Thursday, December 9, 2021

More research to support notion that spike in gun sales contributed to spike in gun crimes

As detailed in a number of prior posts (some linked below), because guns crimes but not many other crimes have spiked since the start of the pandemic, I have figured the pandemic spike in gun sales likely had some role in our modern crime trends.  This new piece from The Trace, headlined "New Data Suggests a Connection Between Pandemic Gun Sales and Increased Violence," seems to provide further support for my (simplistic?) thinking here.  Here are excerpts:

In March 2020, as the first COVID-19 outbreaks rippled across the U.S., Americans flocked to gun stores.  In total, civilians purchased some 19 million firearms over the next nine months — shattering every annual sales record.  At the same time, shootings across the country soared, with dozens of cities setting grim records for homicides.

As the pandemic progressed, and gun sales continued to climb alongside shootings, researchers have puzzled over the connection between these two intersecting trends.  Was the surge in violent crime related to the uptick in guns sold last year? We may not get a definitive answer to that question for years, but fresh data from the Bureau of Alcohol, Tobacco, Firearms and Explosives provides some of the first evidence that a relationship exists.

ATF data shows that in 2020, police recovered almost twice as many guns with a short “time-to-crime” — in this case, guns recovered within a year of their purchase — than in 2019.  Law enforcement officials generally view a short time-to-crime as an indicator that a firearm was purchased with criminal intent, since a gun with a narrow window between sale and recovery is less likely to have changed hands.  Altogether, more than 87,000 such guns were recovered in 2020, almost double the previous high.  And almost 68,000 guns were recovered in 2020 with a time-to-crime of less than seven months (meaning they were less likely to have been purchased the previous year).

Put more plainly, thousands of guns purchased in 2020 were almost immediately used in crimes — some as soon as a day after their sale. That was the case of the 9mm Beretta pistol purchased by an Arlington man from Uncle Dan’s Pawn Shop and Jewelry in Dallas, according to police records.  Officers seized the gun from its owner during a drug arrest 24 hours later. In another example, a Laredo, Texas, man assaulted his mother, then opened fire on police with his Smith & Wesson M&P 15-22 rifle in July 2020.  The gun had been purchased at a Cabela’s in Ammon, Idaho, just three months earlier.

“Overall, I think we can say that the gun sale surge may have contributed to a surge in crime,” said Julia Schleimer, a researcher in the Violence Prevention Research Program at the University of California, Davis, after reviewing the ATF’s data....

Researchers interviewed for this story cautioned that the number of guns recovered and traced by law enforcement does not always indicate the amount of gun crime in a given year.  In other words, factors driving increases in the amount of short-time-crime guns in the ATF’s data may be separate from the factors contributing to gun violence.

Still, no sales bump compares to 2020, when gun buying soared to unprecedented heights, Schleimer said, substantially widening the pool of recently purchased guns that could potentially turn up at crime scenes....

Jim Bueermann, a former California police chief who serves as a senior fellow at the George Mason University Center for Evidence-Based Crime Policy, said that while the new data may not provide conclusive evidence of a causal relationship between gun sales and gun crime, it does signal the importance of additional exploration.  “Data like this asks more questions than it answers, but this is a clarion call for criminologists to conduct research in this space.”

A few of many prior related posts:

December 9, 2021 in Gun policy and sentencing, Impact of the coronavirus on criminal justice, National and State Crime Data | Permalink | Comments (0)

Wednesday, December 8, 2021

"The Effects of College in Prison and Policy Implications"

The title of this post is the title of this notable new piece authored by Matthew G.T. Denney and Robert Tynes newly published in the journal Justice Quarterly. Here is its abstract:

Despite the policy relevance of college-in-prison, the existing research on these programs has important flaws, failing to address selection and self-selection bias.  We address an important policy question: what are the effects of college-in-prison program?  To do this, we provide the largest study published to-date of a single college-in-prison program. 

We analyze the effects of the Bard Prison Initiative (BPI) in New York, a liberal arts program that has offered college courses to incarcerated students since 2001.  By leveraging the BPI admissions process, we employ a design-based approach to infer the causal effect of participation in BPI.  We find a large and significant reduction in recidivism rates.  This reduction is consistent across racial groupings.  Moreover, people with higher levels of participation recidivate at even lower rates.  In light of these findings, we provide policy recommendations that support college-in-prison programs.

December 8, 2021 in National and State Crime Data, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)

US Sentencing Commission releases FY 2021 fourth quarter sentencing data showing growth in cases and in average sentence severity

US Sentencing Commission yesterday published here its latest quarterly data report which is described as a "4th Quarter Release, Preliminary Fiscal Year 2021 Data Through September 30, 2021." These new data provide another official accounting of how COVID realities appear to be continuing to reduce the usual total number of federal sentences imposed, though in this latest quarter we are seeing a return almost to pre-pandemic norms for most offense categories other than immigration cases.

