Sentencing Law and Policy

Recapping (incompletely) the SCOTUS argument week that was ... and looking ahead

I flagged in this post at the start of this week that the Supreme Court had a quartet of scheduled oral arguments on criminal issues.  Based on press reports, it seems that defendants/individuals had a pretty good week in court taking on the arguments from  prosecutors/state actors.  But, of course, we cannot know for sure who is truly victorious until we get opinions in a few months.  Here are links to various press stories suggesting where the Court seemed to be leaning in these cases:

Snyder v. US: "Supreme Court Poised to Cut Back Scope of Anti-Corruption Law"

Chiaverini v. City of Napoleon, Ohio: "Justices Wary Of Strict Limit On Malicious Prosecution Cases"

Fischer v. US: "Supreme Court gives skeptical eye to key statute used to prosecute Jan. 6 rioters"

Thornell v. Jones: "High Court Weighs New Sentence for Arizona Death Row Inmate"

Next week's six scheduled Supreme Court arguments are not exclusively crminal matters, but there are two big crime-related cases in the bunch.  On Monday, the Court takes up Eighth Amendment issues in City of Grants Pass v. Johnson and Presidential immunity issues in Trump v. United States.  I am inclined to guess that the Justices will have some more affinity for arguments from prosecutors/state actor in these cases as compared to those cases heard this past week.  But we shall see.

Notable criminal justice counter-initiative looking likely to come before California voters

As reported in this local article, headlined "Backers say they have enough signatures to qualify Prop 47 rollback initiative," an interesting criminal justice ballot measure looks likely to come before California voters this fall.  Here are some of the details:

Critics who blame California’s 2014 Proposition 47 for runaway drug addiction, retail theft and urban squalor said Thursday they have collected enough signatures to qualify a November ballot measure that would restore penalties for serial thieves and treatment requirements for addicts.

Backers including owners of small businesses, social justice leaders and drug victim families gathered in San Francisco and Los Angeles to announce they have collected about 900,000 voter signatures, significantly more than the 546,651 required by April 23, and are turning them in to the Attorney General’s Office.

“Prop 47 achieved notable success in making California’s criminal justice system more equitable,” supporters of the proposed Homelessness, Drug Addiction and Theft Reduction Act. "However, it led to unintended consequences over the past decade — repeat and often organized retail theft, inner-city store closings, and difficulty convincing people to seek drug and mental health treatment — that can only be corrected by the voters at the ballot box with modest amendments to Prop 47.”

Prop 47 was among a series of laws and initiatives over the last 15 years aimed at depopulating overcrowded California prisons and addressing social justice concerns that have since been blamed for spurring brazen retail thefts, store closures and unchecked drug addiction. Promoted to voters as the “Safe Neighborhood and Schools Act,” Prop 47 reduced most drug possession and property crimes valued at $950 or less to misdemeanors and allowed for resentencing of those convicted of felonies for those offenses....

Prop 47 passed with nearly 60% voter approval.  An earlier effort to toughen up some of the penalties reduced by Prop 47 — Proposition 20 in 2020 — failed.  The impact on crime of Prop 47 continues to be furiously debated....  But supporters of the proposed November initiative say there’s no way to fix the state’s theft and drug problems without walking back parts of Prop 47....

Supporters stress that the proposed initiative would amend but not repeal Prop 47. It would make a third conviction for retail theft a felony, regardless of the amount stolen.  Before Prop 47, a second conviction would become a felony, but the 2014 initiative eliminated consequences for repeat offenses.  The proposed measure also would add penalties for dealing fentanyl, a cheap and deadly synthetic opioid, and provide incentives for convicted addicts to seek treatment.

"The Secret History of the Carceral State"

The title of this post is the title of this new article authored by Laura Appleman recently posted to SSRN. Here is its abstract:

Profits have long played a critical role in the administration of punishment in America.  This Article provides one of the first full-length historical accounts of how the pursuit of private profits has shaped the American carceral system over time. It argues that deriving profits from punishment has been a crucial and formative aspect of American carcerality since our earliest days.  Although most scholars have focused on convict leasing in the postbellum era as the first major example of private prison profiteering, this Article shows how a predatory for-profit system of punishment well predates this, originating in the colonial era. The story of American corrections, fully told, reveals four distinct transformative periods over the nearly five-century evolution of American incarceration, ultimately explaining the condition of today’s carceral state.

In addition to providing a broader and more complete historical perspective, this Article also explains how the most recent inroads of privatized, for-profit correctional entities have overtaken the contemporary workings of the carceral system, causing chaos, abuse, and death.  The Article details the mechanisms through which seeking profits from incarceration has led to objectively worse conditions and outcomes for the punished.  Given the now widespread privatization and corporate takeover of so many aspects of the carceral state, from healthcare to food services and beyond, it is well past time to question the role of “Big Capital.”  This Article shines a light on the forgotten history of the American carceral crisis, tracing the role of profits from colonial days to the 21st century.

Ugly stories of federal prison management continue as "rape club" FCI-Dublin gets shut down

I have blogged before about only some of the ugly details surrounding the Federal Correctional Institution (FCI) Dublin in California, where sexual abuse of incarcerated women was so rampant that the facitlity garnered the nickname "rape club." This week brought a number of new developments to the ugly stories of FCI-Dublin, which seem to be on-going and are partially summarized in this recent AP piece:

The planned closure of a federal women’s prison in California notorious for staff-on-inmate sexual abuse won’t occur before each inmate’s status has been reviewed, with an eye toward determining who will be transferred elsewhere or released, authorities say.  Following the Bureau of Prison’s sudden announcement Monday that FCI Dublin would be shut down, a judge ordered an accounting of the casework for all 605 women held at the main lockup and its adjacent minimum-security camp.

