Saturday, April 17, 2021

"Applying Procedural Justice in Community Supervision"

The title of this post is the title of this interesting report released last month by folks at the Urban Institute.  This page has this abstract for the report:

Procedural justice, a framework for authority figures to treat people with fairness and respect, can improve probation supervision and core supervision outcomes.  This report summarizes the approach and provision outcomes of an effort to develop and pilot a new procedural justice training curriculum outlining new tools and practices for probation officers.  Analyses of interactions between supervising officers and people under supervision, survey responses regarding perceptions of supervision, and analyses of administrative data provided mixed findings, with some preliminary indications that participating in the procedural justice training may make probation officers’ treatment of people under supervision fairer and more respectful and improve supervision outcomes.  However, the conclusions that can be drawn from even those results supportive of intervention impact are subject to significant limitations, given the nonexperimental nature of the design and the small number of observations in some of the data collected.

April 17, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Friday, April 16, 2021

"Virginia should roll back the punitive influence of prosecutors and victims on parole decisions"

The title of this post is the headline of this new Washington Post op-ed by Nora Demleitner.  Here are excerpts:

The Virginia Parole Board scandal gets worse by the day.  The board stands accused of disregarding state law and its own procedures to facilitate the parole release of a few incarcerated men.

A watchdog report alleges that the board failed to consider the required input from victim families and did not inform them and prosecutors of pending releases.  As some Virginia legislators demand further investigation, we should also question the role victims and their families and prosecutors should play in parole hearings in light of their outsize influence on the outcome.  Release decisions should focus on reintegration and second chances. Only rarely do victims and prosecutors have relevant knowledge on these issues. For that reason, states need to roll back their involvement in release decisions....

Currently, victims and prosecutors effectively determine the outcome of parole decisions.  All states, including Virginia, provide victims with opportunities to weigh in on impending parole releases.  When they do, their impact is substantial. That may not be surprising as victims’ rights groups and prosecutors have labeled releases over victim objections another victimization.  That means in many states, victims exercise a virtual veto over releases.

But inmates eligible for parole do not have to contend only with victims. In many states, prosecutors are explicitly invited to participate in hearings, either by providing their views in writing or in person.  At least one study demonstrates the powerful impact of their testimonials. Prosecutorial recommendations against parole tend to lead to denials. Surprisingly, the opposite does not hold.  Apparently, some boards only credit punitive prosecutors....

Victim participation in parole hearings, strongly supported by prosecutor associations, was an outgrowth of the victims’ rights movement. It promised to counteract the perceived leniency of the criminal justice system and give victims a voice.  But participation fails to provide victims with real support and instead privileges punitiveness, never-ending symbolic revenge. Many victims do not participate in parole hearings.  Their addresses may no longer be on file, or they decided to put the past behind them.  Often only those victims who insist on continued incarceration have garnered publicity and prosecutorial support.  That makes release random and largely dependent on the victim.  This practice reinforces a system marred by vast racial, class and power inequities.

Release review, in the form of parole and other mechanisms, should not re-litigate the conviction offense but rather assess whether the incarcerated person will be able to reintegrate successfully and desist from crime in the future.  It is about second chances. Prosecutors and victims, who have an opportunity to make their case at earlier stages — charging, plea bargaining or a trial and sentencing — will know little about the imprisoned person’s suitability for release, which may first come up decades after the crime.

Deaths and serious crime leave a lasting impact that cannot be undone.  Yet, when an offender becomes parole-eligible, retributive concerns should no longer play a role.  Only in cases in which they could speak to reintegration and recidivism, such as when the incarcerated person recently threatened them, for example, is victim or prosecutor testimony relevant. Otherwise, their input does not advance the assessment of an incarcerated person’s future prospects.  There are more meaningful opportunities for their participation and for society and the criminal justice system to show their support for victims.  Release decisions are the wrong moment.

In its next session, Virginia’s legislators should take another look at parole and recalibrate the focus of release hearings.  Reintegration and second chances mean rolling back the involvement of victims and prosecutors.  It is time to end this ill-guided practice of the carceral state that elevates punitive impulses above rehabilitation and second chances.

April 16, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (0)

First public plea deal struck by Capitol rioter, who agrees to cooperate and to reported guideline range of 41 to 51 months in prison

As reported in this Fox News piece, headlined "Capitol rioter takes first public plea deal, agrees to cooperate with authorities: sources," the first big plea in the Capitol riot cases has been announce by the Justice Department. Here are the basics with a few points highlighted:

An alleged member of the Oath Keepers militia group who was "among the first five or six" rioters to enter the U.S. Capitol Building on Jan. 6 is the first person to agree to take a plea deal, Fox News has learned. Jon Schaffer has also agreed to cooperate against others involved in the riot, officials said.

Speaking in court Friday morning, a federal prosecutor told U.S. District Court Judge Amit Mehta that Schaffer was "among the first five or six" rioters to enter the Capitol during the Jan. 6 siege. Schaffer is also the frontman of the band Iced Earth. The central Indiana native who was photographed with the mob that stormed the U.S. Capitol is accused of spraying police officers with a pepper-based bear spray irritant, the FBI previously said.

He was charged with several felony counts, including engaging in an act of physical violence and knowingly entering or remaining in any restricted building or grounds without lawful entry. Schaffer, 53, pleaded guilty to obstruction of an official proceeding and entering and remaining in a restricted building or grounds with a deadly or dangerous weapon.

He faces up to 30 years in prison if convicted, but Mehta said Friday sentencing guidelines call for 41 to 51 months in prison....

A sentencing hearing date has not yet been set.  Schaffer was released and will be allowed some travel for work.  He must stay out of Washington, D.C., other than for court-related matters and may not possess any firearms.

I have not yet been able to find a plea agreement or other public document that details how the guideline range of 41 to 51 months was determined. But I still find those numbers interesting, as well as the fact that this defendant, even after pleading guilty, is to be free pending sentencing.

This official DOJ press release, headed "Lifetime Founding Member of the Oath Keepers Pleads Guilty to Breaching Capitol on Jan. 6 to Obstruct Congressional Proceeding," provide some more context:

Jon Schaffer, 53, of Columbus, Indiana, today admitted that he breached the Capitol on January 6, 2021, wearing a tactical vest and armed with bear repellent, and pleaded guilty to unlawfully entering the U.S. Capitol to obstruct Congress’ certification of the U.S. presidential election results.

"On this 100th day since the horrific January 6 assault on the United States Capitol, Oath Keepers member Jon Schaffer has pleaded guilty to multiple felonies, including for breaching the Capitol while wearing a tactical vest and armed with bear spray, with the intent to interfere with Congress’ certification of the Electoral College results," said Acting Deputy Attorney General John P. Carlin. "The FBI has made an average of more than four arrests a day, seven days a week since January 6th. I commend the hundreds of special agents, prosecutors and support staff that have worked tirelessly for the last hundred days to bring those who committed criminal acts to justice."