Specifically, as reflected in Figure 2, in pre-pandemic years, quarterly cases sentenced generally averaged around 17,000 to 19,000. But in the three quarters closing out 2020, amid the worst early periods of the pandemic, there were only between about 12,000 and 13,000 cases being sentenced each quarter.  In the most recent quarter here reported, running from July 1 to September 30, 2021, it appears that more than 15,000 cases were sentenced in federal court.  Figure 2 also shows that, relative to pre-pandemic trends, the only major caseload decline now is in the total number of immigration cases sentenced while the other big federal case categories — Drug Trafficking, Firearms and Economic Offenses — now have the total number of cases sentenced in recent quarters not off that much from recent historical norms.

Consistent with what I have noted in prior post about pandemic era USSC data, these data continue to show a notable jump in the percentage of below-guideline variances granted in the last five quarters (as detailed in Figures 3 and 4).  But I suspect these data may reflect the altered mix of cases now that the number of immigration cases being sentenced has declined dramatically rather than significantly different behaviors by sentencing judges.  And, notably, Figure 5 in this data run reveals that the "Average Guideline Minimum" as well as the "Average Sentence" were higher in this last quarter than in recent history, with a particularly notable uptick in these measures of average sentence severity over the last two quarters.

A few prior recent related post:

December 8, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Impact of the coronavirus on criminal justice | Permalink | Comments (0)

The Sentencing Project releases "Successes in Criminal Legal Reforms, 2021"

Nicole Porter at The Sentencing Project has authored a short report reviewing state-level legislative criminal justice reforms under the title "Successes in Criminal Legal Reforms, 2021." This webpage has a link to the full four-page document, and it sets up the report's coverage this way:

The United States continues to lead the world in incarceration given that over 6.3 million persons are under correctional control.  More than 2.1 million are in prison or jail, and 4.4 million are under community surveillance on probation or parole.  At least 19 million persons are living with a felony conviction while an estimated 70-100 million have a criminal record. The persistence of extremely punitive sentencing laws and policies, not increases in crime rates, sustain the nation’s high rate of incarceration.

Ending mass incarceration requires a transformative change to sentencing policies and practices aligned with the scaling back of collateral consequences of conviction, and challenging racial disparities in the criminal justice system.  This briefing paper highlights key reforms undertaken in 2021 prioritized by The Sentencing Project.

December 8, 2021 in State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Tuesday, December 7, 2021

Hard to keep up with all the great new Inquest pieces

Regular readers recall lots of prior blogging about Inquest, "a decarceral brainstorm," which continues to publish lots of must-read essays and other great materials.  I am behind in reading and blogging about all new great new reads from the site, so I will have to be content to just flag here just a few of the many newer pieces worth checking out:

From Christopher Blackwell & Jessica Sandoval, "Seeing the Light: We can't end mass incarceration without first ending solitary confinement once and for all."

From Jessica T. Simes, "Vulnerable Places: Entire communities are singularly exposed to punishment. Understanding how is key to combating mass incarceration."

From Tewkunzi Green, "Surviving Everywhere: Clemency gave me a chance to tell my truth — a truth the criminal legal system made invisible."

From Rachael Bedard & Zachary Rosner, "Treating Unfreedom: Practicing correctional medicine is fundamentally an exercise in harm reduction. And it’s no match for liberty itself."

December 7, 2021 in Recommended reading | Permalink | Comments (0)

"'No idea whether he's Black, White, or purple': Colorblindness and cultural scripting in prosecution"

The title of this post is the title of this notable new research authored by R. R. Dunlea and just published in the journal Criminology.  Here is its abstract:

Prosecutors maintain immense power over criminal case processing.  Yet, they have not historically been a major target for reforms designed to foster equality and reduce racial disparity in criminal justice outcomes.  Using in-depth interviews with 47 line prosecutors, this study explores how prosecutors think about race in criminal justice, and what they believe their role should be in addressing racial disparities. 
Results show that prosecutors broadly embrace a colorblind approach to prosecution and argue that race should be disregarded in case processing.  Their support for colorblind prosecution is reinforced by race-neutral cultural scripts that can be linked to the social and operational realities of prosecutors’ work environment.  These findings suggest that efforts to improve fairness in case processing will be more effective if they are accompanied by widespread prosecutorial culture change.  Such efforts may also benefit from the consideration of structural features of the prosecutor's office that currently lead line agents to embrace colorblindness and reject a larger role in alleviating racial disparities.

December 7, 2021 in Race, Class, and Gender, Who Sentences | Permalink | Comments (3)

Monday, December 6, 2021

Noting differing perceptions of whether prison time is too long or too short or just right in the US

FT_21.11.17_TimeInPrison_1Over at the Pew Research Center, John Gramlich has this interesting new piece under the headline "U.S. public divided over whether people convicted of crimes spend too much or too little time in prison."  The graphic reprinted here captures the heart of the story, and here is some of the text (with links from the original):

Americans are closely divided over whether people convicted of crimes spend too much, too little or about the right amount of time in prison, with especially notable differences in views by party affiliation, ideology, race and ethnicity.

Overall, 28% of U.S. adults say people convicted of crimes spend too much time in prison, while 32% say they spend too little time and 37% say they spend about the right amount of time, according to a Pew Research Center survey of 10,221 adults conducted in July 2021.  The question was asked as part of a broader survey examining differences in Americans’ political attitudes and values across a range of topics.  The survey asked about prison time in a general way and did not address penalties for specific crime types.