A special master recently assigned to oversee the troubled prison will review the casework and “ensure inmates are transferred to the correct location,” U.S. District Court Judge Yvonne Gonzalez Rogers wrote in her order.  “This includes whether an inmate should be released to a BOP facility, home confinement, or halfway house, or granted a compassionate release.”

Advocates have called for inmates to be freed from FCI Dublin, which they say is not only plagued by sexual abuse but also has hazardous mold, asbestos and inadequate health care.  They also worry that some of the safety concerns could persist at other women’s prisons. “There are survivors of sexual assault that are still at Dublin. And the idea that BOP could just transfer them to some other far-off place without care ... it’s just abhorrent to me,” said Susan Beaty, an attorney for inmate whistleblowers who exposed the abuse and corruption....

A 2021 Associated Press investigation exposed a “rape club” culture at the prison where a pattern of abuse and mismanagement went back years, even decades.  The Bureau of Prisons repeatedly promised to improve the culture and environment — but the decision to shutter the facility represented an extraordinary acknowledgment that reform efforts have failed.  “Despite these steps and resources, we have determined that FCI Dublin is not meeting expected standards and that the best course of action is to close the facility,” Bureau of Prisons Director Colette Peters said in a statement to AP.  “This decision is being made after ongoing evaluation of the effectiveness of those unprecedented steps and additional resources.”

Groups representing inmates and prison workers alike said the imminent closure shows that the bureau is more interested in avoiding accountability than stemming the problems....

Last August, eight FCI Dublin inmates sued the Bureau of Prisons, alleging the agency had failed to root out sexual abuse at the facility about 21 miles (35 kilometers) east of Oakland.  It is one of six women-only federal prisons and the only one west of the Rocky Mountains.  Lawyers for the plaintiffs said inmates continued to face retaliation for reporting abuse, including being put in solitary confinement and having belongings confiscated.  They said the civil litigation will continue.

Last month, the FBI again searched the prison and the Bureau of Prisons again shook up its leadership after a warden sent to help rehabilitate the facility was accused of retaliating against a whistleblower inmate.  Days later, a federal judge overseeing lawsuits against the prison, said she would appoint a special master to oversee the facility’s operations.

The AP investigation found a culture of abuse and cover-ups that had persisted for years. That reporting led to increased scrutiny from Congress and pledges from the Bureau of Prisons that it would fix problems and change the culture at the prison.  Since 2021, at least eight FCI Dublin employees have been charged with sexually abusing inmates. Five have pleaded guilty. Two were convicted at trial, including the former warden, Ray Garcia. Another case is pending.

"Redeemable Fines: Overcoming the Crisis of Overincarceration"

The title of this post is the title of this new paper authored by Gideon Parchomovsky and Alex Stein now available via SSRN.  Here is its abstract:

In this Essay, we introduce a new mechanism uniquely designed to achieve rehabilitation of offenders and improve the criminal justice system: the redeemable fine.  A redeemable fine is a monetary penalty that will be returned to the offender — in installments or, in exceptional cases, in one payment — over a certain period so long as she or he commits no further crimes.  Unlike traditional fines, redeemable fines can be structured in a myriad of ways to provide individually tailored optimal rehabilitative incentives for offenders.  First, the installment period of the repayment can be short (several months) or long (several years), depending on the characteristics of the offense and the offender. Second, there is the frequency of the payments.  The payment intervals can be long, short, intermediate or variable.  The sentencing judge will be able to order that the repayments will be made annually, every six months, every single month or, in exceptional cases, in one installment on the successful completion of the rehabilitation.  As with traditional fines, the redeemable fine’s amount will correlate with the seriousness of the offender’s misdeed.  For these and other reasons, introduction of redeemable fines can dramatically reduce the rates and the costs of incarceration and render the criminal justice system fairer and more humane, while providing meaningful incentives for offenders not to commit further offenses.

US Sentencing Commission votes to promulgate guideline amendment to limit use of acquitted conduct in guideline calculations

At a public meeting this afternoon, the US Sentencing Commission voted to promulgate a number of notable new guideline amendments, including perhaps most notably an amendment to preclude the consideration of acquitted conduct in guideline calculations.  The Commission's vote on this acquitted conduct amendment appeared to be unanimous, but then there seemed to be some dissention about whether to conduct a data analysis and seek public comment on whether to make this acquitted conduct amendment retroactive.  The retroactivity analysis for the acquitted conduct amendment did get majority support, and I will be very interested to see what the USSC's data shows as to how many persons are currently imprisoned as a result of acquitted conduct guideline enhancements.

A lot more got done by the USSC at its public meeting this afternoon, and I hope to update this post with some of the official announcements from the Commission about its work later this afternoon.

UPDATE:  Here is the full text of this press release that the US Sentencing Commission just posted to its website under the heading "Commission Votes Unanimously to Pass Package of Reforms
Including Limit on Use of Acquitted Conduct in Sentencing Guidelines":

The bipartisan United States Sentencing Commission voted unanimously today to prohibit conduct for which a person was acquitted in federal court from being used in calculating a sentence range under the federal guidelines. The Commission’s seven members also joined together to pass a range of additional reforms, including those that bring uniformity to sentencing for certain gun and financial crimes and provide a potential downward departure based on age. “The reforms passed today reflect a bipartisan commitment to creating a more effective and just sentencing system,” said Commission Chair Judge Carlton W. Reeves. Watch the public meeting.

