Monday, September 20, 2021

"Supplementing the Pardon Power: Second Looks and Second Chances"

The title of this post is the title of this online panel scheduled for tomorrow and the second in a terrific series of online panels that will explore in depth the federal clemency powers.   As I detailed in this prior post, this series is jointly organized by the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law, the Collateral Consequences Resource Center, the Federal Sentencing Reporter, and the David F. and Constance B. Girard-diCarlo Center for Ethics, Integrity and Compliance at Villanova University Charles Widger School of Law. 

A whole lot of folks are doing great work putting this series together, and Margaret Love merits extra praise for her efforts and for helping to assemble writings on these timely topics in Volume 33, Issue 5 of the Federal Sentencing Reporter (which largely provides the foundation for these panels).  Here are more details about this first panel:

Supplementing the Pardon Power: Second Looks and Second Chances

Tuesday, September 21, 2021 | 12:30 – 2:00 p.m. EDT | Zoom  (register here)

This panel will look at supplementing, if not supplanting, the pardon power in performing functions that may be better performed by the courts.  That is, should at least some of the pardon action be removed to the federal courts through statutory mechanisms to reduce prison sentences and restore rights and status?  Judge John Gleeson will describe his firm’s Holloway project, which sought to reduce its clients’ lengthy prison terms through the sentence reduction authority in the First Step Act, and consider the extent to which this statutory mechanism should be used to take some of the burden off the pardon power.  Professors JaneAnne Murray and Jack Chin will consider how federal law might be reformed to allow courts to grant pardon-like relief following completion of sentence, through the lens of two 2016 cases in which Judge Gleeson granted post-sentence relief to women he had sentenced more than a decade earlier.  Judge Beverly Martin will consider the role of courts as dispensers of mercy, based on her experiences as a federal prosecutor, a federal trial judge, and a federal appellate judge.  Did Trump’s departure from past pardoning practices pave the way for moving many of pardon’s functions into the courts, as most states have done?

This event is hosted by the David F. and Constance B. Girard-diCarlo Center for Ethics, Integrity and Compliance at Villanova University Charles Widger School of Law.

Panelists:

Jack Chin, Edward L. Barrett Jr. Chair of Law, Martin Luther King, Jr. Professor of Law, and Director of Clinical Legal Education, University of California, Davis, Law School
John Gleeson, attorney and former United States District Judge of the United States District Court for the Eastern District of New York
Judge Beverly Martin, U.S. Court of Appeals for the Eleventh Circuit
JaneAnne Murray, professor of practice, University of Minnesota Law School

Moderator:

Carter Stewart, executive vice president, Andrew W. Mellon Foundation, and former U.S. Attorney for the Southern District of Ohio

September 20, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Two notable new Forbes pieces on the state of federal sentencing and clemency practices

Though both piece merit their own posts, a busy time means I have to combine my coverage of two recent Forbes piece that are worth full reads.  I will be content with a link and a paragraph to whet appetites:

From Brian Jacobs, "The U.S. Sentencing Commission’s Inadequate Response To Covid-19":

For the past 18 months, federal courts have grappled with the impact of Covid-19 on sentencing proceedings, and a curious disparity has emerged.  On the one hand, anecdotal evidence suggests that federal judges are imposing more lenient sentences in recognition of how the pandemic has made imprisonment harsher and more punitive than in the past. On the other hand, reports available from the U.S. Sentencing Commission tell a different story — at least for now — suggesting that courts have to a great extent ignored the pandemic when imposing sentence.  I have written in the past (here and here) about how the body of sentencing law is effectively hidden from public view (as it exists primarily in court transcripts).  This dearth of readily accessible sentencing law is particularly problematic during the Covid-19 pandemic, as courts are grappling with novel issues in hundreds of cases.  The U.S. Sentencing Commission is uniquely positioned to fill this gap, but so far has largely failed to do so.

From Walter Palvo, "Biden Considering Options To Avoid Returning Federal Inmates To Prison Post Covid-19":

The Biden administration’s Department of Justice has started sending out applications to inmates at home under the CARES Act for consideration of a presidential clemency. To be eligible, the inmate must be home under CARES Act, have been convicted of a drug offense and have 4 years or less remaining in their sentence. I spoke with Amy Povah who runs the non-profit Can Do for Clemency program to help prisoners achieve freedom from federal prison through changing laws and clemency. “President Biden has been handed an easy political gift. There are 4,000 inmates functioning in society, obeying the laws, bonding with family and held accountable for their past actions. There is no better group vetted to be given clemency than this group of CARES Act inmates.

September 20, 2021 in Data on sentencing, Federal Sentencing Guidelines, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Senator Cotton: "our severe federal drug sentences are ineffectual, so let's not try to reform them"

Bluto-Being-a-Douche-Punching-A-Horse-In-Popeye_408x408.jpgSenator Tom Cotton can usually be relied upon to provide the "tough-and-tougher" perspective on federal criminal justice laws and policies, and he yet again plays the role of cruel Bluto via this new National Review commentary.  The piece is fully headlined "No More Jailbreaks: Republicans should oppose Democratic efforts to reduce or soften sentencing for drug crimes."  The first paragraph of the piece does not exactly say what I have in quotes in the title of this post, but it strikes me as pretty close:

Last year, for the first time in American history, more than 100,000 Americans died as a result of drug overdoses and homicides.  This deadly contagion of crime continues to afflict our communities and even shows signs of worsening.  Yet politicians in Washington plan to reduce federal sentences for criminals and release thousands of drug traffickers and gang members back onto the streets.

The rest of the piece goes on to largely mischaracterizes various current reform bills — e.g., I believe Senator Cotton is referencing the bill prohibiting sentence enhancements based on acquitted conduct when he assails a proposal "prohibit judges from taking into account certain past criminal activity in sentencing" — and does so using all sorts of silly rhetoric about "jailbreak" bills while making a bizarre claim that small reforms to the federal sentencing system might somehow "hurt the American rule of law and render our federal prison system impotent." 

Senator Cotton never tires of beating the drum for more and more and more incarceration in the United States, despite the fact we remain the most incarcerated nation in the world.  Notably, though, as he rails against the FIRST STEP Act, he fails to note that this reform was championed by Prez Trump and many on the far right of his party.  And most of those on the GOP side who pushed for the FIRST STEP Act are also supportive of additional federal reforms. Given that Senator Cotton these days seems to be one of the very few, even on the GOP side of the aisle, to be calling for "tough-and-tougher" lock-them-all-up approaches to complicated problems, perhaps we ought all just marvel at what it looks like as he spits into the criminal justice reform wind.

