Tuesday, May 24, 2022

"A Catholic Perspective on Prison Conditions and Human Dignity"

The title of this post is the title of this new article authored by Meghan J. Ryan now available via SSRN. Here is its abstract:

Criminal offenders in the United States are often reviled. Instead of viewing them as individuals who need help, many view them as “irredeemable,” “dirt,” “slime,” “scum,” “animal[s],” “sewer rats.”  As Catholics, though, we are taught to resist such impulses.  We are called to put aside our overwhelming grief and fear when facing offenders and resist seeking revenge.  We are instead asked to reach out our hands to sinners and offer them our forgiveness.  This may be difficult to do, but walking in the steps of Christ requires just that.

In following Jesus’ path not only are we working against our natural instincts of fear and revenge, but we are also working against the mass machinery of the American criminal justice system.  Today, in the United States, there is often the mentality of locking up an offender and throwing away the key.  Out of sight, out of mind.  We generally keep offenders behind closed doors and, as measured against the practices in other countries, we keep them there for very long periods of time.  Indeed, with nearly two million people, or approximately 0.6% of our population, behind bars, we incarcerate more individuals per capita than any other country in the world.  Further, prisons are often located out of town, in remote locations; prison visits are relatively rare, and there is often little mainstream reporting of what goes on behind prison walls; and some incarceration facilities have even claimed trade-secret protection over their policies.  Once an individual has been accused, convicted, and sentenced, he is often erased from most of society’s consciousness.

Behind the tall prison walls topped with razor wire, there is much that Catholics should be concerned about.  Some prisons lack air conditioning and adequate plumbing, leaving inmates suffering in blistering conditions and wading through sewage.  Many prisons suffer from severe overcrowding, contributing to unlivable conditions where vulnerable inmates are neglected and left in unsanitary conditions.  Most prisons offer insufficient healthy food and inadequate medical care.  Prison violence, including sexual assault, is a frequent occurrence. And prisons regularly place inmates in solitary confinement even though the practice is known to cause severe and permanent physical and mental health problems.

In his recent encyclical letter Fratelli Tutti, Pope Francis suggested that Catholics should work to traverse the wall of secrecy surrounding prison conditions and push to improve them: "All Christians and people of good will are today called to work not only for the abolition of the death penalty, legal or illegal, in all its forms, but also to work for the improvement of prison conditions, out of respect for the human dignity of persons deprived of their freedom." Today’s prison conditions are often abhorrent, and we have much work to do.

May 24, 2022 in Prisons and prisoners, Religion | Permalink | Comments (1)

With Senate leader now pushing for EQUAL Act, can crack sentencing reform finally get to finish line?

The question in the title of this post is prompted by this New York Daily News article headlined "Schumer calls for end to crack cocaine sentencing disparity: ‘Cocaine is cocaine’."  Here are excerpts:

Senate Majority Leader Chuck Schumer on Monday called on lawmakers to end a sentencing disparity between crack and powder cocaine that has had a disproportionate effect on Black Americans. “We have a moment to balance the scales of justice,” the New York Democrat said at a news conference outside the Thurgood Marshall U.S. Courthouse in lower Manhattan. “It’s common sense: Cocaine is cocaine, and the sentencing should be equal.”

In September, the House overwhelmingly passed legislation to end a sentencing formula that uses an 18-to-1 ratio in treating equal amounts of crack and powder cocaine. The bipartisan vote was 361 to 66. Democrats and Republicans embraced the chance to correct what activists, researchers and law enforcement view as a historical wrong. Pricey powder cocaine has long been seen as the province of the wealthy, while crack is cheaper and generally associated with poorer Americans....

But the bill, called the Eliminating a Quantifiably Unjust Application of the Law Act, has not yet landed on the floor of the Senate this spring, with both parties moving cautiously ahead of the pivotal midterm elections in November.

Schumer, who declined to describe a timeline for passage, appeared to be embarking upon a pressure campaign meant to clear space for the legislation’s approval without a fierce fight on the floor. In the Senate, Sens. Rob Portman (R-Ohio) and Cory Booker (D-N.J.) are sponsoring the legislation to end the sentencing disparities. “We’re working together — Sens. Booker, Portman and myself — figuring out the right timeframe and the right way to go,” Schumer told reporters Monday. “We want to get this done as soon as we can.”

Booker’s office said Monday that the legislation has picked up 21 cosponsors, including 11 Republicans, since it was introduced in the Senate in January. Booker said in a statement he was “pleased that Leader Schumer has called for a vote on the bill.” “For decades, our nation’s drug laws have been overly punitive and fraught with racial disparities, but perhaps no law has been as fundamentally flawed as the crack and powder cocaine sentencing disparity,” Booker said in the statement. “I look forward to passing the EQUAL Act as soon as possible.”

Beginning in 1986, mandatory minimum sentences for crack cocaine and powder cocaine crimes were formulated using a staggering 100-to-1 ratio. The Fair Sentencing Act of 2010, signed into law by President Barack Obama, changed the ratio to 18 to 1. “Some of our colleagues would say, ‘Well, I’ll lower it, but I won’t make it equal,’” said Schumer, who at one point held up sweetener packets as props during the news conference. “100 to 1 was horrible, but 18 to 1 was just as horrible, which it is now. 1 to 1 is fair.”