Democrats and Democratic-leaning independents are much more likely to say people convicted of crimes spend too much time in prison than to say they spend too little time behind bars (41% vs. 21%).  The reverse is true among Republicans and Republican-leaning independents: 44% of Republicans say people convicted of crimes spend too little time in prison, while 14% say they spend too much time behind bars.  Around a third of Democrats and Democratic leaners (35%) and a slightly higher share of Republicans and GOP leaners (39%) say people convicted of crimes spend about the right amount of time in prison.

Views differ by ideology within each partisan group.  Liberal Democrats are more likely than conservative and moderate Democrats (54% vs. 30%) to say convicted people spend too much time in prison.  Conservative Republicans are more likely than moderate and liberal Republicans (49% vs. 35%) to say people convicted of crimes spend too little time in prison.

Democrats who describe their political views as very liberal and Republicans who describe their views as very conservative stand out even more.  Very liberal Democrats are much more likely than Democrats who describe their views as simply liberal (70% vs. 47%) to say convicted people spend too much time in prison.  And very conservative Republicans are more likely than Republicans who describe their views as simply conservative (56% vs. 47%) to say people convicted of crimes spend too little time in prison.

Attitudes about many aspects of the U.S. criminal justice system differ by race and ethnicity, as previous Pew Research Center surveys have shown, and a similar pattern appears in views of time spent in prison.  Black adults (40%) are more likely than White (26%), Asian (26%) and Hispanic adults (25%) to say people convicted of crimes spend too much time in prison.  Conversely, White adults (36%) are more likely than Hispanic (28%) and Black adults (17%) to believe that convicted people spend too little time behind bars.  Around a third of Asian adults (34%) also say convicted people do not spend enough time in prison, but their views are not statistically different from those of White and Hispanic adults.

Among Democrats, similar shares of Black and White adults say prisoners spend too much time behind bars, even as Black and White Democrats express different views on some other survey questions related to criminal justice.  Black Democrats, for example, are modestly more likely than White Democrats to favor increased funding for police in their area, according to a September Pew Research Center survey.

December 6, 2021 in Elections and sentencing issues in political debates, Race, Class, and Gender, Who Sentences | Permalink | Comments (7)

SCOTUS to wrap up 2021 oral arguments with two more criminal cases

With big cases concerning abortion (Hobbs) and gun rights (Bruen), the start of the SCOTUS Term has had plenty of big arguments involving big issues that probably could be viewed through a criminal justice lens.  And, with arguments on the Boston Marathon bomber's sentence (Tsarnaev) and the right to a pastor in the execution chamber (Ramirez), the death penalty has also been on the SCOTUS docket.  And, of course, what would a SCOTUS Term be without the requisite ACCA case (Wooden) and a case dealing with habeas procedure (Davenport).

But my SCOTUS criminal justice cup cannot run over, and thus it is worth nothing that the Justice have two more criminal cases on the docket for its last two days of scheduled oral argument for 2021.  With thanks to SCOTUSblog, here are the basics:

US v. TaylorNo. 20-1459, to be argued on Tuesday, December 7, 2021 

Issue(s): Whether 18 U.S.C. § 924(c)(3)(A)’s definition of “crime of violence” excludes attempted Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a).
 
 
Shinn v. RamirezNo. 20-1009, to be argued on Wednesday, December 8, 2021:
 
Issue(s): Whether application of the equitable rule the Supreme Court announced in Martinez v. Ryan renders the Antiterrorism and Effective Death Penalty Act, which precludes a federal court from considering evidence outside the state-court record when reviewing the merits of a claim for habeas relief if a prisoner or his attorney has failed to diligently develop the claim’s factual basis in state court, inapplicable to a federal court’s merits review of a claim for habeas relief.

December 6, 2021 in Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Working through challenges facing CARES home confinement cohort

Charles Burnham and Jonathan Knowles have this new Law360 piece, headlined "Addressing Prison Risk After CARES Act Home Confinement," that talks through the possibilities (and challenges) for individuals placed on home confinement pursuant the CARES Act facing a potential future return to prison. Here are excerpts:

First, people with criminal convictions should remember that they retain political influence, even if many of them are unable to vote. Congress could resolve the issue by enacting law that clarifies the BOP's authority to maintain home confinement. Unfortunately, such legislation does not seem likely.

Many representatives and senators have requested that the Biden administration change its attitude, however, and continued pressure might push the administration to adopt a new approach. Presumably, most people with convictions would like to go further. As always, they can request a pardon from the president, but this process remains unlikely to succeed, except, perhaps, for those specifically invited to apply.

So, what other options are available?

Section 12003(b)(2) of the CARES Act is ambiguous as to what happens when the national emergency ends. It could be read as restricting the authority to place new people on home confinement, while preserving home confinement that has been granted.

There may be other grounds to challenge revocation of home confinement.  Whatever the strength of such challenges, there are numerous obstacles before a court will even hear them.  One issue is timing. In May, a woman named Dianthe Martinez-Brooks attempted to preemptively challenge the OLC memo that threatened to revoke her home confinement. Rather than answering her complaint, the BOP moved to dismiss, arguing that her case was not ripe because the BOP had not recalled her to prison.