"The defendant in this case admits forcing his way into the U.S. Capitol on January 6 for the express purpose of stopping or delaying congressional proceedings essential to our democratic process. These actions are disgraceful and unacceptable" said FBI Deputy Director Paul M. Abbate.  "The FBI and our partners will continue to utilize all available authorities to aggressively investigate, pursue and hold accountable those who committed acts of violence or otherwise violated the rule of law that day."...

Schaffer pleaded guilty to a criminal information charging him with obstruction of an official proceeding and entering and remaining in a restricted building or grounds with a deadly or dangerous weapon. Combined, he faces up to 30 years in prison if convicted. The Honorable Amit P. Mehta accepted Schaffer’s guilty plea.

A few prior related post:

UPDATE:  A helpful colleague got me a copy of the plea agreement, which can now be downloaded here:

Download PleaSchaffer

April 16, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (3)

One year (and 185 pages) later, divided Eleventh Circuit (now en banc) again rules Jeffrey Epstein's victims had no pre-charge rights under federal CVRA

Almost exactly one year ago, as blogged here, a divided Eleventh Circuit panel handed down a very long opinion on an very interesting issue concerning the rights of victims of a very high profile (and now very dead) federal defendant.  The opinions in the original panel decisions In re Courtney Wild, No. 19-13843 (11th Cir. April 14, 2020) (available here), ran a total of 120 pages.  Yesterday, exactly a year and a dat later, the Eleventh Circuit handed down this new en banc ruling in this case ruling 185 pages.  Judge Newsom, who authored the original panel's majority opinion for the court also authored the lead en banc opinion, which starts this way:

This petition for writ of mandamus arises under the Crime Victims’ Rights Act, 18 U.S.C. § 3771.  Petitioner Courtney Wild is one of more than 30 women who, according to allegations that we have no reason to doubt and therefore accept as true in deciding this case, were victimized by notorious sex trafficker and child abuser Jeffrey Epstein. In her mandamus petition, Ms. Wild asserts that when federal prosecutors secretly negotiated and executed a non-prosecution agreement with Epstein in 2007, they violated her rights under the CVRA — in particular, her rights to confer with and to be treated fairly by the government’s lawyers.

We have the profoundest sympathy for Ms. Wild and others like her, who suffered unspeakable horror at Epstein’s hands, only to be left in the dark — and, so it seems, affirmatively misled — by government attorneys.  Even so, we find ourselves constrained to deny Ms. Wild’s petition.  While the CVRA permits a crime victim like Ms. Wild to “mov[e]” for relief within the context of a preexisting proceeding — and, more generally, to pursue administrative remedies — it does not authorize a victim to seek judicial enforcement of her CVRA rights in a freestanding civil action.  Because the government never filed charges against Epstein, there was no preexisting proceeding in which Ms. Wild could have moved for relief under the CVRA, and the Act does not sanction her stand-alone suit.

Judge Tjoflat has a notable concurrence (joined by a number of judges) that starts this way:

I concur wholeheartedly in the majority’s opinion.  I write separately to elaborate on the untoward effects a pre-charge CVRA model would have on the fairness of our courts and on the separation of powers. My concurrence proceeds in three parts.  First, I will outline the litigation models Judge Branch’s dissent and the majority propose: one conferring judicially enforceable rights to crime victims pre-charge, and one conferring such rights to crime victims post-charge.  Then, I will identify two fairness concerns the dissent’s pre-charge model would raise.  Finally, to bring us home, I will expand on the majority’s discussion of the separation of powers doctrine and elaborate on why a pre-charge CVRA model would impermissibly drag federal courts into the business of prosecution.  By laying these problems out in simple terms, my hope is that readers of today’s decision will understand precisely why we are compelled to deny Ms. Wild’s petition.

Judge Branch's dissent, which runs more than 50 pages, includes this road map of its coverage in its introduction:

My dissent proceeds in five parts.  First, I review the facts surrounding the plea deal with Epstein.  Second, I review the procedural history.  Third, I turn to how Congress granted expressly to crime victims in § 3771(a)(5) and (a)(8) a “reasonable” right to confer and a right to be treated fairly and those rights attach pre-charge.  Fourth, I review (A) how the Majority has misapplied and misinterpreted the Supreme Court’s Sandoval decision; (B) how the CVRA text in § 3771(d) expressly provides victims who believe their CVRA rights were violated pre-charge with a statutory remedy — a private right to seek judicial enforcement of their statutory rights in § 3771(a) — when no prosecution is underway; (C) how the statutory interpretation errors in the Majority’s reading of § 3771(d) and (f) leads it to the opposite conclusion; and (D) how even under the Majority’s analysis, the existence of the administrative remedy in § 3771(f) does not make the express judicial remedy in § 3771(d) unavailable to the victims, much less show that Congress did not intend a judicial remedy for crime victims in the “pre-charge” period.  Fifth, I discuss why the CVRA plainly precludes any interference with prosecutorial discretion.

I presume Ms. Wild will now seek Supreme Court review.  I do not believe the Supreme Court has ever taken up a case involving the interpretation of the CVRA, which was enacted by Congress almost two decades ago now.  For a host of reasons, I am disinclined to predict whether this high-profile case might garner the Justices' attention.

Prior related post:

UPDATE: I just saw Paul Cassell, who helps represent Ms. Wild, has this post about this ruling at The Volokh Conspiracy under this full headline: "The Eleventh Circuit Rules Against Jeffrey Epstein's Sex Abuse Victims' Efforts to Rescind His Secret Plea Deal.  The en banc ruling calls the sordid deal a 'national disgrace' but concludes the courts are powerless to enforce crime victims' rights in pre-charging situations -- a disturbing ruling that I hope will be quickly overturned."  Here is a key paragraph from this post about what may come next:

The Circuit's decision is wrong at so many levels that it is hard to see the precedent lasting long.  We plan to seek certiorari in the Supreme Court, which hopefully will rapidly undo this disturbing ruling with broad implications.  And if the Supreme Court declines to review the case, Congress will hopefully move rapidly to approve the proposed Courtney Wild Crime Victims' Rights Reform Act of 2019, which would directly overrule the Circuit's conclusion.

April 16, 2021 in Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (4)

Lots and lots more good reads from The Appeal

I said here earlier this month that "just about every week, The Appeal has too much great new criminal justice content for me to keep up with."  This week serves as another example, so I will again try to make up for limited time with this round-up of links to highlight some of notable recent Apppeal-ing content:

By Maura Ewing, "Philadelphia D.A. Race Could Ramp Up The War On Drugs. Larry Krasner has been dropping drug possession charges at a growing pace. But his challenger in the May 18 primary wants to send these cases to drug court."

By Piper French, "Oregon’s Tough-On-Crime D.A. Association Faces A Reckoning. Three district attorneys are speaking out against Oregon’s “one-strike-you’re-out” law and breaking ranks with a prosecutors‘ lobby that has long pushed for harsh policies."

By Nikki Trautman Baszynski, "Prosecutors Should Stop Seeking the Death Penalty.  A growing number of Americans oppose the death penalty, but prosecutors — even some who call themselves “progressive”—continue to seek it. All prosecutors should stop pursuing and protecting capital convictions."

