Sentencing Law and Policy

Reviewing the big little and/or case, Pulsifer v. US, that will kick off the new Supreme Court Term

I am excited that the US Supreme Court starts hearing cases this coming Monday to kick off October Term 2023, and I am especially excited that its first case for argument is Pulsifer v. United States.  Stated in a pithy way, the issue in Pulsifer is whether the word "and" as used in the FIRST STEP Act's expansion of the mandatory minimum statutory safety valve actually means "and" or might instead mean "or."   I have seen only a couple press previews of the case so far:

From the AP, "The Supreme Court will hear a case with a lot of ‘buts’ & ‘ifs’ over the meaning of ‘and’"

From Forbes, "Why Thousands Of Prisoners Could Be Spared Because Of A Supreme Court Case Over The Word ‘And’"

In addition, Balls and Strikes has published a commentary about the case with a eye-catching headline: "How the Supreme Court Could Undercut the Future of Criminal Justice Reform."

Though I do not see the fate and future of criminal justice reform as fully at issue in Pulsifer, the US Sentencing Commission set forth data earlier this year which suggests that the fate and future of thousands of federal drug defendants will be impacted by Pulsifer.  Specifically, on page 11 of this February 2023 document discussing possible guideline amendments, the USSC set forth this analysis:

Using fiscal year 2021 data, Commission analysis estimated that of 17,520 drug trafficking offenders, 11,866 offenders meet the non-criminal history requirements of the safety valve (18 U.S.C. § 3553(f)(2)–(5)).  Of those 11,866 offenders, 5,768 offenders have no more than one criminal history point and would be eligible under the unamended pre-First Step Act criminal history requirement.  Under a disjunctive interpretation of the expanded criminal history provision, 1,987 offenders would become eligible.  The remaining 4,111 offenders would be ineligible.  In comparison, under the Ninth Circuit’s conjunctive interpretation of the expanded criminal history provision, 5,778 offenders would become eligible.  The remaining 320 offenders would be ineligible.

I read this data analysis to mean that in a typical year, nearly 4000 additional federal drug defendants could benefit from the more defendant-friendly interpretation FIRST STEP Act's expansion of the mandatory minimum statutory safety valve (in other words, if "and" means "and" and not "or").  Of course, not all defendants are subject to a significant statutory mandatory minimum term (and some avoid such a term by providing substantial assistance), but the Commission's proposed guideline amendment creates a guideline reduction that makes the safety value functionally significant to every drug defendant.

In addition to helping thousands of federal drug defendants in future cases, a pro-defendant ruling by the Supreme Court could potentially help thousands of federal drug defendants currently in prison.  Given that the FIRST STEP Act reforms have been applicable since Dec 2018, and that a number of circuits rejected the more defendant-friendly interpretation (finding that "and" really means "or" here), I have speculated that perhaps as many as 10,000 or more persons now serving time in federal prison for drug offenses might have a claim that they would have benefitted, and now should benefit, from the defendant-friendly interpretation (though there may be, of course, procedural barriers for any prisoners seeking to secure relief from a positive Pulsifer SCOTUS ruling).

I suspect we will get a sense of the Justices' thinking about this and/or statutory interpretation issue during oral argument on Monday, and I am already excited to have a SCOTUS sentencing oral argument to listen to next week.

Robina Institute completes huge project on states' prison-release frameworks

I was pleased this morning to receive an email titled "The Robina Institute Has Completed a Three-Year Effort to Produce Individual Reports on the Prison-Release Frameworks of All 50 States and D.C." This news is worthy of celebration as the text of the email explains (with links from the original):

We're excited to share that the Robina Institute has completed a monumental three-year research project on prison-release mechanisms across all 50 states and the District of Columbia, providing unprecedented insights into the determinants of actual-time-served in prison. This effort was led by Kevin Reitz as part of the Prison Release: Degrees of Indeterminacy Project.

What's in the Reports?

Each report delves into the intricacies of the respective state's prison release frameworks, including the decision-makers and varied mechanisms impacting prison populations.  These reports average 20 pages and are a comprehensive resource for those seeking to understand the causes of mass incarceration and its potential remedies.