September 20, 2021 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Notable accounting of a decade of decarceration via Decennial Census

The Marshall Project has this notable new piece fully headlined "There Are Fewer People Behind Bars Now Than 10 Years Ago. Will It Last?: Census data show incarceration rates are down. It may have more to do with the pandemic than broad reforms."  The piece highlights census data that ought to be encouraging to those troubled by modern mass incarceration, but also notes why April 2020 incarceration data may not reflect persistent realities.  I recommend the piece in full, in part because it enables drilling down into a lot of great data, and here are excerpts:

Nearly two million adults were incarcerated across the country, according to the 2020 Decennial Census.  The latest figures show a 13% drop in the total number of incarcerated people, or nearly 300,000 fewer people, compared with the 2010 Census.  Roughly one-third of the drop in total numbers occurred in just two populous states — California and New York.  In total, 41 states, the District of Columbia and Puerto Rico saw reductions in the total number of incarcerated people.

In five states, the number of incarcerated people actually increased compared with a decade ago, but the incarceration rate still shrank because their total population grew more quickly than the prison population. Just four states — West Virginia, Alaska, Nebraska and Arkansas — saw their incarceration rate increase.

The Decennial Census offers a comprehensive and geographically granular look at the U.S. population by attempting to collect information about where everyone lives as of April 1.  By definition though, it is a snapshot of a brief moment in time, which is a limitation in trying to capture fluctuating numbers.

If the Census was held later in the year, for example, it might have shown a more substantial drop.  The Marshall Project’s COVID-19 tracker showed state and federal prisons had 100,000 fewer prisoners in June 2020 than in April, when the census was taken.  Another study estimated that from mid-year 2019 to mid-year 2020, county jails nationwide had 185,000 fewer people.

Experts say that a combination of factors contributed to this decrease: The court system and parole offices slowed down as they moved operations online, which has reduced the number of people who were sentenced or caught up in parole violations.  In many jurisdictions, police departments also cut back on proactive tactics, such as traffic stops, and the number of drug crimes dropped significantly.  Some prison and jail officials also rushed to empty out facilities to prevent COVID-19 outbreaks.

Broadly, these numbers have already started to tick back up as criminal courts begin to reopen and the criminal justice system is returning to normal, according to a recent report from the Vera Institute of Criminal Justice.  Given how unstable incarceration rates have been since the start of the pandemic — which overlapped with the entire period of census data collection — it may be impossible to draw any long-term conclusions from the apparent drop seen in Census data....

In most states, the raw numbers of incarcerated people didn’t change much, despite widespread efforts to decarcerate prisons and jails during the COVID-19 pandemic.  Instead, a few populous states lost a larger share.  For example, California’s incarcerated population shrunk by 50,000, and New York’s by 30,000.  Together, they account for approximately one-third of the national decrease in incarcerated population, while representing less than one-fifth of the country’s population.  Nine states saw an increase in the incarcerated population.

The incarceration rate provides another perspective.  Many southern states with slightly higher incarcerated populations also saw the fastest population increase in the past ten years. Because the number of people in these states grew faster than the number of incarcerated people, their incarceration rates still went down.

September 20, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Sunday, September 19, 2021

"Crime, quarantine, and the U.S. coronavirus pandemic"

The title of this post is the title of this notable new paper authored by Ernesto Lopez and Richard Rosenfeld just published in Criminology & Public Policy.  Here is its abstract:

Research Summary

Prior research has produced varied results regarding the impact of the coronavirus pandemic on crime rates, depending on the offenses and time periods under investigation.  The current study of weekly offense rates in large U.S. cities is based on a longer time period, a greater number of offenses than prior research, and a varying number of cities for each offense (max = 28, min = 13, md = 20).  We find that weekly property crime and drug offense rates, averaged across the cities, fell during the pandemic.  An exception is motor vehicle theft, which trended upward after pandemic-related population restrictions were instituted in March 2020.  Robbery rates also declined immediately after the pandemic began.  Average weekly homicide, aggravated assault, and gun assault rates did not exhibit statistically significant increases after March.  Beginning in June 2020, however, significant increases in these offenses were detected, followed by declines in the late summer and fall.  Fixed-effects regression analyses disclose significant decreases in aggravated assault, robbery, and larceny rates associated with reduced residential mobility during the pandemic.  These results support the routine activity hypothesis that the dispersion of activity away from households increases crime rates.  The results for the other offenses are less supportive.

Policy Implications

Quarantines and lockdowns, although necessary to reduce contagious illness, are not desirable crime-control devices.  An object lesson of the coronavirus pandemic is to redouble effective crime reduction strategies and improve police–community relations without confining people to their homes.

September 19, 2021 in Impact of the coronavirus on criminal justice, National and State Crime Data | Permalink | Comments (0)

Split Eight Circuit panel upholds order Missouri must improve its parole process to comply with Miller

In this post from two years ago, I noted a federal district court ruling finding that the Missouri's parole policies and practices failed to give juveniles subject to life terms a meaningful opportunity to obtain release as required by Eighth Amendment doctrines. This past Friday, a split Eighth Circuit panel upheld the bulk of this ruling in Brown v. Precythe, No. 19-2910 (8th Cir. Sept. 17, 2021) (available here). Here is how the majority opinion starts and ends:

This appeal arises from a constitutional challenge to Missouri’s remedial parole review process for individuals sentenced to mandatory life without the possibility of parole for homicide offenses committed as juveniles.  The plaintiffs, a class of Missouri inmates who were sentenced to mandatory life without parole for such juvenile homicide offenses (collectively, Plaintiffs or the JLWOP Class), claim that Missouri’s parole review policies and practices violate their rights to be free from cruel and unusual punishment and their rights to due process of law under the U.S. Constitution and the Missouri Constitution.  The district court granted summary judgment in favor of Plaintiffs, holding that Missouri’s parole review process did not provide a meaningful opportunity for release based on Plaintiffs’ demonstrated maturity and rehabilitation.  After ordering Missouri to present a plan to remedy those constitutional violations, the district court also ordered that Missouri (1) could not use any risk assessment tool in its parole review process unless the tool was developed specifically to address members of the JLWOP Class, and (2) was not required to provide state-funded counsel to JLWOP Class members in their parole proceedings.  Having jurisdiction under 28 U.S.C. § 1291, we affirm in part, vacate in part, and remand to the district court for further proceedings....