Senator Schumer is wrong to assert current crack sentencing after the Fair Sentencing Act is "just as horrible" as it was under the 100-1 ratio.  It is a bit better, but still not actually fair.  The EQUAL Act finally presents the prospect of getting to the 1-1 sentencing ratio that the US Sentencing Commission urged way back in 1995.  More than a quarter of a century later, I hope Senator Schumer is right about the fact that now is finally, finally "a moment to balance the scales of justice."

A few of many prior posts on the EQUAL Act:

May 24, 2022 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Monday, May 23, 2022

Notable (pandemic-impacted) justice data in "Federal Justice Statistics, 2020"

The Bureau of Justice Statistics has this new publication full of notable federal statistics under the title ""Federal Justice Statistics, 2020."  Here is how the 30-page document is briefly introduced:

Federal arrests declined 42% from fiscal year (FY) 2019 to FY 2020, reaching their lowest level since FY 2001. Of the 346,681 persons under federal correctional control at fiscal year-end 2020, about 56% were in secure confinement and 44% were on community supervision. This was a decline from fiscal year-end 2010, when 401,198 persons were under federal correctional control.

This report describes cases processed by the federal criminal justice system. Data are from the Federal Justice Statistics Program, which collects, standardizes, and reports on administrative data received from six federal justice agencies: the U.S. Marshals Service, Drug Enforcement Administration, Administrative Office of the U.S. Courts (AOUSC), Executive Office for U.S. Attorneys, Federal Bureau of Prisons (BOP), and U.S. Sentencing Commission.

There is way too much data in this document to summarize, though the impact of the pandemic is clear in a lot of the 2020 data points. Here are some sentencing/prison passages of note concerning fiscal year 2020 data:

Convicted males (69%) were sentenced to prison more often than convicted females (58%). Twenty-one percent of convicted females received a probation-only sentence, compared to 6% of convicted males. Convicted black defendants (85%) were the most likely to receive a prison sentence, followed by convicted American Indian or Alaska Native (79%); white (76%); Asian, Native Hawaiian, or Other Pacific Islander (67%); and Hispanic (60%) defendants.  Among those sentenced to prison, white and black defendants were both sentenced to a median of 60 months....

In FY 2020, a total of 36,914 federally sentenced persons were admitted to federal prison. Of these, 28,747 persons entered federal prison on U.S. district court commitments.  Another 8,167 persons were returned to federal prison for violating conditions of probation, parole, or supervised release or were admitted to federal prison for any reason other than a U.S. district court commitment.  Thirty-seven percent (21,972) fewer admissions occurred in FY 2020 than in FY 2019. (See Federal Justice Statistics, 2019 (NCJ 301158, BJS, October 2021).)  In FY 2020, a total of 13,619 persons entered federal prison for a drug offense, most of whom (10,415 or 76%) had been sentenced to more than 1 year.

A total of 59,044 persons were released from federal prison in FY 2020.  Most (45,694) were being released for the first time since their U.S. district court commitment.  Ten percent (6,537) fewer releases occurred in 2020 than in 2019. (See Federal Justice Statistics, 2019 (NCJ 301158, BJS, October 2021).)  There were 22,130 fewer persons in federal prison at the end of FY 2020 (September 30, 2020) than at the start of FY 2020 (October 1, 2019), a much larger drop than in previous years due in part to the federal response to the coronavirus pandemic.  The last time the year-end federal prison population was this low (132,291) was in 2000 (129,329).  From the start to the end of FY 2020, 8,039 fewer persons were in prison for a drug offense and 5,492 fewer were in prison for an immigration offense.

May 23, 2022 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Supreme Court decides, via usual 6-3 vote, to read AEDPA restrictively to limit federal habeas efforts

The Supreme Court this morning released two opinion, one of which dealt with federal habeas process in a capital case.  The ruling was the product of a 6-3 vote in Shinn v. Martinez Ramirez, No. 20-1009 (S. Ct. May 23, 2022) (available here), with the opinion for the Court authored by Justice Thomas and the dissent authored by Justice Sotomayor.  Here is how the opinion for the Court gets started:

A federal habeas court generally may consider a state prisoner’s federal claim only if he has first presented that claim to the state court in accordance with state procedures.  When the prisoner has failed to do so, and the state court would dismiss the claim on that basis, the claim is “procedurally defaulted.”  To overcome procedural default, the prisoner must demonstrate “cause” to excuse the procedural defect and “actual prejudice” if the federal court were to decline to hear his claim. Coleman v. Thompson, 501 U.S. 722, 750 (1991). In Martinez v. Ryan, 566 U.S. 1 (2012), this Court explained that ineffective assistance of postconviction counsel is “cause” to forgive procedural default of an ineffective-assistance-of-trial-counsel claim, but only if the State required the prisoner to raise that claim for the first time during state postconviction proceedings.

Often, a prisoner with a defaulted claim will ask a federal habeas court not only to consider his claim but also to permit him to introduce new evidence to support it.  Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the standard to expand the state-court record is a stringent one.  If a prisoner has “failed to develop the factual basis of a claim in State court proceedings,” a federal court “shall not hold an evidentiary hearing on the claim” unless the prisoner satisfies one of two narrow exceptions, see 28 U.S.C. §2254(e)(2)(A), and demonstrates that the new evidence will establish his innocence “by clear and convincing evidence,” §2254(e)(2)(B).  In all but these extraordinary cases, AEDPA “bars evidentiary hearings in federal habeas proceedings initiated by state prisoners.” McQuiggin v. Perkins, 569 U.S. 383, 395 (2013).