“Not guilty means not guilty,” said Chair Reeves. “By enshrining this basic fact within the federal sentencing guidelines, the Commission is taking an important step to protect the credibility of our courts and criminal justice system.” This reform comes amid robust debate on acquitted conduct from across the country.  Last year, several Supreme Court Justices called for the Commission to address acquitted conduct, while a bipartisan group of legislators in Congress introduced a bill limiting the use of acquitted conduct in sentencing.

In addition to limiting the use of acquitted conduct, the Commission revised its policy statement on age, permitting judges to downward depart based on age if appropriate in light of today’s richer understanding of the science and data surrounding youthful individuals, including recognition that cognitive changes lasting into the mid-20s affect individual behavior, culpability and the age-crime curve.  The Commission also moved commentary regarding the definition of “loss” to the body of the fraud, theft, and property destruction guideline to ensure courts uniformly calculate loss amounts.  And the Commission addressed a circuit conflict over how to properly punish crimes involving weapons with altered or obliterated serial numbers.

These and all other amendments passed by the Commission today will be posted here.  The Commission will deliver amendments to Congress by May 1, 2024.  If Congress does not act to disapprove the changes, they will go into effect on November 1, 2024.

SCOTUS rules unanimously that federal forfeiture errors as subject to harmless-error review

The Supreme Court handed down one opinion in a criminal case this morning in US v. McIntosh, No. 22–7386 (S.Ct. Apr. 17, 2024) (available here).  This case was argued just over six weeks ago, and anyone who listened to the oral argument would have predicted this shiny apple result.  Here is how the Court's opinion, authored by Justice Sotomayor, gets started:

In certain criminal cases, Congress has authorized the Government to seek forfeiture of a defendant’s ill-gotten gains as part of the defendant’s sentence.  Federal Rule of Criminal Procedure 32.2 sets forth specific procedures for imposing criminal forfeiture in such cases.  In particular, Rule 32.2(b)(2)(B) provides that, “[u]nless doing so is impractical,” a federal district court “must enter the preliminary order [of forfeiture] sufficiently in advance of sentencing to allow the parties to suggest revisions or modifications before the order becomes final as to the defendant.”

The question presented in this case is whether a district court that fails to comply with Rule 32.2(b)(2)(B)’s requirement to enter a preliminary order before sentencing is powerless to order forfeiture against the defendant.  In light of the Rule’s text and relevant precedents, this Court holds that the failure to enter a preliminary order does not bar a judge from ordering forfeiture at sentencing subject to harmless-error principles on appellate review.

Senator Kennedy introduces "Consensus in Sentencing Act" to increase USSC votes needed for guideline amendments

A helpful colleague alerted me to this fascinating new press release from the office of US Senator John Kennedy discussing the introduction of some fascinating new proposed legislation.  Here are the details from the press release reprinted here in full:

WASHINGTON – Sen. John Kennedy (R-La.), a member of the Senate Judiciary Committee, today introduced the Consensus in Sentencing Act to require the U.S. Sentencing Commission to achieve bipartisan agreement to make major policy changes.

The legislation would amend 28 U.S.C. § 994(a) to require that amendments to the Sentencing Guidelines receive five votes from the Commission’s seven voting members. 

“The Sentencing Commission for decades strove to achieve bipartisan agreement when adopting amendments to the Sentencing Guidelines. In recent years, the Commission has lost its way and begun forcing through amendments on party-line votes. My bill would help the Sentencing Commission revive its consensus-building culture,” said Kennedy. 

Background: 

• The Sentencing Commission is made up of seven voting members. No more than four members can belong to the same political party. 

• In a sharp break from its traditional bipartisan practices, the Commission’s current leadership has forced through several major policy changes to federal sentencing law on a party-line basis.

• The Commission is currently considering several other major proposed changes.

Sens. Ted Cruz (R-Texas), John Cornyn (R-Texas), Tom Cotton (R-Ark.) and Marco Rubio (R-Fla.) cosponsored the legislation.

Full text of the Consensus in Sentencing Act is available here. 

I am pretty sure that recent US Sentencing Commission votes on a 4-3 basis were the adoption of the new sentence reduction (compassionate release) guidelines and the decision to make new criminal history rules retroactive. I believe all other actions by the current Commission have been unanimous, but I am not entirely sure about all vote tallies.

This bill has been introducted the day before the Commission is scheduled to conduct a public meeting with an agenda that includes "Vote to Promulgate Proposed Amendments."  The timing here cannot be pure coincidence, and I wonder if we should now expect some split votes (or not expect split votes) on some of these proposed amendment topics (eg, perhaps there is an proposed amendment on acquitted conduct that is driving controversy beyond the wall of the USSC building and all the way up to Capitol Hill).

I doubt that this bill to require five votes for guideline amendments will get enacted anytime soon, if ever.  But the bill's very introduction highlights that this active new Commission is garnering notable attention for its notable activity.

"Apprendi, Punishment, and a Retroactive Theory of Revocation"

The title of this post is the title of this student note in the March 2024 Yale Law Journal authored by Jaewon Chris Kim that I just came across. Here is its abstract:

In Apprendi v. New Jersey, the Supreme Court announced what is now a seminal rule of constitutional criminal procedure: any fact that increases the penalty for a crime beyond the prescribed statutory maximum cannot be found by a judge, but must be submitted to a jury and proved beyond a reasonable doubt.  The doctrine arising from Apprendi and its descendant cases had, until recently, been confined to the sentencing context.  But in 2019, the Court in United States v. Haymond considered a potential expansion of Apprendi to judicial revocations of federal supervised release.  The Court ultimately handed down a 4-1-4 decision with minimal precedential value, but since then, there has been a swell of scholarship discussing the applicability of the jury right to this new context.  Much of this discussion has centered around the questions of constitutional interpretation raised by Haymond, and whether a revocation proceeding is part of a “criminal prosecution” as specified by the text of the Sixth Amendment.