By Nikki Trautman Baszynski, "States Should Follow New York’s Lead On Restricting Solitary Confinement. Prisons and jails routinely use prolonged solitary confinement—holding someone in a cell for more than 22 hours a day with no meaningful human contact. New York just passed the HALT Act to limit this inhumane practice, and others states should do the same."

By Elizabeth Weill-Greenberg, "‘It Tears Families Apart’: Lawmakers Nationwide Are Moving to End Mandatory Sentencing. Repealing state and federal mandatory minimums will help address the mass incarceration crisis, advocates hope."

By Elizabeth Weill-Greenberg, "Maryland Bans Sentencing Children To Life Without Parole. The bill gives hundreds of people an opportunity to petition for earlier release."

April 16, 2021 in Recommended reading, Who Sentences | Permalink | Comments (0)

Thursday, April 15, 2021

Can capital punishment be another part of a bipartisan criminal justice reform story?

The question in the title of this post is prompted by this lengthy new Marshall Project piece fully titled "Can The Death Penalty Be Fixed? These Republicans Think So: A growing number of conservative lawmakers want to overhaul capital punishment, or end it."  Here are excerpts:

As Oklahoma officials seek to resume putting prisoners to death later this year, [state Rep. Kevin] McDugle has pursued bills in the state legislature to help those on death row prove their innocence ... in a deep-red state at a time when Republicans across the country are increasingly split on the future of capital punishment.  Support for the death penalty used to be popular in both parties, but over the last three decades, Democrats have turned away from the punishment, leaving Republican legislators, governors, prosecutors and judges to fight for its continued use.  At the same time, a small conservative movement — including groups like Conservatives Concerned About the Death Penalty — has been openly questioning capital punishment. It’s now clear their efforts are paying off.

Earlier this year, Virginia became the first Southern state to repeal the death penalty after three Republicans voted with the state legislature’s Democratic majority.  A Marshall Project review found that in roughly half the states with an active death penalty system, Republican lawmakers have recently sponsored or written bills to ban or constrain the punishment, or to help potentially innocent prisoners avoid it.

Although many of these bills are unlikely to pass, their sheer volume suggests a significant shift in conservative views.  Some of these Republican legislators see their bills as incremental steps toward ending the punishment. But others, like McDugle, don’t want to end the death penalty — they just want to fix it. “I want to make darn sure that if we as Oklahoma are putting someone to death, they deserve to be there,” McDugle said. “I know there is human error all the way through.”

Conservatives have been slowly turning away from the death penalty for years, as high-profile innocence cases have helped frame capital punishment as a problem of out-of-control big government.  In 2000, after a series of exonerations of people who had been sentenced to death, the Republican governor of Illinois, George Ryan, declared a moratorium on executions.  At the time, Texas Gov. George W. Bush was running for president, and the national press questioned whether an innocent person had faced execution under his watch; soon after, his fellow Republicans in the state legislature voted to make DNA testing more available for prisoners.  From 2014 to 2019, Republican support for the death penalty, as opposed to life sentences, dropped from 68% to 58%, according to Gallup Polls. Republican legislators in Nebraska voted to repeal the punishment in 2015, although the state’s residents then voted to bring the punishment back.

Some lawmakers have been motivated by anti-abortion arguments about the sanctity of human life and stories of Christian redemption on death row.  Others talk about the cost to taxpayers. South Dakota state Sen. Arthur Rusch previously served as a judge in a capital case.  “My case cost at least $1 million if not more,” he said, noting that the court paid for counseling for some jurors who suffered from post-traumatic stress after the lengthy trial. He was elected to the senate in 2015, and has filed numerous bills to abolish or restrict the punishment; none have succeeded, he said, but each time he brings along a few more peers.

“Changing your mind on an emotional subject like this can be difficult,” said Hannah Cox, who writes columns for Newsmax, a conservative web outlet, and serves as national manager of Conservatives Concerned About the Death Penalty. She’s found that efforts to fix the system can serve as “baby steps,” as she tries to show her fellow conservatives that the system can’t be saved. “If you fix one of 13 problems with the death penalty, there are still another 12.”...

Many conservatives focus on the moral calculation of who deserves the ultimate punishment.  Ohio recently passed a bill, sponsored by a Republican legislator, to ban the execution of anyone with a serious mental illness. Republicans are pushing similar bills in Florida, Kentucky and Missouri.  In Texas, state Rep. Jeff Leach has filed a bill that would ban the death penalty for people who were technically “accomplices” to murders but played a minor role, including getaway drivers.  Much like the Oklahomans, he was motivated by a single case — that of Jeff Wood, who was sentenced to die after his friend killed a store clerk while Wood waited outside in the car, after what they thought would be an easy robbery.

April 15, 2021 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

"Long Road to Nowhere: How Southern States Struggle with Long-Term Incarceration"

The title of this post is the title of this recent report from Southern Poverty Law Center.  I just noticed the report because it was recently made available here via SSRN, where one finds this abstract:

The Deep South is the epicenter of mass incarceration.  The United States incarcerates more people per capita than any other country, with prison populations growing by 86% between 1990 and 2019.  For Southern states, prison populations exploded by 127% during that same period.  During this time in history, America implemented “tough on crime” policies that responded to public health issues like the drug epidemic with incarceration instead of rehabilitation.  Laws for even nonviolent crimes became more punitive with longer sentences, and people of color were disproportionately pushed into prisons with little hope for parole.  Today, incarceration rates for Latinx and Black people are more than two and five times the incarceration rate of whites, respectively.  The commitment to the “tough on crime” narrative led to significantly overcrowded prisons, which not only put a strain on state budgets, but also created human rights challenges regarding how to maintain a safe and healthy prison environment.

Three Southern states in particular — Alabama, Florida, and Louisiana — exemplify how prison populations have grown to be problematic in three unique ways.  Alabama is home to the most overcrowded prisons in the country, currently at 151% of capacity.  Even after sentencing reforms were passed in 2017, recent legislation concerning the Alabama Board of Pardons and Paroles has severely diminished the parole chances of currently incarcerated people.  Florida, with over 95,000 imprisoned people, has the third-largest prison population of any state in the country, and still adheres to a “Truth in Sentencing” rule requiring incarcerated people to serve at least 85% of their sentences, regardless of any demonstration of rehabilitation.  As a result, Florida has grown to have the oldest prison population in the South, a group whose care is increasingly expensive.  Louisiana has been known as the “incarceration capital of the world” for consistently having incredibly high incarceration rates.  A large factor is the number of people serving life sentences without the possibility of parole, including juveniles.

The lack of early prison release is just one of many contributors to mass incarceration in the South. The solutions also vary — from expanding parole eligibility and making it retroactive, to increasing incentives for rehabilitation credits, to re-calibrating triggers for life without parole sentences.  This report will investigate the impact that over-incarceration has had in three Southern states, and provide recommendations on how each state can address the issue through policy change.