At the time of writing, the court has yet to rule on the motion. Yet, if individuals on home confinement are not able to challenge their recall before it occurs, they may have to surrender to prison for many months while their cases are pending. People attempting such preemptive challenges should therefore be prepared to argue that their claims are ripe.

Another issue is the correct procedural vehicle for the challenge. Martinez-Brooks moved under the Administrative Procedure Act. In its motion to dismiss, the BOP asserted that such challenges cannot be brought under the APA because Congress has prohibited people who are incarcerated from using the APA to challenge the BOP's placement decisions.

At least one federal court has ruled that Title 18 of the U.S. Code, Section 3625, the statute cited by the government, prevented individuals who are incarcerated from challenging a denial of home confinement under the CARES Act. The District of New Jersey held as such on Sept. 1 in Goodchild v. Ortiz.

The BOP also asserted that the OLC memo at issue is not final agency action.  Finally, the BOP argues that relief under the APA is unavailable because Martinez-Brooks has another remedy — namely, the motion for compassionate release that she has previously filed.

The obvious alternative would seem to be habeas corpus. Indeed, from around 2005 to 2008, incarcerated individuals in some circuits successfully used habeas corpus to challenge the BOP's categorical denial of community confinement.  Federal courts have reached different conclusions, however, about whether they have jurisdiction to consider requests for home confinement under habeas corpus.

A preemptive challenge under habeas would also raise questions about where to file suit, and against whom.  Attorneys will need to review the law of their circuits carefully to ascertain whether suits can be brought under habeas or Title 42 of the U.S. Code, Section 1983, as well as whether individuals in prison are required to exhaust administrative remedies.

Yet another obstacle is whether the relief sought is within the court's power. In considering the claims of people who are incarcerated, courts have so far held that home confinement is solely within the discretion of the BOP.  Even so, some courts have left open the possibility that they could review a categorical denial of home confinement based on a misreading of a statute.

Finally, people who are incarcerated should be ready to seek relief under other avenues. Some may be within the one-year deadline to move to vacate, set aside or correct a sentence.  In many cases, however, the only option will be to seek compassionate release.

Courts have split as to grounds for compassionate release....

If possible, affected individuals should prepare motions now and submit them to the BOP as soon as it formally rescinds home confinement.  They may even be able to move the court earlier, asking the court to hold the issue in abeyance, although such a procedure would be risky.

Some of many prior related posts:

December 6, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

When exactly in "early 2022" might we expect Prez Biden's nominees to the US Sentencing Commission?

The question in the title of this post is prompted by this new Law360 article, which discusses the quorum-less status of the US Sentencing Commission and includes a prediction from the last remaining Commissioner as to when new USSC nominations may be forthcoming. The piece is headlined "Biden's Inaction Keeps Justice Reform Group Sidelined," and here are a few excerpts:

In November, Reps. Kelly Armstrong, R-N.D., and Jamie Raskin, D-Md., sent a letter to Biden urging him to fill vacancies on the Sentencing Commission, saying that the commission's inability to issue sentencing guidelines for the First Step Act could result in "uneven application of the law."

"It is imperative that the vacancies are expeditiously filled so the commission can continue its work to improve the federal criminal justice system," the pair said in the Nov. 22 letter.

Armstrong told Law360 that he sent the letter to Biden because having the commission's input would be beneficial as the Senate considers advancing the EQUAL Act, or Eliminating a Quantifiably Unjust Application of the Law Act — a proposed law that would completely eliminate sentencing disparities between crack and powdered cocaine offenses.  The bill has passed in the House.

"Nobody's ever lost an election being tough on crime, so if you want reasonable smart policy changes, you need experts to give you the advice, because then, you can utilize that, and you don't take as much political heat," Armstrong said about the Sentencing Commission.

Congress is currently considering several sentencing reform bills in addition to the EQUAL Act.  Though lawmakers are running out of time to pass the proposed laws with its winter recess scheduled to start Dec. 11.  Four of the proposed sentencing reform bills — the Smarter Sentencing Act, the Preventing Unfair Sentencing Act, the RAISE Act and the Ending the Fentanyl Crisis Act — specifically call on the Sentencing Commission to review and revise its sentencing guidelines, if necessary to comply with the legislation.  However, the commission wouldn't be able to comply with these directives as long as it lacks a quorum.

A White House spokesperson did not respond to a request for comment about why Biden hasn't nominated commissioners for the Sentencing Commission yet or when he will announce his nominees.

Breyer, the sole remaining commissioner, told Law360 that he has been in contact with the White House and believes it is currently vetting candidates. He said that he is hoping for a slate of nominees in early 2022.  The White House is "certainly overworked, but I still think that there is some priority in getting this taken care of," Breyer said.

If there truly was "some priority" in staffing the US Sentencing Commission, I think we would have and could have already seen some USSC nominees now 11 months into the Biden Administration.  But I suppose this setting justifies the old saying "better late than never." 

I sincerely hope Judge Breyer's prediction of "nominees in early 2022" means sometime in January or February.  The process of Senate confirmation likely takes a few months even under the best of circumstances, and the prospect of confirmations would seem to diminish as we get closer to the midterm elections.  So even uncontroversial nominations made in January might not result in a full and functioning Commission until Spring 2022.  I fear later and/or controversial nominees could mean we do not get a full and functioning Commission at all in 2022.     