This Note argues for a different approach.  Revisiting the Apprendi cases and their contemporary scholarly treatment reveals that the doctrine was rooted not in novel methods of textual interpretation, but in fundamental principles of substantive criminal law: what constitutes “crime” and “punishment.”  Existing scholarship has not provided an answer to how these principles might apply to a function that takes place after sentencing and final judgment, like revocation of supervised release.  I therefore introduce a retroactive theory of revocation that rationalizes Apprendi’s definition of crime and punishment within this context.  Under this theory, revocation proceedings are unconstitutional not because they are directly covered by the Sixth Amendment right to a jury trial, but because they circumvent a person’s original jury trial by allowing them to be “punished” for a different “crime.”  This means that every revocation of supervised release violates Apprendi.  Moreover, the retroactive theory suggests that other forms of post-judgment penalties, like extensions of probation and criminal fees, can similarly run afoul of the Sixth Amendment’s protections. 

Latest accounting of Jan 6 prosecutions and sentences

The Supreme Court heard oral argument today in Fischer v. US to consider the reach of a federal criminal statute used to prosecute some of the January 6 Capitol rioters.  Press reports suggest a number of the Justices were skeptical of how the Justice Department was seeking to apply federal criminal law.  I hope to comment on this front after I have a chance to listen to the oral argument.  In the meantine, the Washington Post has this new article with an up-to-date accounting of just how many persons have been subject to prosecution thanks to the events of Januarry 6.  Here are excerpts:

The investigation of the Jan. 6, 2021, Capitol attack is already the largest criminal inquiry in Justice Department history, federal prosecutors have said. And even after more than three years, it has shown little sign of slowing down.

Every week, a few more rioters are arrested and charges against them are unsealed in Federal District Court in Washington. Prosecutors have suggested that a total of 2,000 or 2,500 people could ultimately face indictment for their roles in the attack.

More than 1,380 people had been charged in connection with the attack as of early this month, according to the Justice Department. Among the most common charges brought against them are two misdemeanors: illegal parading inside the Capitol and entering and remaining in a restricted federal area, a type of trespassing.

About 350 rioters have been accused of violating the obstruction statute that the Supreme Court is considering at its hearing, and nearly 500 people have been charged with assaulting police officers. Many rioters have been charged with multiple crimes, the most serious of which so far has been seditious conspiracy.

Almost 800 defendants have already pleaded guilty; about 250 of them have done so to felony charges. Prosecutors have won the vast majority of the cases that have gone to trial: More than 150 defendants have been convicted at trial and only two have been fully acquitted.

More than 850 people have been sentenced so far, and about 520 have received at least some time in prison. The stiffest penalties have been handed down to the former leaders of the Proud Boys and Oath Keepers, far-right extremist groups that played central roles in the Capitol attack.

"50 States, 1 Goal: Examining State-Level Recidivism Trends in the Second Chance Act Era"

The title of this post is the title of this new report from the Council of State Governments Justice Center providing a positive accounting of recidivism trends in the states over the past 15 years. Here is how the report is briefly summarized:

This report highlights the significant progress made in reducing recidivism across the country over the past 15 years. Since its passage in 2008, the Second Chance Act has invested in state and local efforts to improve outcomes for people leaving prison and jail, with a total of nearly 1,200 grantees from 48 states and 3 territories administering programs that have served more than 400,000 people.

Here are some of the recidivism specifics from the full report:

Since the passage of the Second Chance Act in 2008, more and more state and local leaders have made recidivism reduction a public safety priority, pursuing a variety of strategies that are starting to show real results....  Our findings reveal that recidivism rates have dropped considerably in the past 15 years:

• Three-year reincarceration rates have decreased by 23 percent nationally since the passage of the Second Chance Act.
• Thirty-five percent of people exiting prison in 2008 were reincarcerated within 3 years, whereas 27 percent of people exiting prison in 2019 were reincarcerated within 3 years.
• If this lower rate of recidivism is sustained for people released in 2022, it would mean that 33,500 fewer people will be reincarcerated compared with the rate from 2008.

Three-quarters of states experienced a reduction in reincarceration. Before the passage of the Second Chance Act, 11 states had 3-year reincarceration rates above 45 percent, compared to 6 states with similarly high reincarceration rates in the last few years.  Recidivism rates dropped by double digits in 9 states: California, Colorado, Connecticut, Delaware, Illinois, Maryland, Massachusetts, Missouri, and South Carolina.

US Senate Judiciary Committee hearing set for "Legacy of Harm: Eliminating the Abuse of Solitary Confinement

Tomorrow morning, Tuesday, April 16, 2024, the US Senate Judiciary Committee has a hearing set for 10am titled "Legacy of Harm: Eliminating the Abuse of Solitary Confinement."  The hearing should be available to stream at this link, where this list of witnesses are set out:

Roy Boyd, Sheriff, Goliad County Sheriff’s Office, Goliad, TX

Katherine R. Peeler, MD, MA, Assistant Professor of Pediatrics; Medical Expert, Physicians for Human Rights, Harvard Medical School

Nicole Davis, Executive Director, Talk2Me Foundation

Gretta L. Goodwin, Director, Homeland Security and Justice, Government Accountability Office

Though I am not familiar with the work of these witnesses, the names of some of the organizations and the very title of the hearing certainly suggests that there will be considerable advocacy against solitary confinement.