Understanding Prison Release Mechanisms 

Each state has its unique blend of mechanisms, such as parole boards, sentence discounts for good or earned time, executive clemency, compassionate release, and emergency release protocols.  These reports provide models and measurements illustrating the distribution of release discretion power among officials, and the interactions between different forms of release discretion.

Insights Into Decision-Making Power 

The reports critically assess which official actors have the power to determine prison population size in each jurisdiction, whether through front-end sentencing discretion by judges and prosecutors or through back-end agencies, including parole boards and departments of corrections.

Why Is This Important? 

Understanding prison-release discretion is crucial in unraveling the complexities of mass incarceration in America. States exhibit substantial diversity in structuring the laws, policies, institutions, and practices of prison-release discretion.  Until now, there wasn't a resource that comprehensively compared the American state-level frameworks, making this series invaluable for those involved in policymaking and criminal justice reform.

We extend our thanks to Arnold Ventures for their support in this project.

Read the Reports

Making the case for expanded use of home confinement for older federal prisoners

Hugh Hurwitz, who served as Acting Director of the federal Bureau of Prisons, has this new commentary in The Hill headlined "Moving elderly prisoners home saves taxpayer dollars without sacrificing safety." I recommend the full piece (and its many links), and here are excerpts:

The First Step Act reauthorized and modified the pilot program for eligible elderly offenders and terminally ill offenders.  This section allows offenders who are over 60 years of age, have served two-thirds of their sentence, are not convicted of a crime of violence and do not have a history of escape to be placed on home confinement for the remaining portion of their sentence.

Well-established research shows that older people are substantially less likely to recidivate.  In fact, the U.S. Sentencing Commission reported the recidivism rate of people over the age of 50 was less than half that of those under 50.  Under the pilot program, only those over 60 are considered, and they can’t have any history of violence, thus making their recidivism rate even lower.

At the same time, the cost of housing older people is becoming astronomical.  The average age of people in the Federal Bureau of Prisons (BOP) facilities has increased by 8 percent over the past decade.  Approximately 45 percent of offenders have multiple chronic conditions. As people age in prison, the demands on the bureau’s health resources will continue to increase....

Since the First Step Act was established, very few have been placed into this pilot program.  The program was first established in 2008 as part of the Second Chance Act. In this year’s Annual Report to Congress on the First Step Act, the Department of Justice reported that only 1,219 have been placed in the pilot program between its original enactment and this January.  Under the act, monthly placements have dwindled to an average of four per month, and a total of only 152 during its first three years.

In comparison, under the CARES Act, BOP placed an average of over 250 people per month on home confinement.  This pilot program has not been given a chance to see if it works.  It is hard to believe that Congress’s rare bipartisan acts of creating and extending this program were expected to reach so few people.  Undoubtedly, it intended this program to move the lowest risk and most costly people to home confinement; and if successful, Congress would consider making it permanent....

The SAFER Detention Act, sponsored by Sen. Dick Durbin (D-Ill.), seeks to take this program a step further.  This bill would lower eligibility to include nonviolent offenders who have served at least 50 percent (instead of two-thirds) of their sentence.  This is not an unreasonable proposal, and recent history demonstrates that this is indeed safe to do.

During the pandemic, under the CARES Act, Attorney General William Barr authorized BOP to move people to home confinement using a set of criteria that included serving at least 50 percent of their sentence.  Only 22 of the 13,204 individuals serving their sentence on home confinement since March 2020 were rearrested for a new offense.  That is just 0.17 percent, and most of those offenses were for drug-related or other minor crimes.  Many of those placed in home confinement were not elderly, so one would expect the rate of elderly recidivism to be even lower. Expanding the elderly pilot to offenders who served 50 percent of their time would save even more taxpayer dollars without creating more risk to society.

"Fact-Finder Choice in Felony Courts"

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

Scholarship in criminal adjudication is preoccupied with plea-bargaining and jury trials, but has largely ignored bench trials.  Yet bench trials occur, and not just in misdemeanor cases.  In some jurisdictions, they are a mainstay of felony adjudication.  This Article offers the first systematic collection and reporting of bench trial prevalence in felony cases across the nation’s largest jurisdictions, and the first qualitative study of the factors influencing jury trial waiver.  It reveals bench trial prevalence to be highly variable across jurisdictions, including those within the same state.