A few of many prior recent related posts:

December 6, 2021 in Criminal justice in the Biden Administration, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (15)

Sunday, December 5, 2021

Recidiviz forecasts federal marijuana legalization would reduce "federal prison population by 2,807 over 5 years"

Recidiviz has this notable new data analysis titled "Ending Federal Prison Sentences for Marijuana Offenses."  Here is part of its text:

Ending federal marijuana prohibition specifically, ceasing federal prison commitments for marijuana-related offenses could reduce incarceration costs by $571.8M and the federal prison population by 2,807 over 5 years. The policy is also projected to divert roughly 1,120 people from being sent to federal prison each year....

In spite of these shifts in public opinion and state law, marijuana is still prohibited at the federal level, and more than 3,000 individuals are currently serving marijuana-related sentences in federal prison.  Significant racial disparities exist in federal marijuana sentencing; an estimated 60% of people serving time in federal prison for marijuana offenses are of Hispanic descent, and over the past five years, 67% of individuals receiving prison sentences for marijuana offenses were Hispanic.


While the rate of prison sentencing for federal marijuana offenses has declined substantially in the past five years, individuals incarcerated for federal marijuana offenses still face an average sentence of approximately 38 months.  Furthermore, nearly 1 in 4 individuals incarcerated under federal marijuana trafficking offenses will face
reincarceration.

December 5, 2021 in Drug Offense Sentencing, Pot Prohibition Issues, Prisons and prisoners | Permalink | Comments (0)

"Crime and Punishment. Crime Rates and Prison Population in Europe"

The title of this post is the title of this new paper available via SSRN authored by Beata Gruszczyńska and Marek Gruszczyński. Here is its abstract:

We present the attempt of finding association between crime level and prison population across European countries.  We propose observation that Central and Eastern European countries distinctly differ from the rest of Europe.  Building on this we offer justification that is methodologically based on correlations and regressions of country incarceration rates on crime rates, with the reference to governance indicators.  We use data on crime and prisoner rates by offence from Eurostat and SPACE.  Our cross-sectional analysis is confined to year 2018.

The empirical part of the paper is preceded by specifying the challenges of comparing crime between countries in Europe.  Next, we present the review of research concentrated on relationships between incarceration and crime, with the emphasis on deterrence effect and the prison paradox.  This stream of research is typically dedicated to single countries or smaller areas, with the use of microdata.  International comparisons are rare and are usually based on time series and trend analyses.

Quantitative approach applied here is established on recognizing two clusters of countries: Central and Eastern European (CEE) cluster, and Western European (WE) cluster. We show that the observation of higher prisoner rates and lower crime rates for CEE countries is confirmed in a quantitative way. The analysis encompasses four types of offences: assault, rape, robbery and theft.  Final part of the paper presents the attempt to include World Governance Indicators into the analysis of association between incarceration and crime rates.

All results confirm that crime rates in WE countries are distinctly higher than in CEE countries while incarceration rates in WE are significantly lower than in CEE countries. We think it is because of the broader extent of crimes registered and better accuracy of police statistics.  Prison population is largely determined by the criminal and penal policy in each country. Those policies differ substantially between CEE and WE countries, e.g. in terms of frequency of sentencing to the prison and the length of imprisonment.  These result in higher incarceration rates in CEE countries, despite lower crime rates – as compared to WE countries.

December 5, 2021 in Prisons and prisoners, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (0)

Three deep dives into ugly realities of Alabama's justice system

One often hears talk of Texas justice being unique, but there are really distinctive stories to tell about criminal justice realities in every state.  To that end, consider three new lengthy recent pieces about crime and punishment in Alabama.  I recommend all of these deep dives:

From AL.com, "Alabama parole rate far short of board’s own recommended guidelines"

From Politico, "‘A humanitarian crisis’: Why Alabama could lose control of its dangerous prisons: Alabama sends so many people to prison that the state can no longer safely house its inmates, consequences of a tough-on-crime mentality among politicians and the public that keeps aggressive sentencing laws on the books."

From the New York Times, "He Never Touched the Murder Weapon. Alabama Sentenced Him to Die.: Nathaniel Woods was unarmed when three Birmingham police officers were fatally shot by someone else in 2004.  But Woods, a Black man, was convicted of capital murder for his role in the deaths of the three white officers."

December 5, 2021 in Death Penalty Reforms, Prisons and prisoners | Permalink | Comments (7)

Saturday, December 4, 2021

Fourth Circuit panel finds probation sentence for abusive police officer procedurally and substantively unreasonable

I just saw a notable Fourth Circuit per curiam panel ruling which was handed down on Thanksgiving Eve.  The (unpublished) opinion in US v. George, No. 19-4841 (4th Cir. Nov. 24, 2021) (available here), gets started this way:

A jury convicted Robert Michael George, a former sergeant with the City of Hickory Police Department, of using objectively unreasonable force against a pretrial detainee, Chelsea Doolittle, depriving her of the constitutional right to due process of law, in violation of 18 U.S.C. § 242.  The presentence report calculated an advisory guidelines sentencing range for George’s crime of 70 to 87 months of imprisonment, but the district court sentenced him to a downward variance term of four years’ probation.  The Government appeals, arguing that George’s sentence is procedurally and substantively unreasonable. Because the district court grounded its reasoning for the chosen sentence in conclusions contrary to the evidence and the jury’s verdict, we cannot uphold the sentence as either procedurally or substantively reasonable.  Accordingly, we vacate the sentence and remand to a different judge for resentencing.