The question presented is whether the equitable rule announced in Martinez permits a federal court to dispense with §2254(e)(2)’s narrow limits because a prisoner’s state postconviction counsel negligently failed to develop the state-court record.  We conclude that it does not.

Here is how the dissent gets started:

The Sixth Amendment guarantees criminal defendants the right to the effective assistance of counsel at trial.  This Court has recognized that right as “a bedrock principle” that constitutes the very “foundation for our adversary system” of criminal justice.  Martinez v. Ryan, 566 U.S. 1, 12 (2012).  Today, however, the Court hamstrings the federal courts’ authority to safeguard that right. The Court’s decision will leave many people who were convicted in violation of the Sixth Amendment to face incarceration or even execution without any meaningful chance to vindicate their right to counsel.

In reaching its decision, the Court all but overrules two recent precedents that recognized a critical exception to the general rule that federal courts may not consider claims on habeas review that were not raised in state court. Just 10 years ago, the Court held that a federal court may consider a habeas petitioner’s substantial claim of ineffective assistance of trial counsel (a “trial-ineffectiveness” claim), even if not presented in state court, if the State barred the petitioner from asserting that claim until state postconviction proceedings, and the petitioner’s counsel in those proceedings was also ineffective. See id., at 17; see also Trevino v. Thaler, 569 U.S. 413, 429 (2013).  Martinez and Trevino establish that such a petitioner is not at fault for any failure to bring a trial-ineffectiveness claim in state court. Despite these precedents, the Court today holds that such a petitioner is nonetheless at fault for the ineffective assistance of postconviction counsel in developing the evidence of trial ineffectiveness in state court.  The Court instead holds that a petitioner in these circumstances, having received ineffective assistance of trial and postconviction counsel, is barred from developing such evidence in federal court.

This decision is perverse. It is illogical: It makes no sense to excuse a habeas petitioner’s counsel’s failure to raise a claim altogether because of ineffective assistance in postconviction proceedings, as Martinez and Trevino did, but to fault the same petitioner for that postconviction counsel’s failure to develop evidence in support of the trial-ineffectiveness claim. In so doing, the Court guts Martinez’s and Trevino’s core reasoning.  The Court also arrogates power from Congress: The Court’s analysis improperly reconfigures the balance Congress struck in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) between state interests and individual constitutional rights.

By the Court’s telling, its holding (however implausible) is compelled by statute.  Make no mistake.  Neither AEDPA nor this Court’s precedents require this result.  I respectfully dissent.

May 23, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Justice Breyer pens solo cert denial statement to again express concern with long death row stays

At the end of this short new SCOTUS order list, which is otherwise uneventful, Justice Stephen Breyer has a four-paragraph statement respecting the denial of certiorari in Smith v. Shinn.  In the statement, Justice Breyer continues his (generally solo) lament of long stays on death row.  Here are excerpts:

Joe Clarence Smith was first sentenced to death in 1977, more than 44 years ago....  In 2007, 30 years after Smith was first sentenced to death, he petitioned this Court to review the constitutionality of his death sentence.  He argued that it would be cruel and unusual to execute him after such a lengthy delay.  The Court denied certiorari, and I dissented because I believed that Smith could “reasonably claim that his execution at this late date would be ‘unusual’ . . . particularly when much of the delay at issue seems due to constitutionally defective sentencing proceedings.” Smith v. Arizona, 552 U.S. 985, 986 (2007)....

Smith’s case is now before us for the third time. By now, more than 44 years have passed since his first death sentence. Pet. for Cert. 2.  And he “has spent almost all of [that] time” in solitary confinement, “alone in a cell that . . . measures 86.4 square feet, or roughly the size of a compact parking space.” Id., at 3–4 (footnote omitted).  Smith tells us that only four other prisoners in all of the United States have been on death row longer than he has. Id., at 4–5, and n. 2.

We have said that the uncertainty of waiting in prison under threat of execution for just four weeks is “one of the most horrible feelings to which [a person] can be subjected.” In re Medley, 134 U.S. 160, 172 (1890).  On top of that, “[y]ears on end of near-total isolation exact a terrible price.” Davis v. Ayala, 576 U.S. 257, 289 (2015) (Kennedy, J., concurring). Smith has been subjected to those conditions, not for four weeks, but for four decades.  While I recognize, as I did in 2017, that procedural obstacles make it difficult for us to grant certiorari here, I continue to believe that the excessive length of time that Smith and others have spent on death row awaiting execution raises serious doubts about the constitutionality of the death penalty as it is currently administered.

May 23, 2022 in Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (1)

Sunday, May 22, 2022

"Canceling Compassion: Nonretroactivity and the Narrowing of Postconviction Relief in Federal Courts"

The title of this post is the title of this new paper authored by Carl Wu now available via SSRN.  Here is its abstract:

In 2018, Congress passed the First Step Act, which opened the door for incarcerated individuals to apply directly to district courts for release or a sentence reduction by way of compassionate release.  A form of postconviction relief, certain federal courts have narrowed the scope of eligibility for compassionate release based on a restrictive reading of what are “extraordinary and compelling” reasons for relief.  Specifically, these courts hold that nonretroactive changes in sentencing law cannot constitute such “extraordinary and compelling” reasons as a matter of law.  This article explores the now-intractable circuit split that has emerged on this issue, critiques the underlying non-textual motivations that have guided certain courts, and proposes an immediate resolution by the Supreme Court.  Yet the deep disagreement amongst the courts, which has precluded relief based solely on an individual’s geographic location, raises a further question: should courts be the sole arbiter of compassionate release?

