Is prison reform for non-violent drug offenders alone enough to solve the problem?

According to this FiveThirtyEight article, not even close:

Suppose every federal drug offender were released today. That would cut the incarceration rate to about 693 inmates per 100,000 population. Suppose further that every drug offender in a state prison were also released. That would get the rate down to 625. It’s a significant drop, no question — these hypothetical measures would shrink the overall prison population by about 14 percent. (There isn’t data from BJS on the most serious charges faced by those in local jails, so let’s assume that no jail inmates are released in these scenarios.)
But let’s have some international context. Even in that extreme hypothetical situation, the U.S. would still be an incarceration outlier. Even without its many inmates who are convicted of drug charges, the U.S. still leads the world in imprisoning people. Next is the U.S. Virgin Islands, with a rate of 542 per 100,000 people, followed by Turkmenistan at 522 and Cuba at 510. Russia’s rate is 463. (See the bottom of this post for the full list of international incarceration rates. The international data is from the International Centre for Prison Studies, and I’ve restricted the list to countries with a population of at least 100,000.)
Locking up drug offenders is only part of the larger story behind mass incarceration. Other reasons for the high rates include the severity of nondrug sentencing, the attitudes of judges and prosecutors, a high rate of violent crime such as murder, and rising crime rates in the 1970s and 1980s. “The increase in U.S. incarceration rates over the past 40 years is preponderantly the result of increases both in the likelihood of imprisonment and in lengths of prison sentences,” the National Research Council wrote in a report last year.
Reformers interested in ending mass incarceration — or at least in getting America’s rates in line with those internationally — will have to think far more broadly.¹ It’s a much thornier problem than that.

Meantime, congratulations to Judge Moreno on 25 years on the bench.  He's been a pillar of this District and has done a lot to transform the court for the better.  This weekend he celebrated with his law clerks from all over the country who flew in to be with him.

ADDED -- I'm told by one of my favorite tipsters that Judge Moreno's clerks (more than 40 of them were here this weekend) raised money to start a scholarship in Judge Moreno's name at the University of Miami.  Really really nice.

Judicial Luminaries

Last night’s Judicial Luminaries reception and dinner at the Mayfair Hotel in Coconut Grove—put on by the Spellman-Hoeveler American Inn of Court and Legal Services of Greater Miami—was a fun, informative event that featured a panel of six of our federal and state judges: Judge Jordan of the U.S. Court of Appeals for the Eleventh Circuit; Judge Huck of the U.S. District Court for the Southern District of Florida; Judge Bronwyn Miller of the Eleventh Judicial Circuit; Chief Judge Moore of the U.S. District Court for the Southern District of Florida; Judge Thornton of the Eleventh Judicial Circuit; and Judge Walsh of the Eleventh Judicial Circuit. Judge Salter of the Third District Court of Appeal moderated.

Some highlights:

Chief Judge Moore talked about the importance of continuing efforts to secure adequate and safe space for the judges, the lawyers, and the public. The Chief also mentioned that the bench could be changing soon—Judges Zloch, Middlebrooks, and Martinez are now eligible for senior status and (if my notes are correct) six others will be eligible over the next few years. Wow.

Judge Jordan said that the workload on the Eleventh Circuit has lessened a bit since he joined, though one vacancy still exists (Alabama), two judges have left the court (Judges Barkett and Birch), and Judge Hill retired and another may retire soon. The Eleventh Circuit, he said, is still among the top three circuits in the country with cases per judges. Each judge has about 12 to 15 death-penalty cases per year.

Judge Jordan also said that pro se appeals make up about a quarter of the Eleventh Circuit’s docket, and mentioned opportunities for lawyers to take these cases on.

Judge Jordan said it’s “not easy” to obtain oral argument, citing, among other things, the Eleventh Circuit’s tradition in granting it sparingly. Judge Huck—who frequently sits by designation on the courts of appeals—also said this about getting oral argument: “It helps if your appeal has some merit.”

Finally, Judge Huck gave good, practical advice, saying that judges don’t like surprises and that lawyers shouldn’t try to duck judges’ questions. He also encouraged lawyers to take on pro bono cases, mentioning the court’s volunteer-lawyer program. He called this a win-win-win situation—a win for the client, for the court, and for the lawyer.

President calls for Criminal Justice Reform

The top people at the Executive Branch are trying.  Now we need the judicial branch to step up.  From the Washington Post:

President Obama called for an overhaul of the criminal justice system Tuesday, saying that the United States needed to reevaluate an “aspect of American life that remains particularly skewed by race and by wealth.”
The speech at the NAACP’s national convention, coming on the heels of a sweeping act of clemency Monday and ahead of his visit Thursday to a federal prison in Oklahoma, was the formal launch of one of the president’s last major legislative campaigns.
Sentencing reform represents one of the final domestic policies Obama hopes to broker on Capitol Hill before leaving office.
Telling the audience that “we can’t close our eyes anymore,” Obama noted that the nation’s prison population had more than quadrupled from 500,000 in 1980 to 2.2 million today.
“In far too many cases, the punishment simply doesn’t fit the crime,” he said. “And by the way, the taxpayers are picking up the tab for that price.” He argued that the $80 billion the federal government spends each year on prisons — nearly a third of the Justice Department’s budget — could instead fund preschool for every 3- and 4-year-old in the country.

