say is an offense that is defined so broadly that it doesn’t necessarily generate “risk” of injury (!!!). Moreover, it is not necessary that a vague statute be “vague in all its applications”.

The court also rejects the suggestion that “risk” be interpreted based on what each defendant actually did, rather than based on the average case. This is important in the facts of Johnson itself: It may well be that many felons in possession of a firearm don’t pose as much risk as Johnson, a white supremacist with violent plans against progressives and minorities, but Johnson needs to be judged by the overall risk of the offense, not by his particular plans.

Finally, the court states that its decision is prompted by the massive confusion among lower federal courts on how to interpret the clause.

Justice Thomas arrives at the same conclusion via a different path–finding that possession of a firearm does not the definition in the residual clause. He agrees with the sole dissenter, Justice Alito, that the statute is not so vague as to merit its invalidation.

A few thoughts:

  1. It’s hard to ignore the particular facts of this case given the tragic events of last week in South Carolina. Johnson’s plans were similar to those that Roof put into action. Is the 8-1 decision here explainable, politically, via pro-gun sentiments among the conservative Justices?
  2. This decision might suggest that the Court has lost its appetite for sentencing enhancements. In Criminal Procedure II, I teach cases that have bent over backwards to uphold enhancements–including, in the case of California’s Three Strikes, the ability to add two strikes at the same time (which obviously can’t be justified by the need to deter–just by the wish to incapacitate.) Here we see that the Court pays a lot of homage to the idea of behavior modification, invoking the principle of legality. If I were teaching first year criminal law next year, I’d teach this case on the first day of class.
  3. The decision also highlights a disenchantment with the language of risk and panic, which has characterized so much of American criminal justice in the era of the “New Penology“. 
  4. Many commentators on the new state of criminal justice, including me in Cheap on Crime, have pointed out that much of the new project of scaling back mass incarceration addresses nonviolent offenders, and retrenches opinions about violent offenders by lumping them all in the same category. I find it remarkable, and heartening, that this decision strikes at the heart of the issue, arguing against an overbroad category of violent offenses. I’m not sure Johnson should necessarily be on that side of the distinction, but as the Court states, this is about the offense, not about the offender.
  5. Finally, I find it notable that Justice Scalia–who, in Brown v. Plata referred to inmates as “speciments”–chose, as one of his examples, prison rioting, explicitly stating that the definition of rioting is so broad that it is not necessarily a violent offense. Attorneys in Ashker v. Brown, the lawsuit against long-term solitary confinement, should take note of this comment. I think it’s important. It’s the third Supreme Court statement this week that is sympathetic to prisoners.