Wednesday, April 17, 2024

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

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

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

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

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

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

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

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

April 17, 2024 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

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

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

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

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

April 17, 2024 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, April 16, 2024

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

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

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

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

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

Background: 

  • The Sentencing Commission is made up of seven voting members. No more than four members can belong to the same political party. 
  • In a sharp break from its traditional bipartisan practices, the Commission’s current leadership has forced through several major policy changes to federal sentencing law on a party-line basis.
  • The Commission is currently considering several other major proposed changes.

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

Full text of the Consensus in Sentencing Act is available here

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

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

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

April 16, 2024 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

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

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

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

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

April 16, 2024 in Offense Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (2)

Latest accounting of Jan 6 prosecutions and sentences

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

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

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

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

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

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

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

April 16, 2024 in Celebrity sentencings, Offense Characteristics, Scope of Imprisonment | Permalink | Comments (8)

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

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

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

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

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

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

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

April 16, 2024 in National and State Crime Data, Reentry and community supervision | Permalink | Comments (0)

Monday, April 15, 2024

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

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

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

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

Nicole Davis, Executive Director, Talk2Me Foundation

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

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

April 15, 2024 in Prisons and prisoners, Who Sentences | Permalink | Comments (1)

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

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

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

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

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

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

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

April 15, 2024 in Celebrity sentencings, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (7)

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

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

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

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

April 15, 2024 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

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

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

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

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

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

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

April 15, 2024 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, April 14, 2024

Lots of criminal justice issues this week at SCOTUS oral arguments

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

 

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

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

 

Chiaverini v. City of Napoleon, OhioNo. 23-50 [Arg: 4.15.2024]

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

 

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

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

 

Thornell v. JonesNo. 22-982 [Arg: 4.17.2024]

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

April 14, 2024 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

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

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

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

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

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

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

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

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

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

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

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

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

A few prior related posts on recent crime trends:

April 14, 2024 in National and State Crime Data | Permalink | Comments (3)

Friday, April 12, 2024

New study highlights appellate reversals of excessive sentences in New York

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

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

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

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

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

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

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

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

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

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

April 12, 2024 in Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, April 11, 2024

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

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

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

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

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

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

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

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

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

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

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

April 11, 2024 in Data on sentencing, Detailed sentencing data, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (26)

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

In this prior post a couple of weeks ago, I set out a call for papers for a forthcoming issue of the Federal Sentencing Reporter to note (and celebrate? criticize?) the federal sentencing system's 20 years of functioning under the rules created in Booker.  I plan to repost this call every few weeks until the deadline thoward the end of May.  So:M_ucpfsr_29_4_cover

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

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

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

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

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

April 11, 2024 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Wednesday, April 10, 2024

Might the Supreme Court completely rewrite Eighth Amendment jurisprudence in the Grants Pass case?

The question in the title of this post is discussed at some length in this new Marshall Project piece, which carries this full headline: "This Supreme Court Case on Homelessness May Limit Prisoner Rights and Expand Executions: In Grants Pass v. Johnson, a town in Oregon asks the court to reconsider what constitutes “cruel and unusual punishments."  I recommend the whole article, and here are a few excerpts:

When the Supreme Court hears the case of Grants Pass v. Johnson later this month, the justices will consider how far cities can go in policing homeless people. But just as the court swept away a half-century of precedent by overturning Roe v. Wade, the justices could use this case about homelessness to upend how we interpret four key words in the Bill of Rights — “cruel and unusual punishments.” Their decision could have ramifications across a wide swath of the criminal justice system, including prison conditions and the death penalty.

The case is about whether the city of Grants Pass, Oregon, violates the Constitution’s Eighth Amendment when it arrests, fines and even jails people without homes for sleeping outside.  A lower federal court recently ruled that punishing people for doing something they cannot help is cruel and unusual punishment. “As long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter,” the Ninth Circuit Court of Appeals wrote.

Grants Pass appealed the ruling up to the Supreme Court, which will hear oral arguments on April 22, positing that the courts have no business telling cities what behavior they can regulate.  The Eighth Amendment, they say, applies to punishments levied after a crime, not laws that establish what is a crime in the first place, and besides, fines and jail time are hardly cruel or unusual. 

At the heart of this debate are two very different ways of reading the Eighth Amendment.  First, there’s originalism.  In recent sweeping decisions on abortion and guns, conservative justices have focused on what the Constitution’s language meant to the men who wrote it in the 1780s.  But other judges and scholars argue for a “living” Constitution, whose meaning should change as the world changes....

Using the evolving standards argument, federal courts have ruled on access to health care in prison, protection from excessive force and limits on the use of solitary confinement. They have prohibited the death penalty and mandatory life-without-parole sentences for people who are younger than 18 when they commit crimes, as well as executions of people with intellectual disabilities. The language has also served as the basis for decades of decisions requiring that juries consider people’s individual, often trauma-filled lives before deciding whether to send them to death row.... 