Accordingly, we affirm the order of the district court that the parole review process of SB 590 violated Plaintiffs’ Eighth Amendment rights, and we affirm the order that Missouri cannot use a risk assessment tool in its revised parole proceedings unless it has been developed to address the unique circumstances of the JLWOP Class.  We vacate the order regarding appointment of counsel and remand for further proceedings consistent with this opinion.  

Judge Colloton's extended dissent gets started this way:

In Montgomery v. Louisiana, 577 U.S. 190 (2016), the Supreme Court addressed how a State may remedy a violation of the rule of Miller v. Alabama, 567 U.S. 460 (2012), that a court may not sentence a juvenile homicide offender to a mandatory term of life without parole.  Montgomery declared that “[a] State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them.”  577 U.S. at 212. Missouri did what Montgomery prescribed: it provided by statute that a juvenile homicide offender who was originally sentenced to mandatory life without parole may petition for parole after serving twenty-five years of his sentence.  Mo. Rev. Stat. § 558.047.1(1).  That should be the end of this case.

The court goes much further and purports to apply the Eighth Amendment rule of Miller and Montgomery regarding imposition of sentence in a criminal case to Missouri’s parole process.  The result is a federal injunction that dictates detailed changes to the Missouri parole procedures and a remand to consider whether the Constitution requires the appointment of state-funded lawyers to represent juvenile homicide offenders in parole proceedings.  It seems to me that there are several analytical difficulties with the court’s approach.

September 19, 2021 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Saturday, September 18, 2021

"'They’re Taking My Stuff!' What You Need to Know about Seizure and Forfeiture"

The title of this post is the title of this new report by Dan Greenberg with the Competitive Enterprise Institute.  Here is its executive summary:

Law enforcement officers in the United States seize billions of dollars in cash and other personal property from members of the public every year.  Most of this seized property is eventually forfeited to state and federal governments.  These seizures and forfeitures rarely require proof of criminal conduct; rather, they often rest merely on the suspicion that the property in question is related to a crime.  As critics of these practices have noted, seizure and forfeiture sometimes result in confiscation of the property of innocent, law-abiding civilians.  Furthermore, because the proceeds of forfeiture typically go straight to law enforcement budgets, this creates perverse incentives that make it more likely that law enforcement officers and prosecutors might devote disproportionate effort to this endeavor.

This paper explains how seizure and forfeiture work.  More precisely, it contains an account of the relatively minimal legal protections that law-abiding civilians have against both seizure and forfeiture.  The paper also provides strategies that the law-abiding civilian can use to reduce the chance of having property seized while traveling.

September 18, 2021 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing | Permalink | Comments (0)

Friday, September 17, 2021

Making the important (but insufficient) claim that jurors should "know what the penalties for a guilty verdict will be"

A couple of month ago, I flagged here the notable new article by Daniel Epps and William Ortman titled "The Informed Jury."  I was pleased to see that this week Epps and Ortman brought their work to the pages of the Washington Post via this notable commentary under the headline "Jurors don’t know what the penalties for a guilty verdict will be. They should."  Here are some extended excerpts (with a bit of commentary to follow):

The American criminal justice system asks jurors to do something extraordinary: They make decisions that have enormous consequences for their fellow citizens’ lives — depriving them of freedom for decades, for example — without knowing those consequences in advance.  That’s because most American jurisdictions follow a rule of jury ignorance, meaning that neither judges nor lawyers may tell jurors what punishment a defendant could receive if convicted....

Keeping juries ignorant, however, exacerbates one of the U.S. criminal justice system’s worst tendencies — its inclination to grow more punitive.  Evidence from both history and social scientific experiments suggest that jurors are less likely to convict if they know a defendant’s punishment could be extremely harsh.  The rule of jury ignorance eliminates an important check on the system.  If politicians thought juries would be less likely to convict when a sentence was severe, for instance, they would be less likely to pass draconian laws.

Replacing ignorant juries with informed ones therefore could be an important criminal justice reform.  As a general rule, then, we propose that judges should tell jurors the range of sentences, including the statutory maximum and any mandatory minimums, that a defendant would face upon conviction. (We make the case in a forthcoming article in the Vanderbilt Law Review.)...

The argument that juries should be informed about sentences should appeal to both liberal and conservative justices of an “originalist” bent — with liberals focusing on how such a reform would democratize the criminal justice system, and originalists focusing on the fact that the ignorant jury lacks a solid historical foundation.

Indeed, juries informed about punishment were quite familiar to the founding generation.  In the 18th century, both in Britain and its American colonies, jurors understood that by finding a defendant guilty of a less serious crime (“libidinous actions,” say) instead of a more serious one (adultery), they could spare them from a death sentence.  Often they did exactly that, even when it was obvious to all that the defendant was guilty of the more serious offense.  It was only in the 19th century — when prisons and incarceration replaced the death penalty as the leading form of criminal punishment — that judges undermined jurors’ opportunity to shape punishment by shielding them from any knowledge of it....

Under our proposal, jurors would know about the punishments that await defendants on the other side of a guilty verdict: Judges would spell out the minimum and maximum sentences as part of their instructions to the jury.... In rare cases, juries would acquit even clearly guilty defendants where they saw the punishment as unjust.

But the transformative potential of informed juries goes beyond what they’d do in individual cases. Informing juries about punishment would alter the incentives for three key actors in criminal justice: Defendants might be more willing to roll the dice at trial (counting on juries to see the unfairness of sentences); prosecutors might think twice before “overcharging” (to avoid losing more cases); and lawmakers might hesitate before enacting severe penalties (after seeing the preceding developments). Informed juries could not single-handedly end mass incarceration or racial disparities, but they could be a step in the right direction....

Informed juries would also be more democratic juries; we’d effectively be asking a group of citizens to authorize a punishment before a judge could impose it. While most criminal laws are enacted at the state or national level, criminal juries are typically drawn more locally, from cities or counties.  Even when members of the communities impacted the most by punitive criminal justice are shut out of decision-making by lawmakers, they can still have a powerful impact in the jury room — if they have the relevant information on which to act.  Such juries would also better honor the spirit of the Constitution’s guarantee of a jury trial than the juries we have today.  Criminal juries were intended by the founders to be powerful checks on state power over criminal punishment; they weren’t supposed to just be narrow fact-finders.