In local news, Michael Szafranski will be taking a plea.  Paula McMahon broke the story:

A financial adviser accused of deceiving investors who lost millions in Scott Rothstein's $1.4 billion Ponzi scheme is expected to plead guilty to at least one criminal charge later this month, court records show.

Michael Szafranski, 37, of Surfside, is scheduled for a change-of-plea hearing July 29 in federal court in Fort Lauderdale.
Details of any plea agreement with federal prosecutors would not be made public until after the hearing with U.S. District Judge William Dimitrouleas.

Rothstein testified in depositions that Szafranski knew about his fraud. Prosecutors said Szafranski did not know Rothstein was running a Ponzi scheme, but Szafranski knew he and Rothstein were breaking the law.
Szafranski was indicted in February on one count of wire fraud conspiracy and 11 counts of wire fraud. Each of the charges carries a maximum punishment of 20 years in federal prison and fines, though he would likely receive a much lesser sentence.
His lawyers previously said Szafranski, who is free on $250,000 bond, planned to go to trial.

 

Hasn't Trump read Elonis v. United States?

Apparently, Trump and El Chapo are in a bit of a Twitter spa (from TMZ):

Trump is reacting to a tweet reportedly made by El Chapo's son, in which he blasts Trump for saying El Chapo is "everything that's wrong with Mexico."
The tweet was written in Spanish, with the rough English translation, "Keep f***ing around and I'm gonna make you swallow your bitch words you f***ing whitey milks***tter (that's a homophobic slur)."
Trump tells TMZ he's not backing down, saying, "I'm fighting for much more than myself. I'm fighting for the future of our country which is being overrun by criminals." He adds, "You can't be intimidated. It's too important." 

So Trump called the FBI.

I wonder if he has read Elonis.

In more important news, President Obama commuted a bunch of drug sentences.

Paula McMahon covers one of the local defendants who was on the list.

No jail for Beanie Babies tax fraudster

Judges are starting to speak out about the ridiculous guideline system we have and incarcerating first time non-violent offenders for no reason.  Here's the latest -- a 7th Circuit opinion affirming a non-jail term sentence for the billionaire owner of Beanie Babies in a very large tax fraud case:

Defendant H. Ty Warner, the billionaire creator of Beanie Babies, evaded $5.6 million in U.S. taxes by hiding assets in a Swiss bank account.  He pled guilty to one count of tax evasion, made full restitution, and paid a $53.6 million civil penalty.  The Sentencing Guidelines provided a recommended 46- to 57-month term of imprisonment, but the district judge gave Warner a more lenient sentence: two years’ probation with community service, plus a $100,000 fine and costs.  The government claims his sentence is unreasonable because it does not include a term of incarceration.
In a typical case, we might agree.  But this is not a typical case.  The district judge found Warner’s record of charity and benevolence “overwhelming.”  Indeed, the judge remarked that Warner’s conduct was unprecedented when viewed through the judge’s more-than-three decades on the bench.  In the district court’s opinion, this and other mitigating factors — including the uncharacteristic nature of Warner’s crime, his attempt to disclose his account, his payment of a penalty ten times the size of the tax loss, and the government’s own request for a sentence well below the guidelines range — justified leniency.  District courts enjoy broad discretion to fashion an appropriate, individualized sentence in light of the factors in 18 U.S.C. § 3553(a).  The court here did not abuse its discretion.  Rather, it fully explained and supported its decision and reached an outcome that is reasonable under the unique circumstances of this case.  We therefore affirm Warner’s sentence.

In other news, President Obama is going to see what federal prison is all about -- he's making a visit Oklahoma to see the federal prison there, a first for a sitting President:

President Barack Obama will become the first sitting chief executive to visit a federal prison when he goes to El Reno, Oklahoma, next week to meet with law enforcement officials and inmates as part of the administration’s push for criminal-justice reform.
“Next week, the president will underscore the administration’s focus on the need to reform and improve America’s criminal justice system,” White House press secretary Josh Earnest said during Friday’s news briefing.

Obama will speak to that on Tuesday when he addresses the NAACP conference in Philadelphia before stopping at the medium-security federal facility in Oklahoma on Thursday. According to the Federal Bureau of Prisons, the facility houses 1,301 inmates in all, including 248 at an adjacent minimum-security satellite camp.