Qualitative study of five jurisdictions with varying bench trial prevalence shows what underlies that variability: ingrained institutional structures of fact-finder choice produced through the repeated interactions and interdependencies of the courthouse’s community of professionals (judges, prosecutors, and defense attorneys). Though the jury trial right rests, in theory, with the defendant, these institutional structures shape the degree of defense agency in exercising it.  This study illuminates the jury trial right’s meaning on the ground, reveals the influential and under-noticed role of trial judges in a pivotal defense decision, and identifies questions for future research. More broadly, it offers a new vantage point for perennial inquiries in criminal law and procedure: what confers power in the criminal process, and how is power distributed?

Prison Policy Initiative provide updated data on "incarceration stats by race, ethnicity, and gender" in all states

Prison Policy Initiative has this new briefing by Leah Wang fully titled "Updated data and charts: Incarceration stats by race, ethnicity, and gender for all 50 states and D.C.: New data visualizations and updated tables show the national landscape of persistent racial disparity in state prisons and local jails."  here is how the briefing begins (with links from the original):

The best and latest criminal legal system data are often scattered across different government agencies, in incompatible formats, and difficult to compare.  To make the most useful information more accessible, we make the underlying data for our timely reports and briefings available in our Data Toolbox, and create state-specific graphics on our comprehensive State Profiles pages.  Today, we’ve added a rich new series of resources for our users of our work:

First, we now have a downloadable spreadsheet of the most recently available incarceration data for people in state prisons and in local jails, by race and ethnicity and by sex, for all 50 states and D.C.  Unlike other datasets, ours provides apples-to-apples state comparisons in three formats (counts, rates, and percentages): We’ve done the math to standardize incompatible measurements found in the various original data sources.

Second, we’ve updated over 100 of the key graphics on our State Profiles pages showing prison and jail incarceration rates by race and ethnicity, and how the racial composition of each state’s prisons and jails compare to the total state population.

Rounding up some recent reads on the politics of crime and punishment before second GOP debate

Tonight brings the second official GOP Prez candidate debate for the 2024 election, and perhaps because this debate is in California we might hear a little more discussion of crime and punishment issues.   Former Prez Trump has again deciding not to show up for this debate, but I continue to hope we might get a question focused on his signature criminal justice reform achievement, the First Step Act (such as the one I set forth in this prior post).  Though I doubt any crime and punishment issues will get all that much attention tonight (save perhaps immigration), I noticed a number of notable recent press pieces and commentaries about various aspects of the politics of crime and punishment these days:

From The Hill, "Progressive purity on crime is coming at the expense of public safety"

From the New York Times, "The Libertarian vs. Conservative Impulses in G.O.P. Policy on Crime"

From the Sacramento Bee, "Why do Democrats in blue California struggle to reform prisons, sentencing and police?"

From USA Today, "On criminal justice, don't just focus on bad news. We ignore progress at our peril."

From the Vera Institute of Justice, "Polling Shows Voters Prefer Crime Prevention Over Punishment"

From the Wall Street Journal, "Mayor Eric Johnson: America’s Cities Need Republicans, and I’m Becoming One"

I sincerely believe that there are lots of serious criminal justice issues that would merit lots of serious discussion and debate through the 2024 campaign.  I am not expecting elevated discussion on these topics during a candidate debate anytime soon, but I will keep rooting for it.

Some prior related posts:

• Florida Gov DeSantis reportedly gearing up to attack former Prez Trump for his support of FIRST STEP Act
• New GOP Prez candidate DeSantis pledges to repeal FIRST STEP Act 
• Interesting criminal justice news and notes from the GOP campaign trail
• "The First Step Act is a conservative, constructive approach to strengthening public safety"
• Canvassing GOP discussion and perspectives on criminal justice reform in run up to 2024
• Will there be any interesting or surprising crime and punishment discussion at tonight's first GOP debate?
• Wouldn't a GOP Prez candidate debate focused just on crime and criminal justice issues be worthwhile?

