News You Can Use: PEW Releases Study on the Changing State of Recidivism

The share of people returning to state prison three years after being released—the most common measure of recidivism—dropped by nearly a quarter over a recent seven-year period, according to an analysis by The Pew Charitable Trusts of federal Bureau of Justice Statistics (BJS) data on prisoners released in 2005 and 2012. 

PEWgraph

Pew undertook this research to compile and make public the most current multistate data on recidivism trends. Determining causal relationships to explain the drop in recidivism rates was outside the scope of this analysis.

The Pew study is available here. The methodology used by Pew involved review of an administrative data set maintained by the National Corrections Reporting Program (NCRP).  NCRP compiles offender-level data on admissions and releases from state and federal prisons and post-confinement community supervision. The data are used to monitor the nation’s correctional population and address specific policy questions related to recidivism, prisoner reentry, and trends in demographic characteristics of the incarcerated and community supervision populations. BJS has administered the NCRP since 1983. 

 

ATTENTION CJA LAWYERS: Do Any Tenth Circuit Criminal Pattern Jury Instructions Need to be Revised?

The Tenth Circuit Criminal Pattern Jury Instructions are now being reviewed and revised for the next edition, forthcoming in 2019.

The Committee wants to hear from Federal Defenders and lawyers on the CJA Panel: which pattern instructions might need revision?

Please email your suggestions and comments with the subject line “Proposed Pattern Instruction Revision” to  AFPD Veronica Rossman by October 31, 2018.

News You Can Use: NACDL Releases “Trial Penalty” Report

After two years of research and study, the National Association of Criminal Defense Lawyers (NACDL) has released an important new report– The Trial Penalty: The Sixth Amendment Right To Trial on the Verge of Extinction and How To Save It.

The “trial penalty” refers to the significant delta between the sentence offered prior to trial versus the sentence a defendant receives after trial. There are some staggering, but not surprising, statistics in this Report: “in recent years fewer than 3% of federal criminal defendants chose to take advantage of one of the most crucial constitutional rights.” The Report identifies and exposes the underlying causes of the decline of the federal criminal trial. 

Here’s an excerpt:

“Criminal defense lawyers have long known that trials are vanishing. This is an unacceptable development, and not just because the art of trying a case is atrophying. The virtual elimination of the option of taking a case to trial has so thoroughly tipped the scales of justice against the accused that the danger of government overreach is ever-present. And on a human level, for the defense attorney there is no more heartwrenching task that explaining to client who very likely may be innocent that they must seriously consider pleading guilty or risk the utter devastation of the remainder of their life with incalculable impacts on family. This Report documents the corrosive effect of the trial penalty on the system of criminal justice. It examines the relationship between the trial penalty and numerous characteristics of modern criminal justice including virtually unfettered prosecutorial charging discretion, mandatory minimum sentencing statutes, and the federal Sentencing Guidelines. The Report highlights specific cases to demonstrate that individuals are being punished simply for holding the government to its burden of proof and, in some cases, that the trial penalty has coerced innocent individuals, later exonerated, to plead guilty for fear of devastating long posttrial sentences.”

Check out the whole thing here: NACDL Trial Penalty Report FINAL

 

Practice Tip: How to Tackle Implicit Bias in the Courtroom

If you think implicit bias in the courtroom may be at issue in your next federal trial, consider filing a motion, asking the court for permission to do the following:

(1) Use a case-specific juror questionnaire that includes questions geared towards uncovering racial prejudice and implicit bias;

(2) Play this Western District of Washington juror orientation video on implicit bias to potential jurors;

(3) Give a preliminary instruction to potential jurors about implicit bias (also based on the W.D. Wash. materials); and

(4) Permit 30 minutes of attorney-led voir dire, including questions based on the What Would You Do?

To learn more, check out these law review articles on implicit bias in the courts. 

Unraveling Knot of Implicit Bias in Jury Selection (implicit bias)

Implicit Bias in the Courtroom (implicit bias)

215 Motion for case-specific jury questionnaire (implicit bias)

 

 

Practice Tip: Federal Civil Pro Se Litigation Clinic Opens in the District Of Colorado

For our criminal clients with civil issues, check this out:

The Colorado Bar Association opened a federal civil pro se clinic at the end of June. 

The clinic will provide assistance to litigants with federal civil cases involving civil rights, labor and employment law, contracts, personal injury, and other areas of federal and state law.

Examples of the clinic’s services include:

  • Legal advice and counseling
  • Assisting litigants with formulating claims prior to filing
  • Interpreting and explaining rules and procedures
  • Reviewing and explaining motions and court orders
  • Assisting with pleadings and correspondence

One caveat: the clinic will not provide in court representation.

This clinic is located at the Alfred Arraj Courthouse (first floor) and appointments can be made here: http://www.cobar.org/cofederalproseclinic or at 303-380-8786. Walk-ins are also allowed.

News You Can Use: Currier v. Virginia – the latest from SCOTUS on Double Jeopardy

If you agree to severance of charges, you can’t invoke Double Jeopardy to stop the second trial from happening.

Facts: After an empty gun safe was found in a river, Michael Currier was charged with burglary, grand larceny, and felon-in-possession. To avoid prejudice from evidence of his felony coming in, Mr. Currier agreed to sever the counts: the burglary and grand larceny charges would be tried first, followed by a trial on the felon-in-possession charge. After Mr. Currier was acquitted at the first trial, he argued that holding the second trial would amount to Double Jeopardy because any felon-in-possession conviction would necessarily depend on issues found in his favor in the first trial: If he hadn’t stolen the guns from the safe, how could he have possessed them?

Issue: Whether a defendant who consents to severance of multiple charges into sequential trials loses his right under the Double Jeopardy Clause to the issue-preclusive effect of acquittal.

Holding: By consenting to severance of charges, Mr. Currier consented to the second trial and waived any right to invoke Double Jeopardy against it. As the majority reasoned, “the ‘prosecutorial or judicial overreaching’ forbidden by the Constitution” is not a concern “when a second trial follows” thanks to the defendant’s voluntary act. Slip op. at 7 (quoting United States v. Scott, 437 U.S. 82, 96, 99 (1978)).

Of Note: Justice Gorsuch’s majority opinion casts shade at the idea that the relitigation of a particular issue (e.g., whether Mr. Currier took guns from the safe) can ever support a claim of double jeopardy. That rule comes from a 1970 decision called Ashe v. Swenson, 397 U.S. 436 (1970), which held that the government violated the Double Jeopardy Clause by prosecuting the robbery of six poker players one victim at a time. As the Currier majority observes, “[s]ome have argued that [Ashe] sits uneasily with this Court’s double jeopardy precedent and the Constitution’s original meaning.” Slip op. at 4. With Kennedy off the Court, Ashe’s days may be numbered.

Takeaway: If you are thinking about requesting or consenting to severance of charges, consider the potential impact on any Double Jeopardy claims you may have down the line.

Further reading: To get further in the weeds of Double Jeopardy doctrine (it’s complicated!), check out the opinion analysis from SCOTUSblog

Currier v. Virginia

 

Practice Tip: How to Stay Updated via Email on Tenth Circuit Criminal Decisions

The Tenth Circuit publishes a daily email summarizing the criminal decisions, both published and unpublished, in the Tenth Circuit each day. To receive a daily email with Tenth Circuit cases, just contact Gregory Townsend Research and Reference Librarian at the Tenth Circuit, U.S. Courts Library, Albuquerque Branch, and ask to subscribe.