May 22, 2022 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Saturday, May 21, 2022

Register for "Looking Ahead: Learning from Past Commission Leadership"

In this prior post, I noted the great weekly panel series that has been running through the month of May titled "The Role of the U.S. Sentencing Commission in Decarceration: First Step Act and Beyond."  This series has been put together by the Center for Justice and Human Dignity, a nonprofit organization whose mission is explained here in terms of seeking  "to reduce prison incarceration in the United States while improving conditions for those imprisoned and working inside."

This panel series concludes this coming Tuesday, May 24, at 12noon ET with a fourth and final panel titled "Looking Ahead: Learning from Past Commission Leadership." The discussion among former heads of the US Sentencing Commission and judges is especially timely given Prez Biden's nomination of seven new people to the US Sentencing Commission just earlier this month.  Everyone can and should register to attend this session (and review the entire series) here.  The speakers for all the panels have been terrific, and here are the folks participating in this last panel:

I had the distinct pleasure of helping just a bit with this panel, and the opportunity to hear from former Chairs of the US Sentencing Commission should never be missed.

Prior related posts:

May 21, 2022 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

Friday, May 20, 2022

Spotlighting the role of victims in advocating and advancing criminal justice refroms

This new Yahoo News article, headlined "Red states are enacting criminal justice reform at the urging of crime victims," is worth a full read. Here are excerpts from the lengthy piece:

In an effort to create the system of support he and others never had, [shooting victim Aswad] Thomas pivoted to a career where he could help other crime victims heal by joining Alliance for Safety and Justice (ASJ), a multistate public policy organization that promotes legislation on behalf of crime victims. The organization advocates for trauma centers in communities, less complicated probation laws and rehabilitation such as life skills programs and employment opportunities for the formerly incarcerated.

Since its founding in 2016, ASJ has won more than 50 campaigns tied directly to support for crime victims, including key wins in Republican-majority states that have been historically resistant to criminal justice reform....

These successes are a big reason why the CEO of ASJ, Jay Jordan, who spent eight years in prison for a robbery he committed in his teens, grimaces at the mention of criminal justice reform, instead calling it public safety — an important distinction that he says has garnered bipartisan support through the years.

“People often say, ‘Let's get tough on crime,’” Jordan told Yahoo News. “We say, ‘Let's get tough on safety.’ … We don’t see [states] as Republican or Democratic states. We see them as states where people live where people want to be safe.”...

In Ohio, India Brown, whose partner was murdered, was initially blocked from accessing victims’ compensation funds because of a previous teenage felony. Brown persuaded Gov. Mike DeWine and Attorney General Dave Yost, two Republicans, to fund trauma recovery centers and remove barriers to victims’ compensation. This would ensure that families have emotional support and financial stability. “I wrestled with unspeakable grief,” Brown wrote in an op-ed for the Columbus Dispatch.

And in Texas last summer, veteran Melvin Halsey, along with other crime victims, helped advocate for reform of the state’s probation system. Tens of thousands of Texans will no longer be sent back to prison for technical violations as a result. “Black people make up 13% of the population in Texas, but we’re 33% of the state’s incarcerated population,” Halsey wrote in an op-ed for the Austin American-Statesman last year. “A system that focuses on helping people rehabilitate ourselves rather than doling out harsh punishments is not only the right thing to do, it makes communities safer and saves Texas money too.”

May 20, 2022 in Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (3)

Thursday, May 19, 2022

"Paying for a Clean Record"

The title of this post is the title of this new paper authored by Amy Kimpel and just published in the Journal of Criminal Law & Criminology. Her is its abstract

Prosecutors and courts often charge a premium for the ability to avoid or erase a criminal conviction.  Defendants with means, who tend to be predominantly White, can often pay for a clean record.  But the indigent who are unable to pay, and are disproportionately Black and Brown, are saddled with the stigma of a criminal record.  Diversion and expungement are two popular reforms that were promulgated as ways to reduce the scale of the criminal legal system and mitigate the impact of mass criminalization.  Diversion allows a defendant to earn dismissal of a charge by satisfying conditions set by the prosecutor or court, thereby avoiding conviction.  Expungement seals or erases the defendant’s record of arrest or conviction.  Some diversion and expungement programs are cost-free, but most are not.  Yet a criminal record carries its own costs.  A criminal record can limit where an individual can live, go to school, and whether they receive public benefits.  As 93% of employers conduct background checks on job applicants, the inability to avoid a criminal record can create barriers to employment and the accumulation of wealth.  Costly diversion and expungement programs further calcify race and class divides, contributing to the construction of a permanent underclass.

This Article examines the promises and pitfalls of diversion and expungement as means to combat mass criminalization.  These two mechanisms work in tandem to provide access to a “clean record,” but not enough attention has been paid to the dangers they present due to differential access to clean records based on financial means.  This Article considers legal challenges to the current schemes and explains how requiring defendants to pay for a clean record enables courts and prosecutors to profit from the perpetuation of racial caste.  Ultimately, this Article argues that the impacts of diversion and expungement programs are more modest than reformers claim, and that these programs need to be offered at no cost if they are to succeed in achieving the goal of reducing racial disparities in our criminal courts and in society at large.