Here are some passages toward the end of a fairly lengthy opinion in George:

In its reasoning, the district court relied heavily on its view, counter to the weight of the evidence and George’s conviction, that the incident was “almost accidental.”  Through the prism of that impermissible belief, the district court determined that the Guidelines range, reflecting the appropriate sentence for an officer that willfully deprives someone of their constitutional rights, did not apply to George because he was not in that category of offender.  Other circuits have vacated sentences as substantively unreasonable in instances in which the trial court took an impermissible view of the facts, and that is the predominant reason for our holding as to substantive reasonableness today....

Further, the district court gave excessive weight to its favorable perceptions of George as a former police officer, and in turn the post-conviction consequences for George, dismissing other considerations set forth in the Guidelines.  However, “a defendant’s status as a law enforcement officer is more akin to an aggravating as opposed to a mitigating sentencing factor, as criminal conduct by a police officer constitutes an abuse of public position.”  United States v. Thames, 214 F.3d 608, 614 (5th Cir. 2000).  Rather than acknowledge an abuse of public trust, the court relied heavily on its positive perception of George as a former law enforcement officer in its discussion of the first and second § 3553(a) factors, failing to significantly weigh the seriousness of the crime.  As to the goals of the § 3553(a) factors to “promote respect for the law,” “provide just punishment,” “afford adequate deterrence”, and “protect the public,” the court spoke first and foremost of the “total life changes to Mr. George,” enumerating collateral consequences, including George’s loss of his job and pension, as sufficient deterrent to justify the variance. J.A. 512.  But such outcomes are common in § 242 cases and do not justify this significant variance to a probationary sentence.  Indeed, “it is not unusual for a public official who is convicted of using his governmental authority to violate a person’s rights to lose his or her job and to be barred from future work in that field.”  Koon, 518 U.S. at 110.  That reasoning does not provide the “significant justification” necessary for such a substantial departure.  Gall, 552 U.S. at 50.

December 4, 2021 in Booker in the Circuits, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Friday, December 3, 2021

"Moral Panic and the War on Drugs"

The title of this post is the title of this new article now available at SSRN authored by Phil Lord.  Here is its abstract:

This Article analyzes the War on Drugs as a social phenomenon. It argues that such an analysis, which rejects the assumption that collective, institutionalized behavior is generally rational, can help us understand key aspects of why we continue to marginalize disadvantaged individuals.  If the War on Drugs is a war and wars are won or lost, there is no question we lost.  Whatever drug-related evil that war sought to eradicate, whether drug consumption, trafficking, or addiction, the data clearly shows that “drugs won.”

Along the way, we nonetheless persisted — and largely still do. We filled prisons, lost lives, and shattered hopes and dreams.  Those we hurt the most were already marginalized.  To state that we lost is unhelpful and insufficient.  Of course, we did.  And we can draw obvious lessons that medicine and psychology work better than carceral institutions and that no one benefits from marginalizing already marginalized and often sick individuals. 

If the War on Drugs never worked, more salient questions are to be asked about why we fought it. This Article posits that the War on Drugs is not about drugs, crime, or addiction: it is about us.  It is about why we cede to fear, anxiety, and irrationality. It is about why we stigmatize and hurt the most vulnerable. Like other irrational and counterproductive policies, the War on Drugs is not an anomaly.  It bears close resemblance to other wars we fought (and fight) against the disempowered: witches, gays, Muslims, and others.

December 3, 2021 in Drug Offense Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (25)

Thursday, December 2, 2021

Split Florida Supreme Court upholds imposition of maximum sentence based in part on defendant's claim of innocence

Via a lengthy divided ruling, the Florida Supreme Court handed down some interesting opinion today in Davis v. Florida, No. SC19-716 (Fla. Dec. 2, 2021) (available here).  Because the various judges fight over how to characterize the case and the ruling, I will just reprint the words of the leading opinions.  First the majority, via Chief Justice Canady:

We accepted jurisdiction to answer the certified question, but because the district court did not pass upon the entirety of the question as framed, we first rephrase it based on the specific circumstances presented by this case: 

DOES A TRIAL COURT, WHEN IMPOSING A SENTENCE ON A DEFENDANT WHO HAS VOLUNTARILY CHOSEN TO ALLOCUTE AND MAINTAIN HIS INNOCENCE AT THE SENTENCING HEARING, VIOLATE THE DEFENDANT’S DUE PROCESS RIGHTS BY CONSIDERING THE DEFENDANT’S FAILURE TO TAKE RESPONSIBILITY FOR HIS ACTIONS?...

We hold that when a defendant voluntarily chooses to allocute at a sentencing hearing, the sentencing court is permitted to consider the defendant’s freely offered statements, including those indicating a failure to accept responsibility. Thus, we answer the rephrased question in the negative and approve the result in the decision on review.