How to bring this reform about?  Legislatures could direct courts to inform jurors about sentencing. Or courts could, on their own accord, reverse the wrong turn they made on juries more than a century ago. (Several federal court judges have expressed frustration over jury ignorance in recent years.)  By giving jurors the important power to determine the fate of those accused of crime, our system places a tremendous amount of trust in the judgment of ordinary people. We should trust juries with information that is critical to their making the soundest, most just decisions possible.

Long-time readers will not be surprised that I support this proposal.  Ever since being deeply moved by Justice Stevens' opinion in Apprendi and Justice Scalia's opinion in Blakely, I have been a avid supporter of having juries play a greater role in our criminal justice systems. (I even wrote an article some years ago making an originalist (and modern) argument that juries should be involved in federal habeas decision-making.) 

But I do not think it is enough to just have juries informed about sentencing possibilities, I think they should also have a direct role in sentencing decision-making.  Specifically, in order to better advance many of the sound goals that Epps and Ortman champion, I think citizen jurors, at least in the federal system, should be authorized and encouraged to provide sentencing advice to federal judges somewhat akin to how the federal sentencing guidelines now provide sentencing advice to federal judges.  That is, I would like to see citizen jurors provide a suggested sentencing range to federal judges, but that range would be advisory and serve as just one factor for the sentencing judge's consideration along with the other 3553(a) factors. 

Problematically, because roughly 95% of all criminal cases are resolved by pleas, informing jurors at a traditional trial only impacts a handful of cases.  I think Epps and Ortman are right that all other other actors in our criminal justice system will be impacted by informed jurors, but I am not sure the impact will always be significant (or positive).  But my vision of advisory federal sentencing juries includes the possibility of making them available in all cases even if the defendant chooses to accept guilt and plead guilty.  Of course, the parties could still bargain around these juries (just as now parties can sometimes bargain around the federal sentencing guidelines), but I suspect in a lot of challenging and important cases some or all of the parties would see the benefit of citizen juror involvement in making a suggested sentencing recommendation.

September 17, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (9)

Second Texas inmate gets execution stay based on religion claim SCOTUS considering in Ramirez

As reported in this post, the Supreme Court last week stayed the execution of John Ramirez and granted certiorari to consider Ramirez’s request that his pastor be allowed to physically touch him and audibly pray in the execution chamber while Ramirez is put to death by the state of Texas.  In this follow-up post, titled "A short de facto execution moratorium?: could other condemned inmates secure a stay until SCOTUS decides new Ramirez case on religious liberty?", I wondered aloud if the SCOTUS cert grant in Ramirez could produce a short de facto execution moratorium based on other death row inmates making a religious liberty claim like Ramirez’s request.

This new AP piece, headlined "Judge delays another Texas execution over religious freedom claims," reports that at least one other Texas inmate has secured an execution stay on the basis of Ramirez.  Here are the details:

Another Texas inmate has had his execution delayed over claims the state is violating his religious freedom by not letting his spiritual adviser lay hands on him at the time of his lethal injection.

Ruben Gutierrez was set to be executed on Oct. 27 for fatally stabbing an 85-year-old Brownsville woman in 1998.  But a judge on Wednesday granted a request by the Cameron County District Attorney’s Office to vacate the execution date. Prosecutors said the U.S. Supreme Court’s upcoming review of similar religious freedom issues made by another inmate, John Henry Ramirez, whose execution the high court delayed last week, will impact Gutierrez’s case.

“As the Ramirez matter may be dispositive of any issue related to Gutierrez’s religious liberty claim, it is in the best interest of the state, the family of the victim of Gutierrez’s crimes, that his execution be delayed,” prosecutors said in a motion filed Tuesday.

Gutierrez was previously an hour away from execution in June 2020 when the Supreme Court granted him a stay because his spiritual adviser was not allowed to accompany him in the death chamber.

Last month, Gutierrez’s attorneys filed a complaint in federal court alleging the Texas Department of Criminal Justice was violating his right to practice his religion by denying his request to have his priest touch his shoulder, pray out loud and perform last rites when he was executed.

Gutierrez, 44, said that these three things need to be done “to ensure my path to the afterlife,” according to his complaint.  His attorneys cited the Constitution’s First Amendment and a federal statute that protects an inmate’s religious rights. Ramirez made similar claims when he was granted a stay.

The Supreme Court has dealt with the presence of spiritual advisers in the death chamber in recent years but has not made a definitive ruling on the issue.  That could change after it hears oral arguments in Ramirez’s case on Nov. 1.

Prior related posts:

September 17, 2021 in Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (3)

Thursday, September 16, 2021

US Sentencing Commission releases FY 2021 third quarter sentencing data showing COVID's continued (but reduced) impact on federal sentencings

I just noticed that the US Sentencing Commission this week published here its latest quarterly data report which is described as a "3rd Quarter Release, Preliminary Fiscal Year 2021 Data, Through June 30, 2021."  These new data provide another official accounting of how COVID challenges continued to reduce the usual total number of federal sentences imposed, though in the latest quarter we are seeing a return almost to pre-pandemic norms. 

Specifically, as reflected in Figure 2, in pre-pandemic years, quarterly cases sentenced generally averaged around 17,000 to 19,000.  But in the three quarters closing out 2020, amid the worst early periods of the pandemic, there were only between about 12,000 and 13,000 cases being sentenced each quarter.  In the most recent quarter report, which ran from April 1 to June 30, 2021, about 15,000 cases were sentenced in federal court.  Figure 2 also shows that major declines in the total number of immigration cases sentenced are what primarily accounts for the decrease in overall federal cases sentenced.  For the other big federal case categories -- Drug Trafficking, Firearms and Economic Offenses -- the total number of cases sentenced in recent quarters are not off that much from recent historical norms.

Consistent with what I noted in this prior post about pandemic era USSC data, these data show an interesting jump in the percentage of below-guideline variances granted in the last four quarters (as detailed in Figures 3 and 4).  But I remain unsure if these data reflect significantly different behaviors by sentencing judges over the last year or is just primarily a product of the altered mix of cases now that the number of immigration cases being sentenced has declined dramatically.

Prior recent related post:

September 16, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Impact of the coronavirus on criminal justice | Permalink | Comments (0)

"Punishment and the Body"

The title of this post is the title of this notable new article authored by Christopher Belshaw that I just saw in the new Journal of Controversial Ideas.  Here is its abstract:

Suppose we accept that punishment can be legitimate.  What form should it take?  Many of us believe that it can be acceptable to fine or imprison someone, but that capital punishment, along with corporal punishment in its various manifestations, is wholly unacceptable.  I suggest that it is hard to account for or justify this distinction.  But granting that resistance to these latter forms is unlikely to be dislodged, and granting too that imprisonment in particular is hardly problem-free, it is worth considering whether there might be alternatives.  And I argue here that we should consider enforced coma as a procedure having many advantages over the more familiar methods of delivering a penalty.  Of course, there are disadvantages also.  The aim isn’t to offer a detailed and practical solution to the problem of crime, but to explore some of the presumptions and principles involved in our thinking about punishment.