May 19, 2022 in Collateral consequences, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (3)

Notable new research report explores role of federal defense counsel type in case outcomes

I just came across this interesting new "research report" from the Urban Institute titled "Counsel Type in Federal Criminal Court Cases, 2015-18." The report was produced for the Bureau of Justice Statistics, and here is its abstract:

This paper examines the role that the type of defense counsel plays in federal justice system outcomes.  We begin with a background on federal indigent defense systems and a review of the prior research examining the impact of counsel type on sentencing.  We then describe the study and present our descriptive results, which explore the frequency and variation in the use of each type of defense counsel (public defenders, assigned counsel, and private attorneys) and other key variables (disposition, incarceration decision, sentence length, year, district, case, and defendant characteristics).  Next, we model the outcomes of incarceration and sentence length to test whether type of counsel significantly impacts these decisions after controlling for legal and extra-legal factors.  Lastly, the results are summarized and situated in a broader understanding of the federal justice system.

Here is a key paragraph from the report's conclusion:

Our study found that counsel type does vary across several key variables.  For example, defendants who utilize federal public defenders had higher rates of accepting a plea deal than those who were provided a CJA panel attorney or who retained a private attorney.  However, the findings from our regression models indicate that individuals represented by CJA panel attorneys and private counsel have 18-25% greater odds of being sent to prison once convicted than those represented by a federal public defender, controlling for numerous legal and extra-legal factors.  Likewise, individuals represented by private and CJA panel attorneys received 4-8% longer sentences than those who used a public defender.  Taken together, these findings suggest that federal public defenders are an important part of the federal courtroom workgroup with specific expertise in federal criminal cases and more familiarity with the judges and prosecutors.  As a result, federal public defenders may be more likely to encourage their clients to take plea deals but may also secure their clients favorable sentencing outcomes.

I find this research so very interesting for so many reasons.  Notably, one of my early academic articles written more than two decades ago and before the guidelines became advisory, titled "From Lawlessness to Too Much Law? Exploring the Risk of Disparity from Differences in Defense Counsel Under Guidelines Sentencing," focused on my concerns about the impact that different defense counsel can have on sentencing outcomes.

May 19, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5)

Wednesday, May 18, 2022

House Judiciary Subcommittee to hold oversight hearing on clemency and office of Pardon Attorney

As detailed at this official webpage, the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security is holding a hearing tomorrow titled "Oversight Hearing on Clemency and the Office of the Pardon Attorney."  Interestingly, as detailed via this witness list, Representative Ayanna Pressley will be the first witness.  This press release from Rep. Pressley's office may provide a preview of what she plans to talk about:

Today, Congresswoman Ayanna Pressley (MA-07), along with Congresswoman Mary Gay Scanlon (PA-05), Congressman David Joyce (OH-14), and Congressman Kelly Armstrong (ND-AL) urged Pardon Attorney Elizabeth Oyer to release disaggregated demographic data on the more than 17,000 pending clemency applications to better understand the current broken clemency process and address its impacts on constituents and communities....

In their letter, the lawmakers asked Pardon Attorney Oyer to provide a report by June 7, 2022 on all pending clemency applications detailing applicant demographic data, month and year of application submission, representation by an attorney, type of clemency request, type of relief sought, type of offense(s), and office currently reviewing application....

In December, Rep. Pressley, along with Representatives Cori Bush (MO-01), Hakeem Jeffries (NY-08) and grassroots advocates, unveiled the Fair and Independent Experts in Clemency (FIX Clemency) Act, historic legislation to transform our nation’s broken clemency system and address the mass incarceration crisis. 

This new Bloomberg piece, headlined "Lawmakers Press DOJ on Backlog of 17,000 Clemency Petitions," provides some context for this letter:

Some advocates for clemency say it can be used to address racial inequity in the criminal justice system. Black inmates account for 38.3% of the federal prison population, according to the Federal Bureau of Prisons, despite making up only 13% of the US population.

Between 2012 and 2016, Black men received 19.1% longer sentences for the same federal crimes as White men, according to a 2017 US Sentencing Commission report. Another 2017 report from National Registration of Exonerations found Black people are more likely to be wrongfully convicted than White people and receive longer sentences.

“Every application represents a person, a family, and a community,” the lawmakers wrote in the letter. “And every delayed response represents a miscarriage of justice, a dysfunctional process, and a policy failure in desperate need of repair.”

I suspect Rep. Pressley's testimony to start this oversight hearing could prove to be real interesting.  And, following here, the hearing schedule sets out this all-start set of witnesses:

UPDATE:  As of the morning of the hearing, one can find the written testimony of all the scheduled witnesses at this official House Judiciary webpage.  The testimony makes for interesting reads, though the professional history of the witnesses make what they have to say generally predictable.

May 18, 2022 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

"Criminal Law Exceptionalism"

The title of this post is the title of this new article on SSRN authored by Benjamin Levin.  Here is its abstract:

For over half a century, U.S. prison populations have ballooned and criminal codes have expanded.  In recent years, a growing awareness of mass incarceration and the harms of criminal law across lines of race and class has led to a backlash of anti-carceral commentary and social movement energy.  Academics and activists have adopted a critical posture, offering not only small-bore reforms, but full-fledged arguments for the abolition of prisons, police, and criminal legal institutions.  Where criminal law was once embraced by commentators as a catchall solution to social problems, increasingly it is being rejected, or at least questioned.  Instead of a space of moral clarity, the “criminal justice system” is frequently identified by critical scholars and activists as a space of racial subordination, widespread inequality, and rampant institutional violence.