April 15, 2021 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Heard at BOP oversight hearing: "Simply put, our prison system at the federal level is failing."

The quote in this title of this post is sentence from the opening statement by Senator Dick Durbin during this morning's hearing titled "Oversight of the Federal Bureau of Prisons" before the US Senate Judiciary Committee. The only witness for this hearing is Michael Carvajal, the Director of the Federal Bureau of Prisons, and I had hoped by now that there might be publicly available some written testimony from him (as well as official statements from Senator Durbin or others).  Lacking such available written statements as of 10:30am today, I guess I need to do a little "live blogging."  Specifically, how about this from Senator Chuck Grassley's opening statement:

"I consider the passage of the First Step Act as one of the good things I have done since being a Senator.  It's because of the hard work and overwhelmingly bipartisan nature of the First Step Act that I am disheartened with the lackluster implementation.

"It seems as though the Justice Department -- and within that Department, the Bureau of Prisons -- are implementing the First Step Act as if they want it to fail.  I hope this isn't true, but action speak louder than words, and the inaction of the Justice Department and BOP on this paints a very difficult picture."

UPDATE: I new see, as of 11:30pm EDT, that the written testimony of Director Carvajal is now available here.  It runs eight pages, and here are a few notable data points from the statement:

Since March of last year, we have transferred approximately 24,000 inmates to home confinement, with almost 7,000 transferred directly under the CARES Act, a 250% increase in home confinement placements since the beginning of the pandemic....

The Bureau manages the health and treatment of approximately 140,000 inmates in Bureau facilities and RRCs. As of April 6, 2021, the Bureau had 406 positive COVID-19 inmate cases and 47,227 inmates recovered in our federal prisons, while there were 51 positive cases in our RRCs and 55 positive cases in home confinement. With respect to staff, there were 1,243 positive cases and 5,532 recovered cases. Sadly, there have been 4 staff deaths and 230 inmate deaths from COVID-19....

Despite the pandemic, the Bureau is on track to meet the requirements of the First Step Act (FSA).  While the global pandemic certainly impacted the delivery of FSA programs in institutions, critical services such as mental health care, crisis intervention, and religious services have continued unabated throughout the pandemic.  As we have learned more about virus mitigation strategies and begun the process of vaccinating staff and inmates, we have been able to resume much of our programming.  As of April 1, 2021, over 49,000 inmates were enrolled in Evidence-Based Recidivism Reduction (EBRR) Programs and Productive Activities (PA).  With respect to inmate eligibility for FSA Time Credit, of approximately 124,000 inmates reviewed for eligibility, approximately 50% are eligible.

ANOTHER UPDATE: I just saw a copy of the detailed written submitted testimony of Kevin Ring, FAMM President.  Here are excerpts from page one of the lengthy submission:

FAMM was established 30 years ago. During the past few decades, we have learned a great deal about the hardship people in federal prison endure.  Prison is never easy, even under the best of circumstances.  However, the past year has been by far the most difficult year for people in prison and their loved ones that we have ever witnessed.  We appreciate that everyone in the country was affected by the spread of COVID-19 and resulting lockdowns and disruptions, and we acknowledge the unprecedented challenges the leadership of the Bureau of Prisons (BOP) had to face.  Our firm conclusion is that the BOP failed in several ways and that these failures were compounded by an inexplicable and infurating lack of transparency.

I fear we cannot adequately convey to you the desperation, fear, separation, and hardship that we have felt from the families we work with every day.  We asked some of them to share their firsthand experiences with us, so that we could paint a clearer picture of what transpired and how they felt.  Their observations are included in our comments below and in the addendum to this testimony.  The BOP ignored their voices throughout the past year and denied them basic information about the health and safety of their loved ones.

This statement includes a small portion of the concerns articulated by families.  In particular, we have highlighted their concerns regarding healthcare and the management of COVID-19 spread; the appalling conditions resulting from altered operations of the past year; the BOP’s lack of transparency with families and the public; underutilization of release mechanisms intended to protect prisoners; and lacking implementation of the First Step Act.  We share these families’ voices with you in the hope that will finally be heard and that they will inform your oversight.

April 15, 2021 in FIRST STEP Act and its implementation, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Wednesday, April 14, 2021

Noting the importance of charging policies and practices (and consistency?) as federal rioting charges get resolved from coast-to-coast

A few weeks ago, as blogged here, Politico spotlighted some case processing realities surrounding the on-going federal prosecutions of persons involved in the insurrection on January 6, 2021.  That lengthy piece highlighted reasons why it could turn out, in the words of the headline, that "Many Capitol rioters [are] unlikely to serve jail time."  Politico now has this additional interesting piece on the same beat headlined "Leniency for defendants in Portland clashes could affect Capitol riot cases."  I also recommend this piece in full, in part because the piece showcases how differing charging policies and practices — both at the national level and in individual districts — can lead to differing case outcomes:

Federal prosecutors’ show of leniency for some defendants charged in the long-running unrest in the streets of Portland could have an impact on similar criminal cases stemming from the Capitol riot, lawyers say.

In recent weeks, prosecutors have approved deals in at least half a dozen federal felony cases arising from clashes between protesters and law enforcement in Oregon last summer.  The arrangements — known as deferred resolution agreements — will leave the defendants with a clean criminal record if they stay out of trouble for a period of time and complete a modest amount of community service, according to defense attorneys and court records.

Some lawyers attribute the government’s newfound willingness to resolve the Portland protest cases without criminal convictions to the arrival of President Joe Biden’s administration in January and to policy and personnel changes at the Justice Department.  Those moves seemed to step away from the highly public, throw-the-book-at-them stance that President Donald Trump and then-Attorney General William Barr adopted toward lawbreakers involved in racial justice protests that swept across the country last year following the death of George Floyd during an encounter with Minneapolis police.

“Obviously there was a change in direction from Washington, and once they changed the U.S. attorney, that seemed to change the tone,” said John Kolego, a defense attorney based in Eugene, Ore., who handled one of the Portland cases. “They had their marching orders from Barr before, but the tone is definitely changed,” Kolego said.

Five of the Portland cases in which deals were recently struck involved a felony charge of interfering with police during civil disorder.  Some defendants are accused of punching or jumping on police officers during the street battles.  One individual was charged after being accused of shining a high-powered green laser into the eyes of officers seeking to disperse a riot outside a police union building.

The civil disorder cases are notable because the charge of police interference is also being wielded by prosecutors in dozens of the criminal cases brought over the storming of the Capitol on Jan. 6 by pro-Trump protesters.  In the Washington cases, prosecutors have filed the felony anti-riot charge in tandem with others, like obstructing an official proceeding or assaulting police officers.

Some of the assaults described in the Portland cases bear similarities to the Capitol violence.  Prosecutors said one of the civil disorder defendants, Alexandra Eutin, used a wooden shield and hoses to strike a Portland police officer in the head while he was trying to make an arrest.  Several Capitol riot suspects are accused of using riot shields to shove police or obstruct their efforts to secure the building from the mob....