September 16, 2021 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Making the case for a ceiling on the trial penalty

Marc Levin has this notable new commentary on plea practices and the trial penalty over at The Crime Report under the headline "‘Planning for Losing’: A Lesson on Justice Reform from Afghanistan." I recommend the piece in full, and here is a taste:

Akin to a peace deal in the American justice system, plea agreements enable defendants to avoid the worst possible scenario in exchange for waiving their right to a battle at trial.  However, the current approach to these deals means a defendant who does not concede defeat upfront can obtain no assurance regarding their sentence if convicted.

This dynamic has led to a disparity or “trial penalty” that is so pronounced that, in addition to expending the processing of the guilty, it effectively coerces many innocent defendants to plead guilty.

A National Association of Criminal Defense Lawyers report, for example, found that the average sentence for fraud defendants who went to trial in 2015 was three times higher than the sentence for those who pleaded guilty; for defendants charged with burglary and embezzlement, the sentence at trial was almost eight times higher.

Indeed, one simulation suggests that more than half of participants in an experiment would be willing to confess to a crime they didn’t commit in exchange for a significantly lower sentence. Some 15 percent of DNA exonerations, which generally involve charges for the most serious crimes, involve those who pleaded guilty....

The trial penalty that coaxes both the guilty and innocent to enter pleas is exacerbated by mandatory minimum statutes, which trigger automatic penalties if invoked by the prosecutor, as well as sentencing enhancements within the discretion of the prosecutor, such as whether to file notice with the court of a prior offense.

One potential solution for reining in the trial penalty is to require that any plea deal offered by prosecutors include a contingency guaranteeing that the sentence would be similar upon conviction at trial.  Under this scenario, defendants who exercise their right to go to trial might be entitled to a sentence that is the same or no more than 15 percent longer than the best offered deal.

Russell Covey, a professor at Georgia State University College of Law who has studied plea bargaining, has outlined how this sentence “ceiling” tied to the best plea offer could work in practice.  The late dean of Harvard Law School, James Vronberg, has also weighed in, arguing that a differential of 10 to 20 percent would be sufficient to entice defendants who are guilty to enter mutually beneficial plea agreements, and would not be coercive....

Whether in peace deals or plea bargaining, there is value in reaching an advance agreement on at least a range of ultimate outcomes that is contingent on one party’s defeat.  Yet current plea bargaining practice offers defendants an all-or-nothing proposition, requiring them to accept the risk of a far more severe sentence in order to pursue their constitutional right to trial and thereby test the evidence against them.

The imperative for ensuring a sentence bears some relationship to the plea offer is not just about avoiding people pleading guilty to crimes they didn’t commit.  It is also essential at the systemic level to achieve greater fairness and reduced sentencing disparities in the resolution of comparable cases.  Reining in the trial penalty will ensure the efficiency imperative does not sideline the pursuit of equity and due process.

September 16, 2021 in Procedure and Proof at Sentencing | Permalink | Comments (1)

Wednesday, September 15, 2021

Utah prosecutors urge repeal of death penalty as "grave defect that creates a liability for victims of violent crime, defendants' due process rights, and for the public good"

As reported in this local article from Utah, a "coalition of district attorneys and county prosecutors from around the state made noise on Tuesday, presenting a joint letter to be sent to Governor Spencer Cox and the State Legislature, asking for a repeal of the death penalty."  Here is more:

Citing six specific reasons, the four attorneys; Christina Sloan of Grand County, Margaret Olson of Summit County, David Leavitt of Utah County, and Sim Gill of Salt Lake County combined their influence to pen a recommendation to replace the death penalty sentence for aggravated murder to a term of 45 years to life....

The last person to be executed by the state in Utah was Ronnie Lee Gardner on June 18, 2010. His execution by firing squad (yes, that is still an option if lethal injection is held unconstitutional, unavailable, or if the convicted selected that method before May 3, 2004) was highly publicized at the time.  However, it came 26 years after his murder of an attorney during an escape attempt while being transported to a hearing for a separate robbery and murder.

Following his death sentence, which was given in October 1985, Gardner’s case was trapped in a series of appeals and defense motions that delayed his execution. Likely, the court and legal fees that were involved in finally carrying out his sentence were in the hundreds of thousands of dollars, if not more....  The coalition of attorneys in Utah referred to another study concluding that death penalty convictions cost taxpayers $1.12 million more than holding them for life. “A death sentence also carries the inevitable expenses of appeal.  The taxpayers must pay for both the prosecution and the defense in these hearings,” the letter reads....

Attempts have been made before to repeal the death penalty in Utah. In 2018, a death penalty amendment was introduced in the state legislature as House Bill 379.  The provisions were filed in the house but didn’t pass, even after a favorable recommendation from the Law Enforcement and Criminal Justice Committee.

This four-page prosecutor letter, styled as "An Open Letter to Governor Spencer Cox and the Utah State Legislature," is worth a full read. It starts and ends this way:

As attorneys and duly elected public prosecutors, we have sworn to support, obey, and defend the Constitution of the United States and the Constitution of Utah.  We also have a statutory duty to call to the State Legislature's attention any defect in the operation of the law.  In fulfillment of that oath and responsibility, we alert legislators and the people of a grave defect that creates a liability for victims of violent crime, defendants' due process rights, and for the public good. The defect which we urge the Legislature to repeal is the death penalty....

Doctors take the Hippocratic oath to do no harm to people when they become licensed.  The promise of an attorney is one to uphold and defend the Constitution.  Yet as prosecutors, our client is the public.  We file our cases in the name of the state of Utah.  We work to protect public safety, preserve the privacy and dignity of crime victims and to hold the guilty accountable.  Then, once a defendant is convicted, we seek to make victims whole and ensure that a defendant does not harm others again.  When someone commits a violent murder, nothing can repair the damage that person has caused.  No earthly court can order restored life to a murdered son or daughter or a healed heart to a crushed husband or wife.  However, we can ensure that the offender goes to prison.  If the Legislature repeals the death penalty, the available sentences for aggravated murder will be life without parole or 25 years to life.  Twenty-five years is far too short of a time for our most violent offenders.  Most people convicted of aggravated murder are young men.  We believe that justice requires the third optionof45 years to life to be made available. As prosecutors, we are not seeking mercy for the murderer but justice for the people.  A 45 to life sentence will mean that if an offender ever gets out, it will not be until the twilight of their lives.  That will protect the public and, to the extent possible, provide a small measure of justice for what that person has taken away.  Accordingly, we call on the Legislature to remedy this defect in the law by repealing the death penalty and creating a new possible alternative to life without parole of 45 years to life.