Notable new SCOTUS accounting of stays in capital cases over the last decade

The Supreme Court does not start hear oral arguments to officially start its new Term until next Monday, but it does have its "long conference" scheduled for today and Bloomberg Law has this interesting new piece for capital case watchers.   The piece is headlined "Death Row Inmates Find Fewer Paths to Supreme Court Reprieves," it is is worth a full read. Here are excerpts:

Richard Glossip has had his last meal three times. It may be four if the US Supreme Court doesn’t agree at its private conference Tuesday to hear the Oklahoma death row inmate’s latest appeal.

Glossip’s execution dates have been blocked nine times, most recently by the high court in May, since he was convicted in 1998 of hiring a man to kill the owner of the motel he managed.  But his case is unusual: only one other inmate has had an execution put on hold since Justice Ruth Bader Ginsburg died in September 2020, giving President Donald Trump his third appointment to cement a 6-3 conservative majority on the court.

In that time, the justices have voted nine times to let a death sentence blocked by a lower court be carried out, according to Stephen Vladeck, a University of Texas at Austin School of Law professor, who’s been tracking emergency requests to the Supreme Court since 2019.  “There’s a good bet they vacate the death sentence in Glossip, but that’s not going to be a bellwether for anything,” Vladeck said.  “You can count on one finger the number of cases in the last few years where the state has joined the prisoner in urging the court to step in.”

Bloomberg Law, in one of the first attempts to identify the outcomes of all emergency requests to stay executions, identified more than 270 in its dockets database since Jan. 1, 2013.  The justices have agreed to block an execution 11 times, according to cases identified in Bloomberg Law’s docketing system and in reporting.  And of 21 emergency requests to vacate a stay put in place by a lower court that Bloomberg Law identified, 18 were granted. That shows the court is much more likely to let executions proceed than to put them on hold.

Those findings are almost certainly undercounted due to the variable nature of death penalty court filings.  The Supreme Court doesn’t require emergency applications to be labeled as a capital case, and it doesn’t have a complete and searchable list of all historical death penalty cases.  Groups like the Death Penalty Information Center track executions but they don’t track all appeals.

The only stay of execution granted since Ginsburg’s death, other than Glossip’s, was in 2021, when the court blocked Texas from putting John Henry Ramirez to death while it considered whether he could keep fighting the state’s refusal to let his pastor pray out loud and touch him during his execution.  Ramirez ultimately won when the court backed his religious requests in a 8-1 decision. Ramirez was eventually executed in 2022 with his religious adviser in the chamber....

The court’s conservative wing has been skeptical of emergency requests in death row appeals and has accused inmates of trying to delay their execution.  When the court ruled in Bucklew v. Precythe in 2019 that the Eighth Amendment’s ban on cruel and unusual punishment doesn’t guarantee prisoners a painless death, Justice Neil Gorsuch warned courts to watch out for such attempts.  “Last-minute stays should be the extreme exception, not the norm,” he said, adding that the last-minute nature of an application that could have been brought earlier or is an applicant’s attempt at manipulation “may be grounds for denial of a stay.”

Vladeck said that blesses the practice of deciding emergency applications without resolving a prisoner’s claims, something the court’s liberal wing has often pointed to as a reason for the court to put on the brakes....

Zack Smith, a legal fellow and manager of The Heritage Foundation’s Supreme Court and Appellate Advocacy Program, pushed back on the notion that the justices are denying cases without reviewing prisoners’ claims.  Death row inmates often challenge their convictions multiple ways in both state and federal courts, he said.

“It’s important to understand how much process is involved in any of these death penalty cases,” he said. “Some take multiple trips to the Supreme Court.”  At some point, after several layers of collateral review in cases in which the individual has either pleaded guilty or been found guilty by a jury of their peers, Smith said “a judgment has to be final.”

"Forecasting US Crime Rates and the Impact of Reductions in Imprisonment: 1960-2025"

The title of this post is the title of this notable new report authored by James Austin and Richard Rosenfeld for the Harry Frank Guggenheim Foundation.  Here is how the 25-page report is introduced on the HFG Foundation website:

In the latest of a series of HFG reports forecasting crime trends at the US national level and for selective states and (forthcoming) cities, James Austin and Richard Rosenfeld again created statistical models that retroactively “predicted” property and violent crime rates for past years with great accuracy and then used these models to forecast crime trends in the near future.  This report concerns national trends, updating the authors’ national-level HFG report released in 2020, before the social and economic disruptions of the pandemic and civil unrest over police violence interrupted a 25-year declining or flat trend in violent crime.