While Justice Department headquarters in Washington loudly touted the arrests and indictments related to last summer’s unrest, a spokesperson for the U.S. Attorney’s Office in Portland said the resolutions it is reaching in those cases were not being approved by officials in Washington.  “There is no across-the-board standard being used to rule our protest cases in or out of consideration for a deferred prosecution agreement, and our office does not consult with Main Justice on when to use them,” said Kevin Sonoff, the spokesperson.

However, Sonoff said the Portland prosecutors were acting under the authority that then-Attorney General Eric Holder granted to assistant U.S. attorneys a decade ago to craft resolutions they considered appropriate in criminal cases.  Trump’s first attorney general, Jeff Sessions, revoked that policy in 2017, but days after Biden’s inauguration in January, the Justice Department returned to the Holder standards that Portland prosecutors are now citing.  “Under the 2010 Holder memo on charging and sentencing, AUSAs have broad discretion on how cases are resolved,” the spokesperson said, referring to assistant U.S. attorneys.

Laurie Levenson, a former federal prosecutor who is now a law professor at Loyola Marymount University in Los Angeles, said: “Undoubtedly, defense lawyers will point to everything they can to get the most favorable resolution for their clients. Now, one thing they can point to will be the deferred prosecutions in Portland.”  Still, prosecutors in D.C. can argue that what happened there is more serious even if the physical actions of the defendants were comparable. “Attacking the Capitol is sui generis — it’s in a category of its own,” Levenson said. “One is the seat of government and the other is not.”

One defense attorney in Washington representing Capitol riot defendants said he planned to raise the Portland cases as negotiations begin between the government and defendants over those arising from the Capitol “I think they’re very relevant,” said the defense lawyer, who spoke on the condition of anonymity.  “The individual conduct is actually not all that different: You’re at a protest that turns into a riot. … The core conduct is the same, so if people out there are getting deferred prosecution for that conduct, then my guy should be.”

Nancy Gertner, a former federal judge, said she expected Portland comparisons as defense lawyers and the government jockey over the terms of potential plea deals. “Sure, it would be relevant … but that feels very different than entering into the Capitol,” said Gertner, now a lecturer at Harvard Law School.  Gertner said many of the Capitol cases were headed for what she called a “no-time resolution,” meaning no prison time. But she emphasized that offering a deferred prosecution with no criminal record — like the Portland deals — was really up to prosecutors, who may be reluctant to agree to them amid lingering outrage over the Jan. 6 takeover. “I can see prosecutors not wanting to give them — and a judge can’t,” she said....

The ad hoc resolutions in the Portland cases — some of which involve postponing action on the charges for as long as a year — are similar to more formal pretrial diversion programs in place at federal courts in Los Angeles, Seattle and Boston.  “Federal courts have programs to allow people to show they have been rehabilitated,” Lisa Hay, the chief federal defender in Oregon, told POLITICO.  “I think the government should always look at the facts of the case and the individual charges.  We are encouraged that the government is doing that in the cases here.”

The federal District Court in D.C. where the Capitol riot defendants are charged does not have such a program, chiefly because less-serious cases in the nation’s capital are typically routed to D.C. Superior Court, which does have a diversion program of its own....  Deferred prosecution or resolution agreements are often used in state and local courts, but are more rare in federal courts.  The Justice Department has generated controversy in recent years by using such deals to resolve investigations into corporations accused of being involved in criminal activity.  That led to calls by some criminal justice reformers to offer such arrangements to individuals more frequently in federal criminal cases, although they have not become widespread. 

Prior related post:

April 14, 2021 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Infamous Ponzi schemer Bernie Madoff dies in prison after spending his final dozen years behind bars

As reported in this Fox Business piece, headlined "Bernie Madoff, mastermind of vast Ponzi scheme, dies in federal prison at age 82," an infamous white-collar offender passed away behind bars today.  Here are the basics:

Bernie Madoff, the notorious architect of the biggest investment fraud in U.S. history, has died at age 82.

Madoff was serving a 150-year sentence at the federal medical care center in Butner, North Carolina, where his attorney said he was being treated for terminal kidney failure. Last year, Madoff's attorney filed court papers seeking the 82-year-old's release during the coronavirus pandemic, saying he suffered from end-stage renal disease. The request was denied....

A decades-long force on Wall Street, Madoff shocked the world when he pleaded guilty in 2009 to running a vast Ponzi scheme that prosecutors said swindled thousands out of their life savings. The scheme began in the early 1970s, and by the time Madoff was arrested in December 2008, had defrauded as many as 37,000 people in 136 countries out of up to $65 billion.

His victims included the famous – film director Steven Spielberg, actor Kevin Bacon and Nobel Peace Prize winner Elie Weisel – as well as ordinary investors.

Madoff said he started the fraud, in which he appeared to deliver steady returns to clients, but was actually using money from new investors to pay off existing shareholders, in the 1990s because he felt "compelled" to give investors solid returns despite the recession and weak stock market. (Prosecutors contend he started defrauding investors much earlier)....

Prior to his downfall, Madoff was viewed as a self-made and respected figure among financial professionals as the head of the seemingly successful Bernard L. Madoff Investment Securities firm. He also served as the chairman of the Nasdaq Stock Market in 1990, 1991 and 1993.

In addition to being sentenced to the maximum 150 years in prison, Madoff and his family took a major financial hit: A judge issued a $171 billion forfeiture order in June 2009 requiring the disgraced financier to give up his interests in all property, including real estate, investments, car and boats. Under the arrangement, the government also obtained his wife's interest in all property, including $80 million that she claimed belonged to her, leaving Ruth Maddoff with $2.5 million in assets.

The decline and fall of Madoff also took a toll on his family. The oldest of his two sons, Mark Madoff, died by suicide on the second anniversary of his father's arrest in 2010. His other son, Andrew, died from cancer at age 48 in 2014. Mark Madoff's suicide prompted his mother, Ruth Madoff, to cut off all communications with her husband....

Meanwhile, Madoff's younger brother, who helped run the business, was sentenced to 10 years in prison after pleading guilty to one count of falsifying false records and one count of conspiracy to commit securities fraud. He was released from federal custody last year. "You know there hasn’t been a day in prison that I haven’t felt the guilt for the pain I caused on the victims and for my family," he told The Washington Post in 2020 when his attorney asked for his compassionate release. He said his dying wish was to reconcile with his grandchildren and explain his actions.

I will be interested to see if anyone has anything especially new or interesting to say, circa 2021, about Madoff's crimes and federal punishment.  In addition to linking to some prior posts below, I will be content here to just note that Madoff's lawyer back in June 2009 requested a "prison term of 12 years — just short of an effective life sentence."  Madoff died almost exactly 12 years since the time of that request, though he had served less than 10% of the 150-year prison sentence that Judge Chin gave him back in June 2009.