Now the chief dissent via Justice Polson:

I dissent from the majority’s decision holding that a trial court can punish a defendant for his lack of remorse during a sentencing proceeding.  This result is inconsistent with our precedent interpreting article I, section 9 of the Florida Constitution, the consensus among the district courts of appeal, and has no basis in our statutory sentencing scheme. Showing remorse is admitting you did something wrong — an admission of guilt.  And increasing a defendant’s sentence based on the failure to show remorse is punishing a defendant for failing to admit guilt.  Punishing someone unless they confess guilt of a crime is a violation of due process and the right against self-incrimination.  Accordingly, I would hold that a trial court violates a defendant’s constitutional right to due process and right against self-incrimination where it penalizes a defendant for the failure to admit guilt.

Notably, more two decades ago, the US Supreme Court held Mitchell v. US, 526 U.S. 314 (1999), that it was unconstitutional to use "petitioner’s silence against her in determining the facts of the offense at the sentencing hearing."  Presumably that ruling in part explains why the majority hear makes much of the defendant voluntarily choosing to allocute and assert innocence.  

December 2, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

What might be crime and punishment echoes if Supreme Court overturns Roe v. Wade?

The big news of the law world yesterday was the Supreme Court hearing oral argument in Dobbs v. Jackson Women’s Health Organization, the abortion case out of Mississippi which is viewed as a vehicle for the Justices to reconsider and potentially overrule abortion rights precedents like Roe and Casey.  Based on press reports, as collected here at How Appealing, it sure sounds like a majority of the Justices are prepared to overrule Roe.  Recalling some headlines revealing how abortion laws and debates can implicate crime and punishment issues, I thought it might be useful to flag some press articles of relatively recent vintage which highlight how the overruling of Roe could become of considerable interest for those who focus on criminal justice matters. 

Interestingly, the law at issue in the Dobbs case, Mississippi's Gestational Age Act, appears to only have "Professional sanctions and civil penalties" as the enforcement tools for seeking "to restrict the practice of nontherapeutic or elective abortion to the period up to the fifteenth week of gestation."  However, as highlighted by this cursory and abridged review of some press pieces, criminal law and even extreme punishments can be part of an abortion restriction discourse and may become very dynamic if Supreme Court actually does overturn Roe v. Wade:

From Chicago Tribune from April 2018, "Who would be punished for abortion in a post-Roe America?"

From CNN in May 2019, "Alabama doctors who perform abortions could face up to 99 years in prison -- the same as rapists and murderers"

From Texas Tribune in March 2021, "Another Texas GOP lawmaker is attempting to make abortion punishable by the death penalty"

From Slate in September 2021, "Caught in the Net: Interrogated, examined, blackmailed: how law enforcement treated abortion-seeking women before Roe."

From The Guardian in November 2021, "What will US’s future look like if abortion becomes a crime again?

December 2, 2021 in Offense Characteristics, Who Sentences | Permalink | Comments (14)

New Senate bill to add defender ex officio position to US Sentencing Commission

As detailed in this press release from earlier this week, "U.S. Senators Cory Booker (D-NJ) and Dick Durbin (D-IL) [have] introduced the Sentencing Commission Improvements Act, legislation that would for the first time add an ex officio member with a public defender background to the U.S. Sentencing Commission."  Here is a link to the short bill, and here is more from the press release:

Currently, the Commission consists of seven members from both political parties appointed by the President and two ex officio, nonvoting members, the Attorney General or a designee and the U.S. Parole Commission chair. However, unlike the majority of state sentencing commissions, the federal Commission lacks a representative from a public defender background who would provide an essential perspective on the criminal justice system. 

“The federal Sentencing Commission was created to be fair, impartial, and capable of providing evidence-driven improvements to our sentencing system, which is fraught with disparities,” said Senator Booker. “Adding a statutory member to the Commission with a public defender background will ensure that the Commission’s ranks include this distinct and essential perspective on our criminal justice system and, thus, bring us one step closer to a more balanced and just system.”

“The U.S. Sentencing Commission is tasked with establishing practices and policies to promote transparency and reduce sentencing disparities, but the Commission is missing a crucial perspective from the federal public defender system. If we hope to improve sentencing policies in America, we must balance the Commission’s membership by adding a nonvoting federal defender,” said Senator Durbin. “The Sentencing Commission Improvements Act will remedy the Commission’s blind spot and move us toward a fairer sentencing process.”

This new Law360 article, headlined "'No-Brainer' Bill Would Add Fed. Defender To Sentencing Body," provides some more background and details.  Here is an excerpt:

A Senate proposal Tuesday would create a new seat on the U.S. Sentencing Commission for former federal defenders, a move experts say would counterbalance the outsize influence that current and former prosecutors have over the currently dormant panel....

New York University professor and former U.S. Sentencing Commission member Rachel Barkow cheered the proposal. "The Department of Justice has a seat at the table — literally — with a DOJ rep attending all the Commission's meetings," she told Law360 in a statement Wednesday. "It would be helpful to have a defender there as well to offer that perspective.  The Commission has always had plenty of people serving as commissioners who were former prosecutors, and public defense experience is equally valuable."