Austin and Rosenfeld forecast very modest increases in violent crime and then a flattening trend by 2025 as well as a continuation of the longstanding decline in property crime. They also use their forecasting models to project the effect of augmenting the nation’s declining rate of imprisonment by an additional 20%. Such a policy decision, they conclude, would not lead to significantly higher crime rates.

New US Sentencing Commission report covers "Federal Escape Offenses"

The US Sentencing Commission this morning released this new 30+-page report titled simply "Federal Escape Offenses."  This USSC webpage provides a summary and key findings, and here and highlights from the highlights:

This new publication expands upon the Commission’s previous research on federal escape offenses. In this report, the Commission combines data it regularly collects with data from a special coding project to provide a deeper understanding of escape offenses and the individuals who commit those crimes.  The report provides the characteristics of individuals who commit escape offenses, then chronologically examines their criminal histories before the instant offense through their alleged criminal behavior while on escape status. Next it provides information on their subsequent sentencing.  Finally, this report examines their criminal behavior after being released into the community by the recidivism rates of a cohort of individuals released from federal custody in 2010.

• Escape offenses accounted for less than one percent (0.4%) of all federal offenses between fiscal years 2017 and 2021.

• Individuals sentenced for escape offenses had extensive and serious criminal histories....

• Most federal escapes were from non-secure custody. The majority (89.0%) of individuals escaped from a Residential Reentry Center (i.e., a halfway house)....

• Nearly all (99.2%) individuals sentenced for an escape offense received a sentence of imprisonment. The average term of imprisonment was 12 months.

• Nearly two-thirds (65.0%) of individuals sentenced for an escape offense were sentenced within the guideline range for their escape crime, compared to 40.2 percent of all other federally sentenced U.S. citizens.

• The majority (85.7%) of individuals sentenced for an escape offense and released in 2010 were rearrested during an eight-year follow-up period, which was higher than individuals sentenced for any other type of federal offense.  By comparison, one-half (49.2%) of other individuals released in 2010 were rearrested during the same time period.

  • Individuals sentenced for escape offenses were rearrested sooner after release compared to other sentenced individuals. Their median time to rearrest was ten months, compared to 19 months for the remaining 2010 cohort.

"Moral Judgments and Knowledge about Felony Murder in Colorado: An Empirical Study"

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

With funds provided by a Hughes Pilot grant, I conducted a survey of 523 Colorado residents to determine their knowledge of and moral attitudes towards the felony murder rule.  The survey showed that only a very small fraction of the participants knew that unintended killings in the course of predicate felonies was murder punishable at the time by life without the possibility of parole.  Similarly, only a very small fraction of survey participants believed that persons who committed unintended killings in the course of predicate felonies deserved a murder conviction or sentence of mandatory life without the possibility of parole.  Rather, the mean sentence that survey participants considered just for felony murder was just over six years in prison.  These results substantially undercut the two main justifications given for felony murder, namely deterrence and retribution.

As summer ends, biggest US cities all still showing significant homicide declines

Summer is now officially over, and I am pleased to see that homicide data for 2023 remains encouraging.  As readers may recall from some of my prior posts, I have been flagging AH Datalytics' collection of homicide data from police reports in nearly 100 big cities to note that, after significant increases in homicides throughout the US in 2020 and 2021, homicide declines in 2022 were continuing into the first half of 2023.  Of course, homicide declines for 2022 followed particularly high homicide rates in many locales in 2021, and we still have a way to go to get back to pre-pandemic homicide levels. Still, I continue to find the nationwide city homicide data to be encouraging, and now we have this data for almost three quarters of 2023.