September 15, 2021 in Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Convicted January 6 rioter, who (below-guideline) sentence of eight months in federal prison, seeks to undo his plea and sentence

This new Politico piece, fully headlined "First Jan. 6 rioter sentenced for a felony seeks to unwind plea deal; Paul Hodgkins is claiming through a new attorney that his signature on the deal was forged," reports on a notable post-sentencing effort by a notable defendant to undo his plea.  Here are just some of the interesting details:

The first Jan. 6 rioter sentenced for a felony charge began mounting a desperate bid Wednesday to unravel his plea agreement, claiming through a newly retained attorney that his signature on the deal was forged.  But the federal judge in the case, Randy Moss, expressed skepticism about the claim and noted it could even put Paul Hodgkins at legal risk, since he said under oath that he had reviewed and accepted the plea deal.

Hodgkins was charged with felony obstruction of Congress for breaching the Capitol and making his way to the floor of the Senate, where images show him donning gloves and rifling through some papers left in the evacuated room.  He pleaded guilty to the charge in June, while being represented by attorney Patrick Leduc, a JAG Reserve officer who later deployed to Qatar, where he is assisting with Afghan refugee rescue operations.

Moss sentenced Hodgkins in July to an eight-month jail term, far below the government’s recommended 16-month sentence, an acknowledgment that Hodgkins was among the first to accept responsibility for his role in the breach.  But Hodgkins’ new claim puts the matter into turmoil.  Hodgkins had asked Moss to delay his jail sentence, which is set to begin on Sept. 20, until January, giving him time to mount his effort to unwind the plea agreement.  But Moss rejected that attempt Wednesday afternoon, saying Hodgkins "has not demonstrated good cause for the requested four-month delay."

His new attorney, Carolyn Stewart, made the forgery allegation during a hearing called by Moss to address Hodgkins’ claim that Leduc provided ineffective counsel. She said she retained handwriting expert Curt Baggett to review the document and confirmed that it was not Hodgkins’ signature on the agreement.  Baggett, she said, would be willing to testify to it in court.  Stewart suggested that the allegedly forged signature was one of many irregularities tainting the case. “It’s mind boggling,” the defense attorney said, mentioning that she is attuned to such patterns because of her work as an intelligence analyst in Afghanistan. “These kinds of things keep popping up ... I’m floored.”

LeDuc said in an email to POLITICO that the claim of a forged signature was "insane" and that he painstakingly reviewed the deal with Hodgkins.  "I went over every single line of that plea agreement with Paul for about three hours to include the factual stipulations and he signed the thing in front of me and then came back and [re-signed] the other form as well," he said.  "Nothing happened in the case without Paul’s consent.  I don’t understand any of this this. It is insane and I am just so over it all."

In a phone interview, Baggett confirmed he conducted the analysis of Hodgkins’ handwriting at Stewart's request and indeed concluded the signature had been forged.  It’s unclear, though, what bearing the allegation has on Hodgkins’ guilt, since he entered the plea in an open court hearing and acknowledged his guilt for the alleged offenses, and Moss ran through many of the provisions of the deal with him.

The judge didn’t opine directly on the forgery allegation Wednesday, but he did note that the reason “a lot of time” was spent on the colloquy with Hodgkins is to “guard against” subsequent claims that the defendant didn’t understand the agreement or the consequences of pleading guilty.  Moss also warned Stewart that by claiming the signature was forged she could be suggesting that her client lied under oath in his statements at the plea hearing in June....

Stewart’s allegation appeared to rankle prosecutor Mona Sedky, who called the Florida-based lawyer a “relatively new” attorney and said some of the messages she’d gotten from the lawyer were unconventional.  “I’ve been tolerant of a lot of very strange and and unorthodox communications, for lack of a better word, and I’ve been not putting it in my pleadings and not raising it with the court out of respect to her,” the prosecutor said.

Prior related posts on Hodgkins:

September 15, 2021 in Celebrity sentencings, Procedure and Proof at Sentencing | Permalink | Comments (13)

"COVID-19 Relief and the Ordinary Inmate"

The title of this post is the title of this new article now available via SSRN and authored by Jenny Carroll.  Here is its abstract:

As scholars and advocates have lamented the deficiencies of remedies pre- and post-conviction for the extraordinary, the “ordinary” are not saddled with slow and deficient remedies -- they have none.  This Essay explores this absence of such relief for those unable to make an extraordinary claim during the COVID-19 public health crisis of 2020.  For the ordinary men, women, and children held in custody in 2020 and beyond, pretrial detention and sentencing laws make no exception in the face of a potentially fatal contagion or the public health crisis it creates.  Yet, the pandemic highlights the reality that systematic flaws -- carceral systems that permit mass infection within and outside their walls and release triggers premised on extraordinary circumstances or conditions -- are a sort of roulette of disaster for ordinary people in custody who lack access to pre- and post-conviction relief.  As problematic as these flaws are, they also represent an opportunity to reconsider the priorities that animate such relief and to question (or reimagine) systems that rebalance those priorities not just around the lives of the extraordinary, but around the lives of the ordinary. 

September 15, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Tuesday, September 14, 2021

Yet more must-read new essays in Brennan Center's "Punitive Excess" series

highlighted here back in April the terrific new essay series assembled by the Brennan Center for Justice under the title "Punitive Excess."  I have blogged about sets of new essays repeatedly (as linked below) because each new set of new essays are must reads (like all that come before).  Here is the latest trio:

Prior related posts:

September 14, 2021 in Recommended reading, Who Sentences | Permalink | Comments (0)

New letter with prominent signers urges Prez Biden to pardon all non-violent marijuana offenders

As reported in this press release, "150+ artists, athletes, producers, lawmakers, law enforcement officials, academics, business leaders, policy experts, reform advocates, and other professionals, signed a letter to U.S. President Joseph R. Biden, Jr. requesting a full, complete, and unconditional pardon to all persons subject to federal criminal or civil enforcement on the basis of a nonviolent marijuana offense."  (Disclosure: I am a signer of this letter.)  The full letter is available at this link, more about the effort is available here as well as from the press release:

The letter, which was spearheaded by the advocacy group The Weldon Project, includes signatures from celebrities such as Drake, Killer Mike, Deion SandersAl Harrington and Kevin Garnett.  Kazan will also participate in a live-streamed event today airing on Vimeo and moderated by Politico reporter Mona Zhang,  at 11:00 a.m. PT to discuss the letter and reinforce the case to provide clemency to all federal nonviolent marijuana offenders.