Brian Jacobs, a former New York federal prosecutor who now specializes in white collar defense with Morvillo Abramowitz Grand Iason & Anello PC, called the proposed move a "no-brainer."  "Speaking as a defender — but even wearing my former prosecutor hat — it makes sense to want to have that sort of balanced input," he told Law360....

Without a quorum last year, the commission missed the chance to shape sentencing policy in response to the coronavirus pandemic — something public defenders are particularly equipped to weigh in on, according to Jacobs. "There's no reason there shouldn't be language in the guidelines addressing how much more difficult time in custody is right now," he said, referring to viral outbreaks, remote court snafus, and restrictive prison policies limiting defendants' ability to meet with counsel. "If the sentencing commission were more nimble, you can imagine there would have been a statement in the guidelines themselves."

December 2, 2021 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

"The effects of language on the stigmatization and exclusion of returning citizens: Results from a survey experiment"

The title of this post is the title of this new research by Hilary Jackl just published online via the journal Punishment & Society. Here is its abstract;

Although the use of person-centered language has increased in recent years, its usage remains limited within the field of criminal justice, wherein terms such as ex-offender are frequently used to describe formerly incarcerated individuals.  Research suggests that person-centered language matters for public opinion, but prior work has not examined the effect of language on support for the social reintegration of returning citizens.  The present research experimentally manipulates the effects of the language used to describe individuals released from incarceration and the race of a hypothetical returning citizen on the following outcomes: negative stereotype endorsement, attitudinal social distance, and support for reintegrative initiatives.  I find that person-centered language significantly reduces stigmatization of returning citizens, which ultimately increases support for reintegrative services.  These findings suggest that humanizing changes to criminal justice discourse may have the capacity to shift public opinion and create a social context more conducive to reintegration after incarceration.

December 2, 2021 in Reentry and community supervision | Permalink | Comments (1)

Wednesday, December 1, 2021

US Sentencing Commission issues new report on "Recidivism of Federal Firearms Offenders Released in 2010"

Cover_recidivism-firearms-2021The US Sentencing Commission has this week published some new findings from its big eight-year recidivism study of 32,000+ offenders released in 2010.  This new 98-page report is titled "Recidivism of Federal Firearms Offenders Released in 2010," and this USSC webpage provides this overview with key findings:

Overview

(Published November 30, 2021) This report is the second in a series continuing the Commission’s research of the recidivism of federal offenders. It provides an overview of the recidivism of federal firearms offenders released from incarceration or sentenced to a term of probation in 2010, combining data regularly collected by the Commission with data compiled from criminal history records from the Federal Bureau of Investigation (FBI). This report provides an overview of recidivism for these offenders and information on key offender and offense characteristics related to recidivism. This report also compares recidivism outcomes for federal firearms offenders released in 2010 to firearms offenders released in 2005. In the future, the Commission will release additional publications discussing specific topics concerning recidivism of federal offenders.

The final study group of 5,659 firearms offenders satisfied the following criteria:

  • United States citizens
  • Re-entered the community during 2010 after discharging their sentence of incarceration or by commencing a term of probation in 2010
  • Not reported dead, escaped, or detained
  • Have valid FBI numbers that could be located in criminal history repositories (in at least one state, the District of Columbia, or federal records)
  • Sentenced under §2K2.1, sentenced as armed career criminals or career offenders, or convicted under 18 U.S.C. § 924(c)

Key Findings

  • This study observed substantial consistency in the recidivism of firearms offenders across the two time periods, 2005 and 2010, despite two intervening major developments in the federal criminal justice system: the Supreme Court’s decision in Booker and increased use of evidence-based practices in federal supervision.
  • Firearms offenders recidivated at a higher rate than all other offenders.  Over two-thirds (69.0%) of firearms offenders were rearrested for a new crime during the eight-year follow-up period compared to less than half of all other offenders (45.1%).
  • Firearms offenders and all other offenders who recidivated were rearrested for similar crimes. Of the firearms offenders who recidivated, assault was the most serious new charge for 25.9 percent of offenders followed by drug trafficking (11.0%). Similarly, of the all other offenders who recidivated, assault was the most common new charge (19.0%) followed by drug trafficking (11.4%).
  • Firearms offenders have higher recidivism rates than all other offenders in every Criminal History Category (CHC). Within most CHCs, this difference was about ten percentage points.
    • In CHC I, 39.7 percent of firearms offenders recidivated compared to 29.6 percent of all other offenders.
    • In CHC VI, 82.8 percent of firearms offenders recidivated compared to 72.9 percent of all other offenders.
  • Firearms offenders recidivated at a higher rate than all other offenders in every age-at-release grouping. Firearms offenders recidivated at over twice the rate of all other offenders among those released after age 59 (31.1% compared to 14.5%).
  • The recidivism rates for firearms and all other offenders were highly similar for both the 2010 release cohort in this report and the 2005 release cohort previously studied. In the 2005 release cohort, 68.1 percent of firearms offenders recidivated compared to 46.3 percent of all other offenders. Similarly, 69.0 percent of firearms offenders in the 2010 release cohort recidivated compared to 45.1 percent of all other offenders.

December 1, 2021 in Data on sentencing, National and State Crime Data, Reentry and community supervision | Permalink | Comments (2)