Specifically, As we enter Fall 2023, according to this AH Datalytics webpage, there is now over a 12% cumulative decline in murders across the nation's largest cities.  And, as I have noted in some prior posts, the news is especially encouraging if we look at updated police reports showing 2023 homicide trends in our very biggest US cities (by population):

Chicago homicides down 14% in 2022, and down another 12% over the nine months of 2023

Houston homicides down 9% in 2022, and down another 20% over the eight months of 2023

Los Angeles homicides down 5% in 2022, and down another 25% over nine months of 2023

New York City homicides down 11% in 2022, and down another 11% over nine months of 2023

Philadelphia homicides down 8% in 2022, and down another 19% over nine months of 2023

As I have said before, these homicide data from cities are likely not fully representative of what may be going on with homicides nationwide, and homicide trends always seem to be unpredictable and data can change in lots of ways in coming months.  Still, the latest nationwide homicide data from the AH Datalytics webpage continue to reinforce my hope that the surging number of homicides in just about every part of the US through 2020 and 2021 were mostly a pandemic era phenomenon and that homicide rates may be trending back toward pre-pandemic norms. 

Still, there is clearly a very long way to go before we return to the historically low homicide (and overall crime) rates of the early 2010s.  Indeed, the recent BJS report (discussed here) delivered some sobering news about (non-homicide) violent victimization in 2022, although the Council of Criminal Justice (discussed here) had more encouraging news on violent crime in 2022 based on different metrics.  I am hoping that encouraging crime trends are real and that they persist, but time will tell.

Investigations of various prisons and jails reveal various unsettling stories

Recent days have brought a number of notable lengthy press investigations focused on a number of problems in a number of prisons and jails:

From the Atlanta Journal-Constitution, "Hundreds of GA prison employees had a lucrative side hustle: They aided prisoners’ criminal schemes"

From the Kansas City Star, "Broken Government: Why are hundreds of Missourians stuck in jail, not treated for mental health issues?"

From NPR, "1 in 4 inmate deaths happens in the same federal prison. Why?"

UPDATE:  A bit more web surfing brought a few more notable recent pieces in this genre:

From the Anchorage Daily News, "‘Like a nursing home’: The realities of Alaska’s aging inmate population; More people are living out their final years in Alaska prisons — testing the balance between prison as punishment for serious crimes and the expensive realities of caring for infirm inmates."

From The Guardian, "US prison labor is cruel and pointless legalized slavery. I know first-hand"

From Set for Sentencing (podcast), "Bureau of Prisons (BOP) Means 'Backwards on Purpose'"

Spotlighting disconcerting comments after a disconcerting crime

A regular reader suggest that I post this recent New York Post article headlined "Vegas teen told cops ‘I’ll be out in 30 days’ after he was nabbed in killing of retired police chief in hit-and-run: report."  The reader suggested this piece shows the harms of a “slap on the wrist” as sentencing policy because if "the consequences for improper actions are not significant enough, you get more of those actions." Here are excerpts:

The teen driver who allegedly mowed down a retired police chief in a fatal hit-and-run told Las Vegas police he would be back on the streets in under a month, according to a report.

Jesus Ayala is accused of driving a stolen Hyundai Elantra on Aug. 14 along with Jzamir Keys, 16, and deliberately crashing into and killing Andreas “Andy” Probst, 64, who had been riding his bike, a disturbing video showed.

Ayala, who just turned 18, was arrested hours after Probst was killed and told the police while in custody that he wouldn’t be locked up for long.

“You think this juvenile [expletive] is gonna do some [expletive]? I’ll be out in 30 days, I’ll bet you,” Ayala told the cops, according to KLAS. “It’s just ah, [expletive] ah, hit-and-run — slap on the wrist.”...

Ayala is being held at Clark County Detention Center without bail and was hit with 18 charges including murder, attempted murder and grand larceny. Ayala and Keys made their first appearances Thursday in Las Vegas Justice Court, where the teens face charges as adults....

The video allegedly recorded by Keys in August captured the moment the stolen car plowed into the back of Probst while the two teens laughed, saying, “Hit his ass.” Probst was tossed over the hood of the vehicle and left to die.

His widow, Crystal Probst, and daughter, Taylor Probst, were in court for Thursday’s hearing but left immediately afterward without speaking with reporters. Taylor Probst said on Tuesday the attack was a senseless killing caused by the effect “social media has on our youth” — not because of her father’s 35 years in law enforcement....