"The harms of incarceration are obvious, but the pains of federal marijuana convictions transcend prison walls, making it more difficult for someone to get a job, access affordable housing, and receive an education.  A conviction can forever limit an individual's constitutional rights and can put the American dream further out of reach for an entire family. Enough is enough.  No one should be locked up in federal prison for marijuana.  No one should continue to bear the scarlet letter of a federal conviction for marijuana offenses," the letter says, noting that three-quarters of the states have now abandoned the federal government's blanket criminal ban in favor of safe, regulated legal access to marijuana for adults and/or those with qualifying medical conditions.

The request to U.S. President Biden comes at a time when an overwhelming 68% of U.S. adults support the federal legalization of cannabis, and 1 in 3 Americans live in states where cannabis is legal for adults to use.  Thousands of individuals are currently incarcerated in the United States for nonviolent cannabis-related crimes, while countless others have had their rights and livelihoods stripped away because of prior arrests and sentences....

The letter to President Biden points out that a full pardon of federal marijuana offenders is consistent with the Constitution and past practices of presidents from both political parties.  "In 1974, President Ford established a program of conditional clemency for Selective Service Act violators.  In 1977, President Carter issued a categorical pardon to all Selective Service Act violators, closing the book on a costly and painful war.  President Biden has the power to do the same for the federal war on marijuana.  Through his act of constitutional grace, a general clemency will send a clear and powerful message that our country is truly taking a new course on criminal justice policy and practice."  In December of 2020, Angelos was fully pardoned by President Trump.

The stories of those who would be helped by a pardon are compelling: Drake, Meek Mill, Lil Baby, Killer Mike, and dozens of other hip-hop artists, for example, signed on in support of their friend and fellow rapper Ralo, who is facing 8 years for a nonviolent cannabis offense. "I appreciate my friends and peers in the hip-hop community, especially Drake, supporting my clemency because it's just not right that corporations are allowed to violate federal law and become millionaires while people like myself go to prison for years," Ralo said. "This is hypocrisy. I hope that Joe Biden honors his campaign promise and grants us clemency without delay, so I can return to my family and community."

September 14, 2021 in Clemency and Pardons, Marijuana Legalization in the States, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

NACDL produces notable new report on data-driven policing and racial bias in criminal justice system

As detailed in this new press release, "today, the National Association of Criminal Defense Lawyers (NACDL) released its latest report – Garbage In, Gospel Out: How Data-Driven Policing Technologies Entrench Historic Racism and ‘Tech-wash’ Bias in the Criminal Legal System."  Here is  more from the release:

As explained in the report, in recent years, police departments have been turning to and relying on rapidly developing data-driven policing technologies to surveil communities, track individuals and, purportedly, predict crime.  These technologies include algorithmic decision-making that departments claim can predict where crime is likely to occur, who will likely commit crime, and who will likely be a victim.  These algorithms are thus designed to interrogate massive troves of data gathered in a myriad of ways, using inputs that can range from police-generated crime reports to publicly available social media posts.  The outputs are then used to make critical decisions about patrols, or to make life-altering designations of individuals.

The purpose of this Report is to: (1) call attention to the rapid development and deployment of data-driven policing; (2) situate data-driven policing within the racialized historical context of policing and the criminal legal system; (3) make actionable recommendations that respond to the reality, enormity, and impact of data-driven policing; and (4) suggest strategies for defense lawyers in places where data-driven policing technology is employed.

“This Report will contribute profoundly to the national conversation regarding the inhumane, unfair, and destructive impact of racism and bias in policing,” said NACDL President Martín Antonio Sabelli.  “As the title of the Report suggests, data-driven policing technologies amplify the effects of systemic racism in policing by collecting data based on racist policing (including, for example, overpolicing of communities of color) and treating that garbage data as gospel for future policing decisions. ‘White-washing’ this biased data does nothing more than give a veneer of respectability and an appearance of neutrality while entrenching problematic practices rooted in racism.  The report calls for the abandonment of data-driven policing, wherever possible, and transparency and accountability where such practices have already become entrenched.”

“For more than two years, NACDL’s Task Force on Predictive Policing conducted research and interviews across the nation, leading to this report and the recommendations and suggested strategies set forth in it,” explained NACDL Task Force on Predictive Policing Chair Cynthia W. Roseberry.  “This report works to demystify the practice of data-driven policing to ensure that those engaged in the essential work of combatting systemic racism in the criminal legal system can operate with full information.  This report is not only an important addition to the body of scholarship in this area, it will also serve as a vital tool for advocates and defenders alike.”

The Report’s major topics include (1) the history of policing and the economics of punishment, (2) the history of surveillance and the rise of big data, (3) the landscape of data-driven policing, (4) critical analysis of data-driven policing, (5) task force recommendations on data-driven policing technologies, (6) an overview of state and local legislation, (7) an overview of police departments that have suspended or terminated contracts with data-driven policing programs, and more.

The full 100+-page report is available at this link.

September 14, 2021 in Procedure and Proof at Sentencing, Race, Class, and Gender, Technocorrections, Who Sentences | Permalink | Comments (0)

Last call for "Donald Trump’s Theatre of Pardoning: What Did We Learn?"

Today is the day for this online panel, the first in a terrific series of online panels exploring in depth federal clemency powers.  As explained in this prior post, this series is jointly organized by the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law, the Collateral Consequences Resource Center, the Federal Sentencing Reporter, and the David F. and Constance B. Girard-diCarlo Center for Ethics, Integrity and Compliance at Villanova University Charles Widger School of Law. 

A whole lot of folks are doing great work putting this series together, and Margaret Love merits extra praise for her efforts and for helping to assemble writings on these timely topics in Volume 33, Issue 5 of the Federal Sentencing Reporter (which largely provides the foundation for these panels).  Here are more details about today's first panel:

Donald Trump’s Theatre of Pardoning: What Did We Learn?