More than 100 scholars and organizations have filed “friend of the court” briefs ahead of oral arguments in Grants Pass v. Johnson.  Many argue the court should let these rulings stand and continue to look to contemporary standards when deciding what is cruel and unusual. In one brief on the other side, Republican attorneys general from 20 states urged the justices to throw out the evolving standards interpretation entirely.  (Many of them also made similar arguments in a separate case, supporting Alabama’s request to execute a man with an intellectual disability.)  Among their reasons are that it “has no discernible end point” and that it requires “judges to act as sociologists.”

I somewhat doubt that many Justices will be inclined to use the Grants Pass csse to dramatically rewrite Eighth Amendment jurisprudence, but I understand why various folks are hoping or fearing such a possibility.  And, perhaps ironically, the fact that many amici have filled briefs urging the Court not to approach this case more broadly might perhaps incline some Justices to approach the case more broadly.  But in a Term full of high-profile cases with lots of broad echoes, the Justices may want to keep this one relatively simple.  And perhaps we will get a sense of matters during oral arguments in a couple of week.  In other woids, stay tuned.

April 10, 2024 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Lots of notable new items on the US Sentencing Commission's website including geographic FY 2023 sentencing data

Though we are still a week away from hearing from the US Sentencing Commission about possible new amendments to the US Sentencing Guidelines, I noted that the Commission has updated its website with a bunch of new items that seemed worth flagging.  These are drawn from the new items scroll from the USSC website homepage:

TRAINING SESSIONS ARCHIVE (April 8, 2024)

You can now explore an archive of the Commission's recorded training sessions. Use the filters within the archive to find the training session that meets your specific needs. Learn More

PROBLEM-SOLVING COURTS PODCAST MINISERIES (April 9, 2024)

In this podcast miniseries, Commission staff chat with the federal judges who lead the problem-solving court programs available around the country. Parts One through Seven are out now!  Listen Here

FY23 GEOGRAPHIC SENTENCING DATA (April 8, 2024)

These data reports compare fiscal year 2023 sentencing statistics for each federal circuit, district, and state to the nation as a whole. Learn More

BASICS OF CRIMINAL HISTORY (April 8, 2024)

This updated eLearning module uses real-world scenarios to illustrate the basics of the criminal history rules as amended in 2023. Learn More

I find all the USSC's materials and content interesting, but my data nerdiness really gets hit by the data reports page with fiscal year 2023 sentencing statistics for each federal circuit, district, and state.  That page includes a US map that allows you to see that the border district of Maine had only 116 federal sentencings in FY 2023, whereas the border district of the Western District of Texas had 7,539 federal sentencings in FY 2023.  And that the District Utah had more federal sentencings in FY 2023 sentencings (761) than did New Jersey (723), even though New Jersey has nearly three times the overall population as Utah.  

April 10, 2024 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (2)

Is Rahimi an "easy case" for any true originalist to rule for the criminal defendant and against the prosecution?

I have not written much recently about US v. Rahimi, in part because there is not much to write about while we wait to see how the Supreme Court chooses to apply its (new originalist) Second Amendment test to the federal criminal firearm prohibition of gun possession by persons subject to domestic violence restraining orders, 18 USC § 922(g)(8).  Moreover, based on the November Rahimi SCOTUS oral argument, it seemed like a majority of the Justices were quite disinclined to agree with the Fifth Circuit's view that a criminal bar on gun posession by those subject to domestic violence restraining orders is unconstituional. 

But Nelson Lund has this notable new New York Times opinion piece, headlined "The Fidelity of ‘Originalist’ Justices Is About to Be Tested," which prompted the quesiton in the title of this post.  Here are excerpts from the piece:

Under Bruen’s originalist test, Rahimi should be an easy case. The government has not informed the Supreme Court of a single pre-20th-century law that punished American citizens, even those who had been convicted of a violent crime, for possessing a gun in their own homes. Not one.

The subject of the case, Zackey Rahimi, however, is an unsympathetic defendant.  His ex-girlfriend obtained a protective order against him on the ground that he had assaulted her, and he has been charged with several crimes involving the misuse of firearms.  Although he apparently had not been convicted of any offenses when the restraining order was issued, that order immediately and automatically criminalized his possession of a firearm under federal law.

If the court pretends that a historical tradition of such laws existed, it will not be faithful either to Bruen’s holding or to the court’s repeated insistence that the right to keep and bear arms is not “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.”

Imagine that an overwrought woman called her ex-boyfriend and threatened to scratch his eyes out.  If a state court ordered her to refrain from making such calls and from physically attacking him, the federal statute at issue in Rahimi would automatically make her a felon if she kept a gun in her own home.  And that would be true even if she had good reason to fear a violent attack from the ex-boyfriend or his criminal associates.  But no court would uphold a statute that made this restraining order a sufficient basis on which to criminalize her possession of a telephone.  We will soon find out whether the Supreme Court takes the Second Amendment as seriously as the First.