"Rust" movie armorer convicted of manslaughter in New Mexico gets maximum prison term of 18 months in state prison

I asked in this post last month what folks thought would be the proper state sentence for the "Rust" movie armorer who was convicted of manslaughter in New Mexico.  This CBS News piece reports at length on the outcome of the actual sentencing (and the broader context of this high-profile case).  Here are excerpts:

The "Rust" armorer who last month was found guilty of involuntary manslaughter in the deadly shooting of Halyna Hutchins, the film's cinematographer, was sentenced in a New Mexico state court today to 18 months' imprisonment. Hannah Gutierrez-Reed received the maximum penalty for her part in the 2021 tragedy that several experts have since characterized as a preventable incident, where actor Alec Baldwin discharged live rounds from a prop gun on the movie set during a rehearsal.

Judge Mary Marlowe Sommer handed down the sentence to conclude an emotionally charged hearing Monday. "I find what you did constitutes a serious violent offense," Sommer told Gutierrez-Reed. Although the prosecution pushed for this outcome — the maximum sentence — Gutierrez-Reed and her defense team had asked the judge to consider probation as an alternative. The defendant, who is now 27, raised that request herself in a statement read in court before the sentence came down. In the statement, she called Hutchins an inspiration and said she was saddened by the media coverage of her case and the negative light in which it painted her to the public....

The prosecution had cited Gutierrez-Reed's lack of contrition during the trial as one reason to impose the maximum sentence. But her attorney, Jason Bowles, said in his final remarks at the sentencing that his client had in fact cried, broken down, experienced "mental breakdowns" and "said 'if only' many, many, many times," with that side of her remaining largely unfamiliar to people following the case....

Last month, a jury convicted Gutierrez-Reed on the involuntary manslaughter charge, brought against her by the state of New Mexico in the wake of the "Rust" shooting. The former weapons supervisor on the Western film could also receive a fine for as much as $5,000, along with prison time, at the sentencing. She had originally been charged with a second felony count by the state for evidence tampering but was acquitted at the trial.

I am not at all familiar with New Mexico's back-end release rules, so I am not sure Gutierrez-Reed will serve a full 18 months (and I believe she has already been in custody for a month). But I am sure this case serves as an intereting reminder that maximum sentencing terms can sometimes prove as consequential as minimum sentencing terms.

Prison Policy Initiative releases new briefing with new data and visuals on modern jail growth

Emily Widra of the Prison Policy Initiative has authored tbis new briefing titled "New data and visualizations spotlight states’ reliance on excessive jailing."  The subtitle provides context: "We've updated the data tables and graphics from our 2017 report to show just how little has changed in our nation's overuse of jails: too many people are locked up in jails, most detained pretrial and many of them are not even under local jurisdiction."   Here is how the report starts (with links from the original, but footnotes omitted):

One out of every three people behind bars is being held in a local jail, yet jails get almost none of the attention that prisons do. In 2017, we published an in-depth analysis of local jail populations in each state: Era of Mass Expansion: Why State Officials Should Fight Jail Growth. We paid particular attention to the various drivers of jail incarceration — including pretrial practices and holding people in local jails for state and federal authorities — and we explained how jails impact our entire criminal legal system and millions of lives every year. In the years since that publication, many states have passed reforms aimed at reducing jail populations, but we still see the same trends playing out: too many people are confined in local jails, and the reasons for their confinement do not justify the overwhelming costs of our nation’s reliance on excessive jailing.

People cycle through local jails more than 7 million times each year and they are generally held there for brief, but life-altering, periods of time. Most are released in a few hours or days after their arrest, but others are held for months or years, often because they are too poor to make bail. Fewer than one-third of the 663,100 people in jails on a given day have been convicted and are likely serving short sentences of less than a year, most often for misdemeanors.  Jail policy is therefore in large part about how people who are legally innocent are treated, and how policymakers think our criminal legal system should respond to low-level offenses.

A couple of capital case dissents from denials of cert in latest SCOTUS order list

Though SCOTUS has a week full of criminal case oral arguments, it has been many months since the Justices granted cert in a criminal case.  Then again, it has been months since SCOTUS has granted cert in any case, and that trend did not change today with the release of this new order list.  But this latest order list did include a couple o dissents from the denial of cert in two capital cases.

In Michaels v. Davis, No. 23–5038, a capital case from California, Justice Jackson dissented from the denial of cert to complain about the harmfulness of the admission of a confession that was illegally obtained.  Here is a portion from the start of her four-page dissent:

In this capital case, the Ninth Circuit failed to exercise the required degree of caution. The divided panel assessed a 2-1⁄2-hour illegally obtained confession filled with disturbing details of a horrific crime like it was a compilation of factual information — no different from evidence introduced by other means.  That was legal error. Therefore, I would grant the petition and summarily reverse the Ninth Circuit’s decision as to the penalty phase, in order to facilitate a reassessment that involves the necessary rigor.

In Compton v. Texas, No. 23–5682, a capital case from Texas, Justice Sotomayor, joined by Justice Jackson, dissented from the denial of cert to complain about the way a Texas court reviewed the exercise of preemptory challenages in jury selection  Here is a portion from the start of her eight-page dissent:

In this capital case, prosecutors used 13 of their 15 peremptory strikes on women.  They offered only one justification in each case: the woman’s views on the death penalty. In reviewing the challenged jurors, the Texas Court of Criminal Appeals (TCCA) failed to conduct a side-by-side comparison.  Instead, it tested the prosecution’s justification in the aggregate, looking to the women’s views on capital punishment as a group instead of individually.  That legal error hid the best indication of discriminatory purpose.  Under a side-by-side comparison, it is clear that at least one woman struck by the State had more favorable views on the death penalty than at least one man the State did not strike.  I would summarily vacate the decision below and remand for the TCCA to apply the proper comparative analysis.