In this Article, I applaud that critical turn.  But, I argue that, when taken seriously, contemporary critiques of the criminal system raise foundational questions about power and governance — issues that should transcend the civil/criminal divide and, in some cases, even the distinction between state and private action.  What if the problem with the criminal system isn’t exclusively its criminal-ness, but rather is the way in which it is embedded in and reflective of a set of problematic beliefs about how society should be structured and how people should be governed? What if the problems with criminal law are illustrative, rather than exceptional? Ultimately, I argue that the current moment should invite a de-exceptionalization of criminal law and a broader reckoning with the distributive consequences and punitive impulses that define the criminal system’s functioning — and, in turn, define so many other features of U.S. political economy beyond criminal law and its administration.

May 18, 2022 in Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Tuesday, May 17, 2022

You be the judge: what federal sentence for former reality star Josh Duggar after child pornography convictions?

In this post back in December, I asked "How many years and counting might reality TV star Josh Duggar now get after federal jury convictions on two child pornography charges?," and I speculated that he could be looking at a federal guideline range of a decade or longer.   This month, sentencing memos were submitted ahead of Duggar's scheduled sentencing on May 25, and the start of the Government's 32-page Sentencing Memorandum notes the guideline calculation and the statutory ceiling in this matter, as well at the Government's sentencing recommendation:

U.S. Probation’s Case calculation under the United States Sentencing Guidelines (Guidelines) set out in the final PSR reflects an advisory range of imprisonment of 360 months to life, which will be capped by the offense maximum of 240 months set by statute for Count One in the Indictment....

Based on all the facts of the case, including Duggar’s prior sexual exploitation of multiple minors discussed herein, and in consideration of the extraordinary efforts Duggar took to obtain and view child sexual abuse material (CSAM), the nature of the CSAM he obtained and viewed, his efforts to conceal his criminal conduct, and his refusal to take accountability for or acknowledge any of his criminal conduct, the Government recommends the Court impose a guideline term of imprisonment of 240 months.

Defendant Duggar's Sentencing Memorandum and Motion for Downward Variance, which also runs 32 pages, concludes its introduction with a very different recommendation:

[W]hile he maintains his innocence and intends to exercise his right to an appeal, Duggar accepts that the crime for which he is being sentenced is serious and that this Court must impose a punishment.  But in crafting that punishment, Duggar asks that this Court consider this crime within its proper context and consider the person Duggar really is.  It is against this backdrop that Duggar respectfully requests that this Court sentence him to 60 months’ imprisonment as that is “sufficient, but not greater than necessary.” 18 U.S.C. § 3553(a).  As evidenced by his perfect performance on pretrial bond, no matter what sentence is ultimately imposed, this is a defendant who will never find himself before this, or any other, Court ever again and a defendant who will abide by whatever conditions of supervised release this Court imposes.

This lengthy Law & Crime article, headlined "Federal Prosecutors Urge Judge to Hand Josh Duggar Maximum Punishment for Downloading ‘Depraved’ Child Sexual Abuse Materials," provides some more context for the sentencing advocacy in this celebrity(?) case.

Prior related post:

May 17, 2022 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines | Permalink | Comments (14)

US Sentencing Commission releases notable new report on recidivism rates for federal prisoners completing drug programs

The US Sentencing Commission today released this lengthy new report titled "Recidivism and Federal Bureau of Prisons Programs: Drug Program Participants Released in 2010." This report is the fifth in a series continuing the USSC's detailed examination of recidivism by federal offenders released in 2010.  This USSC webpage provides this brief account of the coverage and findings of the report:

In this report, the Commission provides an analysis of data on the recidivism of federal offenders who participated in Federal Bureau of Prisons (BOP) drug abuse treatment while incarcerated. The study examines whether completion of drug programs offered by the BOP impacted recidivism among a cohort of federal offenders who were released from prison in calendar year 2010. The report combines data regularly collected by the Commission, Federal Bureau of Investigation (FBI) criminal history records, and data on program completion and participation provided by the BOP.

In this report, Drug Program Participants were offenders who participated in one of the following programs:

  • Residential Drug Abuse Program (RDAP)
    • The first group comprises 8,474 offenders who the BOP marked as eligible to participate in RDAP while serving time in BOP custody.
    • RDAP is the BOP’s “most intensive” drug treatment program and requires that participants receive treatment in a specialized unit that houses only RDAP participants
       
  • Non-Residential Drug Abuse Program (NRDAP)
    • The second group comprises 4,446 offenders who were marked as eligible to participate in NRDAP.
    • NRDAP consists of drug treatment, conducted primarily in a group setting, over the course of 12 to 24 weeks.

    Key Findings

    This study observed a significant reduction in the likelihood of recidivism for offenders who completed the Residential Drug Abuse Treatment Program or the Non-Residential Drug Abuse Treatment Program.