Some of many prior posts about his initial sentencing:

Some prior posts about his request for compassionate release:

April 14, 2021 in Celebrity sentencings, Prisons and prisoners, White-collar sentencing | Permalink | Comments (4)

"What Is An Excessive Fine? Seven Questions to Ask After Timbs"

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

This Article explains how Timbs v. Indiana does more than hold that the Eighth Amendment’s Excessive Fines Clause applies to state and local authorities.  Timbs also gives definition to those “excessive fines” the Constitution guarantees “shall not be . . . imposed.”

This definition emerges when Timbs is read alongside three other decisions: (1) Austin v. United States — the Supreme Court’s decision holding that forfeitures are “fines” within the meaning of the Excessive Fines Clause; (2) United States v. Bajakajian — the only other case in which the Supreme Court has applied the Excessive Fines Clause; and (3) the Indiana Supreme Court’s decision on remand in Timbs, which surveys all available case law and adopts a helpful framework for determining excessiveness.  Timbs, Austin, and Bajakajian, when combined with examples from federal circuit courts and state high courts, represent a cogent standard for excessiveness.  This emerging standard can be summarized using the familiar “five W’s (and one H).”

There are seven salient questions: Who committed what offense; when and where; what property is the government taking; how was that particular property involved in the offense; and why does the government want it?  By answering these questions based on all the evidence, courts can determine whether a fine or forfeiture is excessive.

Like the five Ws, the seven questions of excessiveness are open-ended by design.  The meaning of “excessive fine” has been open ended and fact-specific for a long time.  The Eighth Amendment’s standard can be traced through centuries of Anglo-American law.  Yet, the standard has never been reduced to strict factors, rigid formulae, or balancing tests. Instead, the “fundamental” and “deeply rooted” right against excessive economic sanctions requires courts to focus on all the circumstances of a particular offense and particular offender.  Each case is viewed holistically, considering what punishments are available, those already imposed, the effect that additional economic penalties will have on the offender and her community, the government’s motivations, examples in case law, and the historical purposes of the protection against excessive fines.  The rich history of that protection, as Timbs makes clear, is key to understanding the meaning of both the Excessive Fines Clause and the Fourteenth Amendment that makes it applicable to state and local government (like virtually all Bill of Rights protections).

Each of the seven questions is explained with reference to the excessiveness standard announced on remand in Timbs, relevant Supreme Court decisions, and examples from lower courts shedding additional light.  The result is an Eighth Amendment excessiveness standard with contours and shape but little in the way of firm boundaries.  Others have proposed a balancing test; this Article proposes an open-ended inquiry that should be allowed to develop on a case-by-case basis.  Put differently, I regard the indeterminate nature of the excessiveness inquiry as a feature, not a bug, of constitutional design.

April 14, 2021 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Tuesday, April 13, 2021

Brennan Center launches notable new essay series titled "Punitive Excess"

I was very pleased to receive a few emails this morning alerting me to a new essay series unveiled today by the Brennan Center for Justice, titled "Punitive Excess." Here is how L.B. Eisen, the Director of the Brennan Center Justice Program, describes this notable new series of essays:

America’s criminal legal system is unduly harsh.  Experts explain how we got here and solutions that will benefit everyone.

America can’t shrink its reliance on mass incarceration until we confront our approach to punishment.  These essays by renowned experts in a variety of fields focus on our deep-rooted impulse to punish people in ways that are far beyond what could be considered proportionate.  Together, they illustrate how necessary it is to rein in the punitive excess of the criminal legal system, which is inexorably entwined with the legacy of slavery. T hey also highlight how we have marginalized poor communities and people of color through criminalization and punishment.

Addressing a range of issues — from policing to prosecution to incarceration to life after prison — the writers highlight how our nation has prioritized excess punishment over more supportive and less traumatic ways of dealing with social harm. The essays explore whether, when, and how we could have made different decisions that would have changed the way these systems of punishment and social control evolved.

Looking ahead, they also ask how we can learn from this failed experiment with mass incarceration and prioritize human dignity over human misery.  We hope this series will spur increased discussion on these vital topics.

And here are the first set of essays in the series:

April 13, 2021 in Race, Class, and Gender, Recommended reading, Scope of Imprisonment | Permalink | Comments (0)

Any interesting new insights about the interesting new folks tapped by Prez Biden for DEA and AAG positions at the Department of Justice?

As detailed in this press release, Prez Biden yesterday announced "His Intent to Nominate 11 Key Administration Leaders on National Security and Law Enforcement."  Two of the nominees could prove be particularly impactful in sentencing and other federal criminal justice reform arenas: 

Anne Milgram, Nominee for Administrator, Drug Enforcement Administration, Department of Justice

Anne Milgram has had a distinguished career as a state, local, and federal prosecutor.  As New Jersey’s Attorney General from 2007-2010, Milgram was New Jersey’s chief law enforcement officer and led the 9,000-person Department of Law & Public Safety, overseeing the New Jersey State Police and the State Division of Criminal Justice....

Kenneth Polite, Nominee for Assistant Attorney General for Criminal Division, Department of Justice

Kenneth A. Polite is currently a partner at Morgan, Lewis & Bockius LLP.  During the Obama/Biden administration, he served as the United States Attorney for the Eastern District of Louisiana, where he championed prevention, reentry, and enforcement in improving public safety, and advised Department of Justice leadership as a member of the Attorney General’s Advisory Committee.... 

I do not know all that much about either of these folks, but I do know that lots of criminal justice advocates are going to be urging them to be reform minded.  Here is some early press coverage of these nominations providing some background:

UPDATE:  A helpful reader commented that Anne Milgram gave this notable TED talk in October 2013 titled "Why smart statistics are the key to fighting crime."  Here is how the 12-minute talk, which has been viewed more than 1 million times, is described:

When she became the attorney general of New Jersey in 2007, Anne Milgram quickly discovered a few startling facts: not only did her team not really know who they were putting in jail, but they had no way of understanding if their decisions were actually making the public safer.  And so began her ongoing, inspirational quest to bring data analytics and statistical analysis to the US criminal justice system.

Because I believe the DEA could and would likely benefit from using more "smart statistics," I hope these ideas become part of DEA operations in the years ahead.

April 13, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (2)

Hoping many more folks will focus on "how" as marijuana reform continues to gain momentum

German Lopez has this new Vox piece, headlined "Marijuana legalization has won," that I find both effective and frustrating. The piece is effective because it reviews well the modern political realities of marijuana reform, while not even mentioning the modern policy and practical realities of reform. Here is how the piece starts:

The US is nearing a tipping point of sorts on marijuana legalization: Almost half the country — about 43 percent of the population — now lives in a state where marijuana is legal to consume just for fun.

The past two months alone have seen a burst of activity as four states across the US legalized marijuana for recreational use: New Jersey, New York, Virginia, and, on Monday, New Mexico.

It’s a massive shift that took place over just a few years. A decade ago, no states allowed marijuana for recreational use; the first states to legalize cannabis in 2012, Colorado and Washington, did so through voter-driven initiatives.  Now, 17 states and Washington, DC, have legalized marijuana (although DC doesn’t yet allow sales), with five enacting their laws through legislatures, showing even typically cautious politicians are embracing the issue.