Lots of criminal justice issues this week at SCOTUS oral arguments

The Supreme Court gets back to hearing oral arguments on Monday, as it begins an April sitting full of notable criminal cases.  Next week brings argument on the notable Eighth Amendment Grants Pass case (recently discussed here), as well as Trump v. US to consider claims of presidential immunity.  But this week's arguments, all of which involve criminal issues, might lead to rulings that are quite consequential.  Here is what's coming, thanks to SCOTUSblog summaries:

 

Snyder v. U.S., No. 23-108 [Arg: 4.15.2024]

Issue(s): Whether section 18 U.S.C. § 666(a)(1)(B) criminalizes gratuities, i.e., payments in recognition of actions a state or local official has already taken or committed to take, without any quid pro quo agreement to take those actions.

 

Chiaverini v. City of Napoleon, Ohio, No. 23-50 [Arg: 4.15.2024]

Issue(s): Whether Fourth Amendment malicious-prosecution claims are governed by the charge-specific rule, under which a malicious prosecution claim can proceed as to a baseless criminal charge even if other charges brought alongside the baseless charge are supported by probable cause, or by the “any-crime” rule, under which probable cause for even one charge defeats a plaintiff’s malicious-prosecution claims as to every other charge, including those lacking probable cause.

 

Fischer v. U.S., No. 23-5572 [Arg: 4.16.2024]

Issue(s): Whether the U.S. Court of Appeals for the District of Columbia Circuit erred in construing 18 U.S.C. § 1512(c), which prohibits obstruction of congressional inquiries and investigations, to include acts unrelated to investigations and evidence.

 

Thornell v. Jones, No. 22-982 [Arg: 4.17.2024]

Issue(s): Whether the U.S. Court of Appeals for the 9th Circuit violated this court’s precedents by employing a flawed methodology for assessing prejudice under Strickland v. Washington when it disregarded the district court’s factual and credibility findings and excluded evidence in aggravation and the state’s rebuttal when it reversed the district court and granted habeas relief.

Another accounting of remarkable homicide declines to start 2024 (after big declines in 2023)

The Wall Street Journal has this new piece, headlined "Homicides Are Plummeting in American Cities," that covers in some new ways the remarkable homicide data emerging from cities (which I flagged here a few weeks ago).  Here are excerpts (to go along with some notable charts and graphs in the WSJ piece):

Homicides in American cities are falling at the fastest pace in decades, bringing them close to levels they were at before a pandemic-era jump.  Nationwide, homicides dropped around 20% in 133 cities from the beginning of the year through the end of March compared with the same period in 2023, according to crime-data analyst Jeff Asher, who tabulated statistics from police departments across the country.

Philadelphia saw a 35% drop in killings as of April 12 compared with the same period last year, police data show. In New York City, homicides fell 15% through April 7. Homicides in Columbus, Ohio, plunged 58% through April 7. And Boston had just two homicides this year as of March 31, compared with 11 over the same time frame last year.

The drop is an acceleration of a trend that began last year, following a surge in the number of homicides during the Covid-19 pandemic. The declines so far in 2024, on top of last year’s drop, mirror the steep declines in homicides of the late 1990s....

If the trend continues, the U.S. could be on pace for a year like 2014, which saw the lowest homicide rate since the 1960s.  But police officials and researchers cautioned that crime trends aren’t always consistent and future homicide rates are difficult to predict.  Some cities, like Denver, Los Angeles, and Portland, Ore., reported rises in homicides as of early April, Asher’s data show.  But such increases are outliers.  More typical is Baltimore, where homicides have declined 30% so far this year.

During the pandemic, homicide rates shot up around the country, sparking concerns that the progress made during a decadeslong drop in violent crimes had been undone.  The number of homicides in the U.S. rose nearly 30% in 2020 from the prior year to 21,570, the largest single-year increase ever recorded by the Federal Bureau of Investigation.

Researchers and authorities attributed the upward spike to several factors, including crime-prevention programs, courts and prisons being unable to operate normally when Covid was spreading; young people not in school due to shutdowns; and law enforcement pulling back after social unrest following the high-profile police killings of George Floyd and other Black people....

Now, police are more engaged and departments are working to hire more officers. Community-based crime prevention programs have resumed. And nationwide social unrest has cooled....

In some cities, the homicide decline has been accompanied by a reduction in property crime as well.  San Francisco, where property crime has been a huge problem in recent years, has recorded decreases in burglaries, robberies, larceny thefts and motor vehicle thefts so far in 2024.  The city has also seen nine homicides as of April 7, compared with 13 during the same period in 2023.

Crime researchers have been particularly struck by the drops in cities that have been the most plagued with violent crime in recent years, like New Orleans. In the first half of 2022, it had the highest homicide rate of any major U.S. city, according to a Wall Street Journal analysis of crime data. Through April 10 of this year, the number of killings dropped 39% from the same period in 2023.

As I noted in my prior post, it strikes me as notable that the 2023 and 2024 declines in homicide come at a time of relatively little use of the death penalty and relatively lower rates of incarceration by modern US standards. The 1990s involved a significant uptick in death sentences, executions and incarceration rates across the US; the 2020s have seen declines in all these punishment metrics. (Let me state again that I generally doubt that punishment trends alone directly account for homicide trends in any direction.)