    • RDAP Completers had lower rates of recidivism, compared to eligible offenders who did not complete or participate in the program. Less than half of RDAP Completers (48.2%) recidivated in the eight-year follow-up period of this study, compared to 68.0 percent of RDAP Eligible Non-Participants.
      • RDAP Completers were 27 percent less likely to recidivate compared to RDAP-Eligible Non-Participants.
      • RDAP Completers had higher post-release rates of drug-related recidivism, compared to RDAP Participants and RDAP Eligible Non-Participants.
    • NRDAP Completers had lower recidivism rates compared to offenders who did not complete or participate in the program. Nearly half (49.9%) of offenders who completed NRDAP recidivated during the study period, compared to over half (54.0%) of NRDAP Eligible Non-Participants.
      • NRDAP Completers were 17 percent less likely to recidivate compared to eligible non-participants and offenders with a history of substance abuse who served at least five months in BOP custody.

May 17, 2022 in Detailed sentencing data, Drug Offense Sentencing, Reentry and community supervision | Permalink | Comments (2)

"Unequal Treatment: (In)compassionate Release from Federal Prison in the Context of the COVID-19 Pandemic and Vaccine"

The title of this post is the title of this new piece now available via SSRN authored by Mariah Haley. Here is its abstract:

COVID-19, the disease caused by SARS-CoV-2, has wreaked havoc globally since it was first discovered in December 2019.  In the United States, many federal prisons experienced outbreaks of the virus, leading to both severe illness and death.  Almost as soon as the pandemic began in the United States, people in prison — especially those with preexisting conditions — turned to the statutory mechanism known as “compassionate release” to request early release from prison based on the “extraordinary and compelling” nature of the pandemic.

This Note examines how federal courts have considered compassionate release requests during the pandemic.  The Note further explores the disparate outcomes resulting from the vast judicial discretion within the compassionate release space.  While no two compassionate release cases are the same, with cases very fact-intensive, this Note argues that the current system results in inequitable geographical-based outcomes.  In concluding, this Note calls on the United States Sentencing Commission to offer guidance to federal courts on how to approach compassionate release requests in the context of the First Step Act and the ongoing COVID-19 pandemic.

May 17, 2022 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, May 16, 2022

Will feds consider a capital prosecution of the racist Buffalo mass murderer?

A little less than seven years ago, I asked in this post whether the state of South Carolina or the feds (or both) would capitally prosecute racist mass murderer Dylann Storm Roof after he slaughtered nine people at a historic black church in Charleston.  The feds decided to take the lead pursuing and securing a federal death sentence for Roof, which he is currently appealing to the Supreme Court.

Sadly, this past weekend saw another horrific racist mass murder in Buffalo.  But this time, because New York does not have the death penalty, only the feds are in a position to pursue a capital prosecution.  This local article, headlined "Many paths possible in prosecution of man accused of slaying 10 at Tops," provides this account of the legal lay of the land:

The Erie County District Attorney's Office and federal prosecutors each will have the chance to prosecute the man accused of slaying 10 people and wounding three others in Saturday's hate-inspired attack in a predominantly Black neighborhood in Buffalo.

But there is no definitive answer yet on precisely what that process will look like. Payton S. Gendron, 18, already faces a state charge of first-degree murder for the massacre at the Tops Markets on Jefferson Avenue. Federal authorities have said they are investigating the mass killing "both as a hate crime and racially motivated violent extremism."

While New York State has no death penalty, the federal government does. A decision by federal prosecutors on whether to seek the death penalty is likely months away, according to veteran area defense attorneys.

Gendron can simultaneously face charges in both state and federal court, or one case can proceed before the other. Being charged in both state and federal courts would not violate the constitutional prohibition on "double jeopardy" because both levels of authority have jurisdiction at the same time, said Thomas J. Eoannou, a defense attorney who is not involved in representing Gendron. "The legal process will be very involved," Eoannou said, even though the evidence "appears, at this point, to be overwhelming."

If convicted of first-degree murder in state court, the maximum sentence Gendron faces is life in prison with no possibility of parole.... Gendron currently faces a murder count that encompasses all 10 victims who were killed, and county prosecutors are still evaluating potential options for what he may be charged with, the district attorney said....

It will be "fairly easy" for federal prosecutors to charge Gendron with a hate crime, based on the contents of his racist diatribe and what was written on the gun he used, defense attorney Paul J. Cambria Jr. said....

Some attorneys, including Eoannou and Joseph J. Terranova, said they expect the federal prosecution to happen first. A recent case similar to what happened here, Eoannou said, is that of Dylann Roof, who killed nine people at an historically Black church in Charleston, S.C., in 2015. Roof was first prosecuted federally and received the death penalty. Then he pleaded guilty in state court.

The decision on whether to seek the death penalty would come from U.S. Department of Justice officials in Washington, D.C., and a federal jury's decision to impose the death penalty would have to be unanimous, Eoannou said.

May 16, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

SCOTUS finally grants cert to clarify paths of federal collateral review based on 2241 (and savings clause of 2255)

The Supreme Court this morning issued an order list with lots of cert denials, but one cert grant that ought to interest sentencing fans.  Specifically, the Justices took up Jones v. Hendrix, No. 21-847, which concern the availability of collateral review by federal prisoners in federal courts.  Here is how SCOTUSblog briefly describes the issue in this case:

Whether federal inmates who did not — because established circuit precedent stood firmly against them — challenge their convictions on the ground that the statute of conviction did not criminalize their activity may apply for habeas relief under 28 U.S.C § 2241 after the Supreme Court later makes clear in a retroactively applicable decision that the circuit precedent was wrong and that they are legally innocent of the crime of conviction.