Finally, a pro-se litigant won this appeal (via FloridaBulldog.org):

Every day, state prisoners flood Florida’s courts with appeals and pleadings about their cases that they’ve written themselves. Those pro se filings — Latin for “on his own behalf” — rarely get far.
This spring, however, an inmate sex offender serving a life sentence convinced the Fourth District Court of Appeal in West Palm Beach that a Broward judge erred when she failed to order prosecutors to explain potentially serious discrepancies about his Miranda rights warning form.
The state introduced the Miranda form as evidence at Charles D. Williams’ 1998 trial, but Williams contends the document was a fraud and that police forged his signature. For years, Williams and his family filed public records requests seeking to obtain a copy.
“After serving multiple requests to the Broward County Clerk and the State Attorney’s Office over a course of years, his brother finally obtained a copy of a Miranda waiver form,” says the unanimous order by a three-judge appeal panel. “The date on the form produced differed from the date on the form introduced at trial, and the signature on the form produced varied from the petitioner’s signature.”
The panel ordered Broward Circuit Judge Lisa Porter to require prosecutors and the clerk’s office to respond to the “factual issue of whether the form produced is the same as the form introduced at trial.” If the response doesn’t resolve the matter, Porter was instructed to “hold an evidentiary hearing.”
The court issued its mandate to Judge Porter on June 12 after denying a request for reconsideration by Florida Assistant Attorney General Richard Valtunas, who in previous court papers called Williams’ assertions “outlandish allegations of fraud and skullduggery.” The judge had not taken action as of Monday.

Book review Bum Rap by Paul Levine

If you're looking for a fun summer read, pick up Paul Levine's latest novel, Bum Rap. Miamians and those of you in the criminal justice system will enjoy it.

It takes place in Miami and the set-up is the B-girl case, which the blog covered in detail. You'll see lots of familiar places, including the Justice Building. And you'll also see lots of familiar names, including Roy Black and Levine's wife Marcia Silvers. I won't ruin it with all of the Miami references, which are fun to see as you go.

Good stuff!

11th reverses honest services conviction

Jury instructions were the cause in United States v. Aunspaugh:

This is an honest-services fraud case. On one view of the evidence, the defendants participated in a classic kickback scheme. On another view, the scheme involved an egregious conflict of interest but no kickback. Under Skilling v. United States, 561 U.S. 358 (2010), the defendants’ conduct constituted honest- services fraud only on the first view, not the second. Because the jury instructions would have allowed a conviction on either view of the evidence, we vacate the honest-services convictions. We also vacate other convictions that depend on the honest-services convictions. But we uphold convictions for structuring financial transactions not dependent on the honest-services convictions. 

The panel also said this about acceptance at the new sentencing:

We add one other note about sentencing. The Aunspaughs argue that the district court improperly inferred a lack of remorse because they chose not to plead guilty but remained silent instead. They argue that the court’s consideration of these things violated their constitutional rights. See, e.g., United States v. Rodriguez, 959 F.2d 193, 197 (11th Cir. 1992) (noting that a district court may weigh remorse in a defendant’s favor but must not “weigh against the defendant the defendant’s exercise of constitutional or statutory rights”). Because we remand for resentencing, we do not address this issue today. The district court should resentence the defendants without weighing against them their exercise of constitutional rights.

 

Unpublished, yet enbancworthy?

A few months ago we wrote about an Eleventh Circuit unpublished decision affirming a major upward variance for a relatively minor crime (though committed by a defendant with a lengthy criminal history). The panel’s decision not to publish the decision seemed “unusual,” and we suggested that, because it was unpublished, “the likelihood of en banc review is greatly reduced, for there is little reason for the full court to undertake the arduous process of reviewing a decision that doesn’t bind it or lower courts.”

Perhaps that view was overstated. Last week Fifth Circuit Judge Jerry E. Smith, joined by three of his colleagues, dissented from the denial of rehearing en banc of an unpublished decision reversing a district court’s denial of habeas relief. To Judge Smith, the “panel majority’s obvious error cries out for correction.” In his view, the “opinion is enbancworthy because, even though unpublished, it infects our entire habeas jurisprudence.”

The defendant’s lawyers in the Eleventh Circuit case filed a petition for rehearing en banc. Today, however, the petition was denied in a one-line order. It simply wasn’t enbancworthy.

***

In related news, the Eleventh Circuit last week affirmed the conviction and sentence of a former Rothstein Rosenfeldt Adler lawyer for her role in the Ponzi scheme. In affirming her 5-year sentence, Judge Linn, sitting by designation and writing for the court, ended the (unpublished) opinion this way:

The district court’s sentence of 60 months is also substantively reasonable. In this case, had there been no loss, the parties agree that the guidelines suggested a sentence of 8–14 months. The problem for Kitterman is that the guidelines are intended for normal cases and, for a number of reasons, her case is anything but. First, Kitterman impersonated an official of the Florida Bar. Second, as the district court explained, this case will put people on notice that if “they do a fraud, and at the time they do it, they don’t appreciate the consequences of that fraud, there will be consequences if they are apprehended.” Third, while it is perhaps impossible to estimate what value Kitterman ascribed to the Bar complaints, the district court was correct that “it would blatantly be wrong to say [the intended loss] had no value.” Thus, a zero loss here does not, as might normally be the case, suggest that Kitterman’s intent was less pernicious. Fourth, this case is unusual because, as the district court noted, Kitterman was a lawyer and should have appreciated that “what [she was] doing is wrong.” Fifth, Kitterman’s sentence is also justified by the fact that Steven Caputi—who posed as a banker to deceive investors but who also did not know about the Rothstein Ponzi scheme—received a similar sentence of five years. Finally, Kitterman’s sentence is significantly below the total statutory maximum of 60 years imprisonment for the three wire fraud convictions.