A few prior related posts on recent crime trends:

• FBI releases crime estimates showing "national violent crime decreased an estimated 1.7% in 2022 compared to 2021"
• Council on Criminal Justice releases new report, "Trends in Homicide: What We Know" 
• Latest CCJ accounting covers "Crime Trends in U.S. Cities: Year-End 2023 Update" 
• Encouraging FBI data now provides fuller picture of 2023 crime declines 
• Intriguing new accounting of recent crime trends and related data 
• Encouraging homicide data as the first quarter of 2024 comes to a close

New study highlights appellate reversals of excessive sentences in New York

This lengthy Law360 article, headlined "Study Shines Light On Excessive NY Prison Sentences," reports on an interesting recent student about sentencing reversals in New York.  Here are excerpts:

A recent report shining a light on excessive felony prison sentences handed down by more than 140 trial judges in New York over a 16-year period has experts and advocacy groups calling for increased transparency to help ensure that courts are imposing fair penalties on criminal defendants in the Empire State.

The study by judicial accountability nonprofit Scrutinize, in partnership with the New York University School of Law's Center on Race, Inequality, and the Law, found that at least 140 trial judges in the state imposed prison sentences that were later deemed excessive on intermediary criminal appeal.  Of those, 65 judges saw sentencing decisions overturned on more than one occasion.  The 12 judges with five or more excessive sentence findings, meanwhile, had their sentences reduced by a total of 1,246 years.

The organizations urged the state judiciary to release sentencing data for individual judges that are currently not public, information they said could reveal patterns of oversentencing, and to publish an annual report summarizing excessive sentence findings to keep track of those trends....

According to the study, which looked at cases originating from the five counties of New York City and Nassau, Suffolk, Westchester, Orange, Rockland, Dutchess, and Putnam counties, two judges, Edward J. McLaughlin and Vincent Del Giudice, had a total of 39 excessive sentence findings combined, with the appellate court cutting a total of 684.5 years from the sentences they imposed. Justice McLaughlin, who presided over criminal matters in Manhattan, is now retired. Justice Del Giudice still hears criminal cases in Brooklyn.

According to the report, between 2014 and 2022, an average of 19,930 felony cases each year ended with a conviction after a guilty plea or a jury trial verdict.  In 2022, felony dispositions were nearly 15,800, but there were only about 1,100 appeals filed.  And, as acknowledged by the report's authors themselves, only a fraction — about 4% — of felony sentences are reduced for excessiveness on appeal.  That means that looking at overruled sentences provides an incomplete picture of judges' carceral attitudes.

The full study, which is titled "Excessive Sentencers: Using Appellate Decisions to Enhance Judicial Transparency," is available at this link. Here is its executive summary:

Increased focus on state judiciaries has significant potential to improve the criminal legal system.  Recognizing the need for evaluation metrics for judges, this report pioneers a data-driven, evidence-based approach to assessing the judiciary.  We analyze written appellate decisions to quantify individual trial court judges' decisions and impacts.  This methodology transforms complex judicial texts into accessible data, creating metrics of judicial performance for use by policymakers and the public.

This report introduces ‘excessive sentence findings’ as a method to assess individual judges’ decisions and their impact.  In New York, appellate courts review sentences for excessiveness and can reduce them in the “interest of justice,” a rare and clear signal — from highly-respected institutional actors — that a lower court judge made an exceptionally troubling choice.  We identify lower court judges with sentences reduced by appellate courts for being excessive and calculate the total number of years reduced from those sentences.

The study reveals patterns of repeated excessive sentencing by a number of specific judges, raising questions about judicial accountability in New York.

"State Sentencing Reforms Had Little Impact on Racial Disparities in Imprisonment, Analysis Finds"

The title of this post is the the title of this new press release from the Council on Criminal Justice (CCJ) discussing the latest findings of research it has been conducting looking at incarceration disparities.  Here is part of the press release, with lnks from the original providing access to the underlying research:

The Black-White disparity in imprisonment has narrowed substantially over the past 20 years but very little of the progress can be attributed to state sentencing reforms, according to a series of reports released today by the Council on Criminal Justice (CCJ).

Following on previous analyses that documented a 40% drop in the Black-White imprisonment disparity between 2000 and 2020, researchers at CCJ, Georgia State University, and the Crime and Justice Institute examined more than 700 statutes adopted in 12 states between 2010 and 2020, seeking to understand how sentencing reforms might have influenced the reduction.  Laws included for study related to violent, property, and drug crimes, as well as parole release and technical violation practices.  The study states (Arizona, California, Colorado, Florida, Georgia, Illinois, New York, North Dakota, Pennsylvania, South Carolina, Texas, and Utah) varied by region, demographic composition, sentencing structure, and the political party in power.

With minor exceptions, the analysis found that the sentencing reforms had negligible impacts on reducing racial disparities, and instead largely codified changes to enforcement, policing, charging, and sentencing practices that had occurred before the laws were enacted. In addition, many sentencing law changes that took effect during the study period addressed fairly infrequent crimes and therefore had a minimal effect on disparity. 

The findings suggest that factors beyond sentencing laws were mostly responsible for the Black-White imprisonment disparity declining from 8.2-to-1 in 2000 to 4.9-to-1 in 2020. Though the study did not statistically assess alternative explanations, the authors offered several other possible reasons for the shrinking disparity, including changes in policing practices, drug use (from cocaine to opioids), how drugs are sold (from open-air markets to the use of GPS-equipped smartphones), and the types of crimes people commit (from burglary to cybercrime, for example)....

The 12-state analysis is part of a sweeping package on racial disparities released by CCJ’s Pushing Toward Parity project. It includes an in-depth look at the legislative changes in each of the 12 study states as well as two reports examining disparities in imprisonment through other lenses.