A review of the cert petition shows that Marcus DeAngelo Jones was sentenced to over 27 years in federal prison on gun charges back in 2000 and now wants to be able to press a claim based on Rehaif. Here is how this petition sets forth the question presented:

Under 28 U.S.C. § 2255, federal inmates can collaterally challenge their convictions on any ground cognizable on collateral review, with successive attacks limited to certain claims that indicate factual innocence or that rely on constitutional-law decisions made retroactive by this Court. 28 U.S.C. § 2255(h).  28 U.S.C. § 2255(e), however, also allows inmates to collaterally challenge their convictions outside this process through a traditional habeas action under 28 U.S.C. § 2241 whenever it “appears that the remedy by [§ 2255] motion is inadequate or ineffective to test the legality of [their] detention.”

The question presented is whether federal inmates who did not — because established circuit precedent stood firmly against them — challenge their convictions on the ground that the statute of conviction did not criminalize their activity may apply for habeas relief under § 2241 after this Court later makes clear in a retroactively applicable decision that the circuit precedent was wrong and that they are legally innocent of the crime of conviction.

The cert petition goes on to note that federal courts and commentators have been urging SCOTUS to take up this issue for many years because of the deep split in circuit jurisprudence.

May 16, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Sunday, May 15, 2022

"The Prosecutor Lobby"

The title of this post is the title of this new article on SSRN authored by Carissa Byrne Hessick, Ronald Wright and Jessica Pishko. Here is its abstract:

Prosecutors shape the use of the criminal law at many points during criminal proceedings, but there is also an earlier point in the process where prosecutors have influence: during the legislative process.  The conventional wisdom in the legal literature is that prosecutors are powerful and successful lobbyists who routinely support laws that make the criminal law more punitive and oppose criminal justice reform.  In this article, we test that narrative with an empirical assessment of prosecutor lobbying in America.  Using an original dataset of four years of legislative activity from all 50 states, we analyze how often prosecutors lobbied, the issues on which they lobbied, the positions they took, and how often they succeeded.

Our data tell a complex story of partial success for the prosecutor lobby.  Prosecutors are less successful than expected when lobbying against bills, and they are most successful when lobbying in favor of criminal justice reform.  By analyzing not only national data, but also data from each state, we document that prosecutorial success is correlated with Republican control of the state legislature.  We further conclude that perceived expertise does not drive prosecutorial lobbying success, and that legislatures in some contexts respond to the prosecutor lobby much as they would to any other self-interested rent-seeking lobbyists.

May 15, 2022 in Who Sentences | Permalink | Comments (2)

Register for "Sentencing Review and Reduction: Open Questions and Next Steps for the Commission"

In this prior post, I noted the great weekly panel series for the month of May titled "The Role of the U.S. Sentencing Commission in Decarceration: First Step Act and Beyond."  This series has been put together by the Center for Justice and Human Dignity, a nonprofit organization whose mission is explained here in terms of seeking  "to reduce prison incarceration in the United States while improving conditions for those imprisoned and working inside."

This panel series is running every Tuesdays in May at 12noon ET, which means the third panel is scheduled taking place this coming Tuesday, May 17th.  This panel is titled "Sentencing Review and Reduction: Open Questions and Next Steps for the Commission," and the discussion is especially timely given Prez Biden's nomination of seven people to the US Sentencing Commission just last week.  Everyone can and should register to attend next week's session and the entire series here.  The speakers for all the panels are terrific, and here are the folks participating in this latest panel:

Elizabeth Blackwood, Counsel & Director for the First Step Act Resource Center at the National Association of Criminal Defense Lawyer

Marisa Taney, Associate at Debevoise & Plimpton LLP, Holloway Project

I had the honor of helping to moderate the final panel, which airs next week, and it is titled Looking Ahead: Learning from Past Commission Leadership (Tuesday, May 24 12pm ET).

Prior related posts:

May 15, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, May 14, 2022

"Plea Bargaining’s Uncertainty Problem"

The title of this post is the title of this notable new article authored by Jeffrey Bellin available via SSRN. Here is its abstract:

While commentators roundly condemn plea bargaining, the criticism can be as muddled as the practice itself.  Critics’ primary target is the “trial penalty.”  But a differential between guilty-plea and trial sentences seems inevitable in any system that allows defendants to concede guilt.  And, as a new wave of “progressive prosecutors” is demonstrating, gaps between (unusually lenient) plea offers and long (potential) post-trial sentences are not only a strong incentive to plead guilty but also a powerful tool for reducing American penal severity.  Other critiques point to flaws that parallel those found in the broader system, overlooking that plea bargaining is typically a reflection of these flaws, not their source.

Finding the traditional critiques lacking, this Article highlights uncertainty as the core problem with plea bargaining.  It is easy to overlook uncertainty because analysis of plea bargains usually focuses on cases after they have been resolved.  Yet from the perspective of someone accused of a crime who is deciding whether to plead guilty, uncertainty is key.  And while some uncertainty is inevitable, in many scenarios, plea bargaining turns the defendant’s choice into something resembling a floor bet at a Las Vegas casino — a solemn spectacle of plea-bargaining roulette.

Identifying uncertainty as plea bargaining’s distinct contribution to American dysfunction is important for two reasons. First, it provides a realistic blueprint for improving the largely unregulated plea-bargaining process — this country’s dominant mechanism for resolving criminal cases.  Second, by suggesting that plea bargaining is not the primary source of other important problems, like excess severity or wrongful convictions, the analysis helps to redirect reform efforts targeting those important problems to areas where they may be more effective.

May 14, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)