I generally do not find the analogy between guns and telephones (and between the Second and First Amendments) to be all that apt.  But I do find quite notable the suggestion that any true originalists should find it "easy" to determine the unconstitutionality of any laws that threaten to punish criminally any "American citizens, even those who had been convicted of a violent crime, for possessing a gun in their own homes."  In the votes and voices of a number of Justices (and others), I sometimes notice that affinity for originalism starts running out of steam when the outcomes start running in concerning directions.  Rahimi may prove to be another data point on that front in the coming months.

April 10, 2024 in Gun policy and sentencing, Second Amendment issues, Who Sentences | Permalink | Comments (1)

A second chance to celebrate Second Chance Month by registering for "Relief in the Making" conference starting tomorrow!

6a00d83451574769e202c8d3ab0640200cIn this post a few weeks ago, I flagged the President's "Proclamation on Second Chance Month, 2024" and its call for "all the people of the United States to observe this month with appropriate programs, ceremonies, and activities."  In so doing, I highlighted this exciting event taking place here at The Ohio State University Moritz College of Law titled "Relief in the Making: The Policy, Implementation, and Impact of Record Sealing and Expungement Laws." Here are the essentials:

The Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law will host a symposium titled "Relief in the Making: The Policy, Implementation, and Impact of Rights Restoration Laws" on April 11-12, 2024 in Drinko Hall at The Ohio State University in Columbus, Ohio. The symposium aims to examine and assess, from a variety of perspectives and with the help of a variety of voices, recent legal and policy developments regarding collateral consequences, record relief efforts, and broader concerns of justice and fairness for individuals and communities with criminal justice system involvement.

This is a free event which now is just a day away (though the full series of public panels takes place on Friday).  Folks can register at this link, and here is the full program link, and here is a bit more background from this event page

For years, advocates spoke about the “invisible punishment” flowing from the legal restrictions and societal stigmas that burden people with any criminal record long after involvement with the justice system.  But the many concerns surrounding so-called “collateral consequences” have become more visible in legal and policy circles in recent years. Over the past decade, dozens of states have enacted laws seeking to reduce the barriers people with a criminal record face in the workplace, in housing, at the ballot box, and many other areas. 

These developments have been characterized by the Collateral Consequences Resource Center as “a full-fledged law reform movement aimed at restoring rights and dignity to individuals who have successfully navigated the criminal law system.”  But the import and impact of this modern reform movement remains unclear, in part because record relief laws and practices differ widely across jurisdictions.  Some states have made only modest reforms to their record sealing laws, while other states have enacted ambitious automatic record relief systems.  And the practical impact of record relief reforms vary dramatically depending on not just the reach of the laws, but also the resources that are devoted to implementing these laws. Intriguingly, as record relief efforts have spread at the state level, federal record relief continues to languish.

April 10, 2024 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Tuesday, April 9, 2024

Missouri completes execution of double murderer over notable clemency requests

As reported in this AP piece, a "Missouri man was executed Tuesday for killing his cousin and her husband nearly two decades ago in an attack that left the couple’s 4-year-old daughter home alone and unharmed."  Here is more:

Brian Dorsey, 52, was pronounced dead at 6:11 p.m. after a single-dose injection of the sedative pentobarbital at the state prison in Bonne Terre, Karen Pojmann, communications director for the Missouri Department of Corrections, said in an email.  It was the first execution in Missouri this year after four in 2023, and it came hours after the U.S. Supreme Court rejected the inmate’s final appeals....

Dorsey, in a final statement, expressed remorse and sorrow for the killings. “Words cannot hold the just weight of my guilt and shame,” Dorsey said in the written statement.

Dorsey, 52, formerly of Jefferson City, was convicted of killing Sarah and Ben Bonnie on Dec. 23, 2006, at their home near New Bloomfield.  Prosecutors said that earlier that day, Dorsey had called Sarah Bonnie seeking to borrow money to pay two drug dealers who were at his apartment....

Hours before the execution, the Supreme Court turned aside both of Dorsey’s appeals without comment.  His lawyers had urged the high court to step in, saying he had shown good behavior in prison and had been rehabilitated.  They also argued a $12,000 flat fee paid to his two public defenders gave them incentive to hurry through the case.  On their recommendation, Dorsey pleaded guilty despite having no agreement with prosecutors to spare him from the death penalty.

On Monday, Republican Gov. Mike Parson denied a clemency request that included signatures from 72 current and former state corrections officers who urged the governor to commute Dorsey’s sentence to life in prison without parole.  They cited Dorsey’s virtually spotless record of good behavior behind bars.  Parson, a Republican, is a former county sheriff.  He has never granted clemency since taking office in 2018.

Parson, in a statement, said Dorsey “punished his loving family for helping him in a time of need.  His cousins invited him into their home, where he was surrounded by family and friends, then gave him a place to stay.  Dorsey repaid them with cruelty, inhumane violence, and murder.”

Missouri has scheduled its next execution June 11 for inmate David Hosier for his conviction in the 2009 killing of a Jefferson City woman.  Five people have been executed in five different states this year — Alabama, Texas, Georgia, Oklahoma and Missouri.

April 9, 2024 in Death Penalty Reforms, Who Sentences | Permalink | Comments (3)