One analysis examined state imprisonment disparities between Hispanic and non-Hispanic White people.  It found that disparity in imprisonment rates declined during the first two decades of the century, but that the precise size of the drop is unclear because of a conflict between data sources. In 2020, data collected from state corrections departments showed a Hispanic-White disparity ratio of 1.5-to-1; data from a federal prison survey, however, produced a ratio that was 2.7-to-1, or 80% larger. 

The gap in disparity ratios derived from each source has increased over time.  In 2000, the two disparity ratios were roughly equivalent, but by 2020 the federal data disparity ratio was 80% larger.  The measurement gap stems from how race and ethnicity are recorded and classified in each source.  The choice of measurement method makes a large difference in the projected achievement of parity: if current trends continue, the Hispanic-White disparity measure drawn from state data would reach parity by about 2026, while the measure from federal data would reach parity about 30 years later.

Another analysis focused on disparities in female prison populations. It found that state imprisonment disparity between Black and White women fell by 71% between 2000 and 2020, decreasing from 6.3-to-1 to 1.8-to-1 and exceeding the drop for men.  The decline was driven by a 56% decline in the imprisonment rate for Black women and a 57% increase for White women.  Hispanic-White female imprisonment rate disparity also fell (by 56%) over the two-decade period, data from state corrections departments showed; it has been at or below parity since 2010 and reached 0.7-to-1 in 2020, meaning that White women were more likely to be imprisoned than Hispanic women.

Female imprisonment disparity fell across violent, property, and drug offense categories, with the largest drop recorded for drug crimes.  From 2000 to 2020, Black-White drug offense imprisonment disparity among women dropped from 8 to 0.6, reaching parity in 2016.  Hispanic-White drug offense imprisonment disparity fell from 2.4 in 2000 to 0.5 in 2020. Changes in the demographic composition of prison admissions drove the trends.  From 2000 to 2019, admissions decreased 47% for Black females, increased 15% for Hispanic females, and rose 138% for White females. 

Call (again) for papers: Federal Sentencing Reporter issue on "Booker at 20"

In this prior post a couple of weeks ago, I set out a call for papers for a forthcoming issue of the Federal Sentencing Reporter to note (and celebrate? criticize?) the federal sentencing system's 20 years of functioning under the rules created in Booker.  I plan to repost this call every few weeks until the deadline thoward the end of May.  So:

The US Supreme Court's January 2005 decision in United States v. Booker ushered in a new era for federal sentencing.  Through a dual set of dueling 5-4 opinions, Booker made the guidelines “effectively advisory,” rather than “mandatory,”  after the Court concluded that judicial fact-finding to increase mandatory guideline ranges violated the Fifth and Sixth Amendments.  The Court’s opinion essentially invited Congress to rework the federal sentencing system in the wake of this ruling, but the Booker advisory guideline system has proved remarkably durable: the mandatory guideline system was operational for 16 years, but we are now approaching the 20th anniversary of Booker and the advisory guideline system it created.

Though constitutionally and functionally a sea change, the Booker ruling has seemingly had a relatively limited effect on sentence severity and reliance on imprisonment in the federal system.  Data from the US Sentencing Commission reveal that in fiscal year 2003, the last full year of data before the disruptions of Booker and its predecessor ruling in Blakely v. Washington, just over 69,000 persons were sentenced in federal courts, with nearly 87% receiving a prison term and with the average prison term being 48 months.  Data from fiscal year 2023, the latest full year of federal sentencing data assembled by the Commission, indicate that just over 64,000 persons were sentenced in federal courts with nearly 93% receiving a prison term and with the average prison term being 52 months.  The relative consistency of federal sentencing outcomes in the Booker era is striking, especially given that Congress enacted two notable sentence-reducing statutes in this period through the Fair Sentencing Act of 2010 and the First Step Act of 2018.

Still, sentencing below guideline ranges has increased significantly in the Booker era, and lawyers and sentencing judges now place greater emphasis on the statutory sentencing factors of 18 USC § 3553(a) and relatively less emphasis on guideline particulars.  Data from FY 2023 indicate that only 42% of sentences are imposed within the guideline range, though the same Commission data reveal that the guidelines continue to exert a kind of gravitational pull on sentence lengths even though not regularly followed.  And, of course, Booker did not directly impact the force of statutory mandatory minimums, which still shape and cast shadows on plea bargaining and other aspects of the federal sentencing process.  

Nearly 20 years have passed since Booker, and the editors of the Federal Sentencing Reporter are eager to invite judges, lawyers, other sentencing practitioners, legal academics, and sentencing researchers, to share thoughts on “Booker at 20” for publication in an early 2025 FSR issue.  FSR commentaries for this issue could tackle foundational issues (such as the Court’s ruling in Booker and follow-up cases), discrete application issues (such as why certain advisory guidelines are more likely to be followed or ignored), institutional concerns (such as how Congress and the Commission and the Justice Department have responded to Booker), or any other topic of interest or concern to modern federal sentencing policy and practice.  FSR welcomes commentaries from all perspectives, including insights from sentencing experiences (with or without guidelines) in the states and other countries.  Everyone with an informed interest in sentencing law and practice is encouraged to submit a commentary.

FSR articles are typically brief — 2000 to 5000 words, though they can run longer — with light use of citations in the form of endnotes.  The pieces are designed to be read by busy stakeholders, including lawyers, judges, scholars, and legislators (as well as, of course, members and staff of the US Sentencing Commission).  Priority will be given to drafts submitted by May 28, 2024, and later submissions will be considered as space permits.  Submissions should be sent electronically to [email protected] with a clear indication of the author and the author’s professional affiliation.