At this point, the question of nationwide marijuana legalization is more a matter of when, not if.

I started teaching a new law school class and started a new law blog about marijuana reform topics way back in 2013 because I had reason to believe, even back, then that political and social forces were already lining up to make marijuana reform "more a matter of when, not if."  But, as I have paid ever more attention to these issues for now nearly a decade (and even helped start a new law school center to study these issues), I have grown even more aware of the many challenges surrounding the "how" of marijuana legalization.  And, as the title of this post suggests, I keep hoping that even more and more serious people will start spending more and more time examining and reviewing the pros and cons of different approaches to reform.  Though there has been a growing number of public health and criminal justice researchers and academics paying more attention to these topics, I still see so much important "how" work that needs to be done and still relatively few folks on the job.

That said, as I try to highlight over at Marijuana Law, Policy and Reform, I suppose I should celebrate that this even more policy discussion and academic writing about the "how" 

April 13, 2021 in Marijuana Legalization in the States, Pot Prohibition Issues, Preparing for pot professing | Permalink | Comments (0)

Monday, April 12, 2021

"The Practice and Pedagogy of Carceral Abolition in a Criminal Defense Clinic"

The title of this post is the title of this new article authored by Nicole Smith Futrell now available via SSRN. Here is its abstract:

For many, carceral abolition might once have been considered irreconcilable with the goals of legal education.  However, the energy produced by recent social movements focused on issues of race and the criminal legal system has helped to advance widespread interest in the long-standing work of abolitionists.  While abolitionist thought has flourished in organizing and non-legal academic spaces, law students and legal scholars are increasingly considering how a carceral abolitionist perspective can inform legal education and practice.  Abolitionists understand that the criminal legal process ineffectively uses state-sanctioned violence, surveillance, punishment, and exclusion to address, and counterproductively create, the underlying problems that produce violence and harmful behavior in our communities.  Abolition focuses on dismantling our current carceral systems and finding completely new, restorative and collaborative ways of addressing harmful social behaviors.

This Article examines whether abolitionist ethics fit into the practice and pedagogy of law school criminal defense clinics. It argues that although carceral abolition and the institutional role of public defense are an imperfect fit, criminal defense clinics should teach students how to effectively advocate for their clients through a lens of carceral abolition.  Clinicians have an opportunity to expose students to practice that does more than just reinforce or merely critique the criminal legal system as it exists.  Rather clinic students can explore ways to lawyer as “fellow travelers,” operating to actively shield individual clients from the weight of the state, while also supporting the efforts of organizers who are seeking to transform how we deal with social problems.  The Article provides a brief introduction to abolitionist thought, explores the challenges and benefits of incorporating an abolitionist framework into defense clinics, and provides an approach for clinicians seeking to inform their teaching and practice with an understanding of carceral abolition.

April 12, 2021 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

DEPC-hosted symposium, "Prioritizing Science Over Fear: An Interdisciplinary Response to Fentanyl Analogues," now available online

Fentanyl-Analogues-Conference_for-social_v3As detailed in this press release, a coalition of over drug policy, civil rights, criminal justice and public health organizations are urging Congress and the Biden Administration to allow temporary class-wide emergency scheduling of fentanyl-related substances to expire in May 2021.  This letter to members of Congress on this topic highlights why this issue is, in many ways, a sentencing story because "class-wide scheduling of fentanyl analogues ... expands the application of existing severe mandatory minimum sentencing laws enacted by Congress in the 1980s to a newly scheduled class of fentanyl-related compounds":

For example, just a trace amount of a fentanyl analogue in a mixture with a combined weight of 10 grams — 10 paper clips — can translate into a five-year mandatory minimum, with no evidence needed that the seller even knew it contained fentanyl.  In addition, current laws impose a statutory maximum sentence of 20 years for just a trace amount of a fentanyl analogue in a mixture with a combined weight of less than 10 grams."

The advocacy letter also notes the practical realities of existing laws and concludes with a pitch for the Biden Administration to make good of avowed opposition to mandatory minimum sentencing schemes:

Between 2015 and 2019, prosecutions for federal fentanyl offenses increased by nearly 4,000%, and fentanyl-analogue prosecutions increased a stunning 5,000%.  There are significant racial disparities in these prosecutions, with people of color comprising almost 75% of those sentenced in fentanyl cases in 2019.  This holds true for fentanyl analogues, for which 68% of those sentenced were people of color.  In addition, more than half of all federal fentanyl-analogue prosecutions in 2019 involved a street-level seller or other minor role; only 10.3% of these cases involved the most serious functions."...

The expiration of class-wide scheduling is an opportunity for the Biden administration and Congress to make good on a commitment to end mandatory minimums and embrace a public health approach.  The class-wide scheduling discussion allows Congress and this administration the opportunity to choose a new path on drug policy.  The Biden administration has expressed support for ending mandatory minimums. Allowing this policy to expire aligns with Biden’s stated support of ending mandatory minimums and treating drugs as a public health issue

Last month, the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law had the honor last month of hosting a multi-panel virtual symposium, titled "Prioritizing Science Over Fear: An Interdisciplinary Response to Fentanyl Analogues," which explored these issues at great length with a great set of speakers.  Here was how the event was set up:

In recent years, the illicit drug market around the world has seen a major rise in the production and use of synthetic drugs, including the rapid development of analogues of conventional drugs such as marijuana, amphetamine, and opiates.  Since 2015, fentanyl, a synthetic opioid, and its analogues have increasingly emerged in the illegal drug market in the U.S., most often added to heroin or sold in counterfeit opioid prescription pills.  In 2018, 30,000 overdose deaths in the U.S. involved synthetic opioids.

The purpose of this symposium is to educate advocates, congressional staff, administration officials, and scholars about the possibility that class-wide scheduling of fentanyl analogues will yield unintended consequences, and to highlight evidence-based alternatives that can help reduce overdose deaths. Participants will learn about the relationship between class-wide scheduling and public health policy approaches to dealing with fentanyl analogues and overdose.  Participants will be presented with an intersectional discussion of the issue that examines class-wide scheduling and its impact on the criminal legal system, racial inequities, scientific research, medicine, and evidence-based drug policy.

I am pleased to now be able to report that a transcript and captioned recordings of each panel are available now. 

UPDATE: The GAO has now released this new report on this topic under the title "Synthetic Opioids: Considerations for the Class-Wide Scheduling of Fentanyl-Related Substances."

In addition, as detailed at this webpage, The US House of Representatives' Subcommittee on Health of the Committee on Energy and Commerce will hold a legislative hearing on Wednesday, April 14, 2021, at 10:30 a.m. via Cisco WebEx entitled, "An Epidemic within a Pandemic: Understanding Substance Use and Misuse in America."  The written testimony of the scheduled witnesses suggests that class-wide scheduling of fentanyl analogues will be a major topic of the hearing.