Tuesday, September 14, 2021 | 12:30 – 2:00 p.m. EDT | Zoom  (Register here)

This panel will examine the unusual nature of President Donald Trump’s pardoning, looking at the grants themselves and the process that produced them.  Professors Bernadette Meyler and Frank Bowman, both scholars of the pardon power, will look to history for anything comparable to Trump’s use of the pardon power, and comment on its implications for the role that pardon has historically played in the U.S. justice system.  Amy Povah will share her experiences as someone who was personally involved in recommending cases to the White House at the end of the Trump Administration.  Kenneth Vogel will share his experiences as a journalist covering Trump’s pardons for the New York Times.  This panel will set the stage for the two subsequent panels about the future of presidential pardoning, by asking basic questions about the role of a regular pardon process and the result of it having been sidelined by Trump.  It will also consider whether Trump’s pardons were an aberration or the predictable result of trends in pardoning over the past thirty years.

Panelists:

Frank Bowman, Floyd R. Gibson Missouri Endowed Professor of Law, University of Missouri School of Law
Bernadette Meyler, Carl and Sheila Spaeth Professor of Law, Stanford Law School
Amy Povah, founder, CAN-DO Justice through Clemency
Kenneth VogelNew York Times

Moderator:

Margaret Love, executive director, Collateral Consequences Resource Center and former U.S. Pardon Attorney

September 14, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, September 13, 2021

Action beginning on Biden clemency plan for some drug offenders in CARES home confinement cohort

As discussed in this post from late last month, there has been talk that Prez Biden might use his clemency powers to help ensure that some member of the CARES home confinement cohort does not have to return to prison after the pandemic.  This new Politico piece, headlined "Biden starts clemency process for inmates released due to Covid conditions," reports on new action on this front:

The Biden administration has begun asking former inmates confined at home because of the pandemic to formally submit commutation applications, criminal justice reform advocates and one inmate herself tell POLITICO.

Those who have been asked for the applications fall into a specific category: drug offenders released to home under the pandemic relief bill known as the CARES Act with four years or less on their sentences.  Neither the White House nor the Department of Justice clarified how many individuals have been asked for commutation applications or whether it would be expanding the universe of those it reached out to beyond that subset.  But it did confirm that the president was beginning to take action.

“The Biden-Harris Administration is working hard every single day to reform our justice system in order to strengthen families, boost our economy, and give Americans a chance at a better future," said White House spokesperson Andrew Bates. "As part of this, President Biden is deeply committed to reducing incarceration and helping people successfully reenter society.  As he has said, too many Americans are incarcerated -- and too many of those incarcerated are Black and Brown. That is why the President is exploring the use of his clemency power for individuals on CARES Act home confinement. The Administration will start the clemency process with a review of non-violent drug offenders on CARES Act home confinement with four years or less to serve.”

The requests from the administration are a concrete sign that the president is planning to use his clemency powers to solve what was shaping up to be one of the thornier criminal justice matters on his desk. The New York Times previously reported that such requests for applications would be coming....

“While we are excited to hear the Biden administration is actively seeking clemency petitions for non violent drug offenders, we pray he will not carve up CARES Act recipients into small subsets,” said Amy Povah, a former prisoner who has become a well known clemency advocate.  “No other president in history has been handed a 'dream come true' opportunity to easily identify a large group of individuals who have already been vetted and successfully integrated into society, many of whom are now gainfully employed, found housing, and are healing the family unit that was injured due to tough-on-crime sentencing policies that previous administrations have acknowledged are horribly unjust.”

Rachel Hanson, 37, was one of those paroled inmates who was at risk of being sent back to her federal facility.  She was 8.5 years into a 151 month sentence for charges of possession with intent to distribute an unspecified amount of cocaine.  She had been released from prison in August of 2021 under the CARES Act but kept in home confinement wearing an ankle monitor.  She was contacted by her case manager on Friday, who told her that her name was submitted by the Department of Justice for expedited clemency and that she needed to fill out her clemency packet right away.

She described the events of the past few days as a blur. “I was so surprised,” she said. “I didn’t expect it.  You hear about clemency. You know it happens to people but you don’t always see.” Hanson has three children, one of whom is a senior in high school. She has a job interview lined up for Tuesday for a production coordinator post at a welding factory.  She has to rush to get her clemency packet completed first....

Udi Ofer, the ACLU’s deputy national political director, said that while he was heartened that the administration was now acting, he faulted the administration for acting in a less than transparent way with advocates and advocacy groups in the criminal justice space.  He said he was troubled by the possibility that it was cleaving off CARES Act recipients into those deserving commutation and those who didn’t.  He noted that the Bureau of Prisons, in originally releasing inmates under the CARES Act, had already made a determination between those who posed a threat of violence and those who didn’t.  “On the other hand, through the anecdotal information we’re seeing, we are worried that the White House is viewing this issue too narrowly and unnecessarily restricting the category of people being asked to apply for clemency,” said Ofer.

Some advocates for clemency and other forms of sentence reduction also expressed concern that the Biden administration’s move essentially put it in the position of working from a list developed by the Bureau of Prisons during the Trump administration, in a process critics said lacked clear guidelines and transparency.  “It’s not clear how the Bureau of Prisons chose people for this home confinement program, which raises the question of whether it’s fair to give a special benefit to these folks not available to those who have filed clemency petitions sometimes years ago and have been patiently waiting,” said Margaret Love, who served as Justice Department pardon attorney under Presidents George H.W. Bush and Bill Clinton.

I am very pleased to hear of some tangible developments on this long-simmering front, though I would really now be eager to see some detailed accounting of how many members of the CARES home confinement cohort are drug offenders with four years or less on their sentence.  I am also not going to expect or assume that Prez Biden is going to grant clemency to a notable number of individuals until he actually grants clemency to a notable number of individuals.  And I hope this process might prove transparent along the way (as well as robust and just the start of  overdue clemency efforts).

I am now wondering about the expected specifics of clemency grants by Prez Biden for some members of the CARES home confinement cohort.  Through clemency, Prez Biden could shorten the prison terms of individuals so that they have no more time left to serve in prison or on home confinement.  I am assuming that is the working plan, though I think Prez Biden could also opt to just convert remaining prison terms into time to be served only and entirely on home confinement.  As I have highlighted in prior posts here and here, many member of the CARES home confinement cohort could be bringing sentence reduction motions under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A), and it is interesting to think how pending clemency talk and coming action might impact efforts to secure relief through the courts.

Interesting times.

Some of many prior related posts:

September 13, 2021 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)