ANOTHER UPDATE: The Intercept has this clear and effective article on these topics under the headline "Biden Looks To Extend Trump’s Bolstered Mandatory Minimum Drug Sentencing."  Here are its opening paragraphs:

THE BIDEN ADMINISTRATION is expected to announce support this week for the temporary extension of a Trump-era policy expanding mandatory minimum sentencing to cover a range of fentanyl-related substances.  More than 100 civil rights, public health, and criminal justice advocacy groups sent a letter last week urging Congress and President Joe Biden to oppose any extension of the Trump policy.

The administration can’t extend the policy without congressional action, which it is expected to support during a Wednesday hearing on substance use before the House Energy and Commerce Committee, according to two groups on the letter and several Democratic aides.  The aides note that the administration will likely request additional time to explore the policy’s ramifications and has not yet decided whether it will adopt a full extension.

April 12, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (0)

The Marshall Project unveils "The Language Project" to explore words used to describe people in the justice system

As a lawyer who thinks precise language and legal terminology is always important, and as a blogger who often hopes to avoid clumsy locutions and sometimes parrots and reprints journalistic word conventions, I am always interested in debates over the array of words we use in describing the criminal justice system and the people connected to it.  These debates are heating up as interest in criminal justice reform heats up.  Indeed, as some readers surely know, even the term "criminal justice system" is a matter of debate; many now speak of the "criminal legal system" in an effort to undercut any suggestion that the current system helps to achieve "justice."

Against this backdrop, I am quite intrigued to see that The Marshall Project has unveiled today "The Language Project," which it sets up this way:

Reporters and editors have long believed that terms such as “inmate,” “felon” and “offender” are clear, succinct and neutral.  But a vocal segment of people affected by the criminal justice system argue that these words — and any other words that define human beings by their crimes and punishments — are dehumanizing.

The Marshall Project occupies a unique space in criminal justice reporting.  We are not an advocacy organization, but we are committed to sustaining a sense of national urgency about the U.S. criminal justice system.  As a result, fellow journalists often ask us about our style and standards around the language of criminal justice, and activists we meet frequently confront us about our usage of words such as “inmate.”

The Marshall Project began addressing this issue in 2015, our second year of existence, but we did not make a decision to change our style guide.  Since then, through our deepening engagement with formerly and currently incarcerated people, we have realized the urgency of examining and articulating the language we use.

The Language Project serves three purposes.  First, through a series of powerful pieces by and about people with intimate experience with incarceration, we show the human impact of the words we choose.  Second, our guide, “What Words We Use — and Avoid — When Covering People and Incarceration,” makes public our decision to avoid labels such as “inmate,” in favor of language that follows the logic of “person-first” language.  Third, we provide alternatives to the labels.

At its heart, journalism is a discipline of clarity. The Language Project is our attempt to set the record straight.

Here are links to the first set of pieces in this notable new "Project":

April 12, 2021 in On blogging, Prisons and prisoners | Permalink | Comments (0)

Sunday, April 11, 2021

Headlines providing more reminders of how COVID meets mass incarceration

A number of notable reads about the state of COVID in incarceration nation in recent days.  Here are some headlines and links:

From the AP, "As states expand vaccines, prisoners still lack access"

From Business Insider, "Thousands of inmates given the chance to serve their sentence at home because of COVID-19 might go back to prison cells"

From Reuters, "Thousands of low-level U.S. inmates released in pandemic could be headed back to prison"

Fom the New York Times :

From Undark magazine, "Prisons Are Covid Hotspots. But Vaccine Access Remains Patchy."

April 11, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

New statement from prosecutors and law enforcement urging review of extreme prison sentences

The Fair and Just Prosecution folks this past week released this joint statement from "64 elected prosecutors and law enforcement leaders ... urging policymakers to create mechanisms to reduce the number of people serving lengthy sentences who pose little or no risk to public safety, including by creating second chances for many in our nation currently behind bars."  (This quoted language comes from this extended press release about the joint statement.)  Here is the start and key section of the statement:

As current and former elected prosecutors and law enforcement leaders from across the country, we know that we will not end mass incarceration until we address the substantial number of individuals serving lengthy sentences who pose little or no risk to public safety.  We call on all other leaders, lawmakers, and policymakers to take action and address our nation’s bloated prison populations.  And we urge our state legislatures and the federal government to adopt measures permitting prosecutors and judges to review and reduce extreme prison sentences imposed decades ago and in cases where returning the individual to the community is consistent with public safety and the interests of justice. Finally, we call on our colleagues to join us in adopting more humane and evidence-based sentencing and release policies and practices.  Sentencing review and compassionate release mechanisms allow us to put into practice forty years of empirical research underscoring the wisdom of a second look, acknowledge that all individuals are capable of growth and change, and are sound fiscal policies....

Therefore, we are committing to supporting, promoting and implementing the changes noted below, and calling on others to join us in this critical moment in time in advancing the following reforms:

1. Vehicles for Sentencing Review: We call on lawmakers to create vehicles for sentencing review (in those states where no mechanisms exist) that recognize people can grow and change.  These processes should enable the many middle aged and elderly individuals who have served a significant period of time behind bars (perhaps 15 years or more) to be considered for sentence modification.... We do not ask that all such persons be automatically released from custody. We ask only that there be an opportunity, where justice requires it, to modify sentences that no longer promote justice or public safety.

2. Creating Sentencing Review Units and Processes: We also urge our prosecutor colleagues to add their voices to this call for change and to create sentencing review units or other processes within their offices whereby cases can be identified for reconsideration and modification of past decades-long sentences.

3. Expanded Use of Compassionate Release: We urge elected officials, criminal justice leaders (including judges, prosecutors and corrections leaders), and others to pursue and promote pathways to compassionate release for incarcerated individuals who are eligible for such relief, including people who are elderly or terminally ill, have a disability, or who have qualifying family circumstances....

4. High Level Approval Before Prosecutors Recommend Decades-Long Sentences: Finally, we urge our prosecutor colleagues to create policies in their offices whereby no prosecutor is permitted to seek a lengthy sentence above a certain number of years (for example 15 or 20 years) absent permission from a supervisor or the elected prosecutor. 

April 11, 2021 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

"Against Criminal Law Localism"

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

Scholars have long called for greater localism in criminal justice as a response to the crises of racialized mass incarceration and over-policing.  A downward shift of power to smaller local governments is thought to maximize an array of values, including liberty, equality, and efficient experimentation, and also to allow for criminal justice to better reflect societal viewpoints in policies.  But no criminal “justice” localists have recognized that a critical distinction exists between the devolution of power over criminal “law” and devolution of power over criminal “procedure.”  Because of foundational features of local government law, localities have no authority to decriminalize conduct criminalized by a state — their option is only to add more offenses to the existing state code.  Increased localism in criminal law, then, functions as a one-way ratchet for more misdemeanor criminalization and all its attendant ills: incarceration, crippling fines and fees, and the authorization of more policing, surveillance, and managerial social control of marginalized groups.  Criminal “law” localism will counteract the benefits that criminal “justice” localism is expected to advance.  Pragmatic criminal justice localists should therefore narrow their claim, excising substantive criminal law from their devolutionary program.

April 11, 2021 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)