The death penalty will not be sought in either case because under Nevada law, they face 20 years to life in prison if they are convicted before they turn 18 years old.

The two teens are accused of going on a crime spree throughout the day on Aug. 14, as they allegedly hit a 72-year-old bicyclist while in a stolen Hyundai sedan, drove away, crashed into a Toyota Corolla and again drove away before striking Probst. They later apparently stole two more cars before crashing them into each other.

Many notable new reads at Inquest website

It has been some months since I blogged about the website Inquest, which describes itself as "a forum for advancing bold ideas to end mass incarceration in the United States."  Though I have not flagged the site in a while, regular readers likely recall prior posts spotlighting many great essays, and here is another quartet of notable new pieces:

"Exceptional Punishments: No one should be made to give up their rights in exchange for being spared from prison" by Kate Weisburd

"Our Evidence-Based Obsession: Better research won’t get us out of our crisis of mass incarceration" by Jonathan Ben Menachem

"Envisioning Futures: The art of knowing what we’re confronting and revealing who is being made invisible by the carceral state" by Maria Gaspar & Gina Dent

"Chained by Debt: Erasing court costs and fines is a relatively small change that would have an outsize impact on those harmed by mass incarceration" by Shivani Nishar & Sarah Martino

US Sentencing Commission releases latest detailed "Compassionate Release Data Report" (with first data since proposed guideline amendment)

I just noticed that the US Sentencing Commission yesterday published this updated compassionate release data report, and this latest  one provides data on sentence reduction motions through June 30, 2023.  As I have noted with a prior data report, there are lots and lots of notable data points about how and where these motions are brought and resolved throughout this data report.  Interestingly, though some cumulative data is provided at the start of this data report, the vast majority of the report just provides particulars for grants and denials of compassion release for the period from October 1, 2022, through June 30, 2023 (which comprises the first three quarters of Fiscal Year 2023 for the USSC).

Critically, near the middle of Fiscal Year 2023, the US Sentencing Commission officially voted to amend the so-called compassionate release guideline, formally "§ 1B1.13 - Reduction in Term of Imprisonment under 18 U.S.C § 3582(c)(1)(A) (policy statement)."  I blogged here and here about the Commission's promulgation of its amendment of § 1B1.13 in early April 2023.  The amendment was formally submitted to Congress in late April 2023, but does not become law until November 1, 2023.  Nevertheless, this data run suggests there was a small spike in the filing and granting of sentence reduction motions in May and June 2023.  This may just be a bit of statistical noise, though I am inclined to guess that the Commission's official vote on its new guideline may have contributed somewhat to the small uptick in the number of sentence reduction motions filed and granted.

"Fixing Disparate Prosecution"

The title of this post is the title of this notable new article authored by Shima Baradaran Baughman and Jensen Lillquist now available via SSRN. Here is its abstract

America’s system of public prosecution is broken. Prosecutors who charge harshly or disparately are shielded from any consequences or recourse and defendants are left with few options. This asymmetry in power results in prosecutors singlehandedly maintaining mass incarceration in the United States and leads to some U.S. states incarcerating more people per year than entire countries. Prosecutors in the United States are permitted to charge with little supervision or guidance and are told to follow the law and “seek justice.” Many choose to charge the highest number of crimes possible, while others choose to exercise restraint and label themselves as “progressives.” But there is no solicitude for individuals who are subject to the whims of an individual prosecutor who might decide to throw the book at an individual rather than exercise mercy and drop charges for a minor first-time offense.

Both normative and structural changes are needed.  But proposed normative changes — such as progressive prosecution or evidence-driven prosecution — rely on prosecutors themselves to change and lack any enforcement mechanism. Likewise, proposed structural reforms are often too unrealistic to seriously contemplate. While we support these reforms rhetorically, this Article proposes a much simpler, potentially more pragmatic reform. Each defendant should be legislatively provided with a private right of action against disparate prosecution. In other words, a defendant believing she has been charged or sentenced unfairly or out of step with others in a particular jurisdiction could challenge the prosecutorial action and shift the burden to the prosecutor to justify charges. This straightforward proposal could shift the balance of power and create the right incentives to force prosecutors to check their decisions, and in turn result in less draconian charging throughout the United States.

Oklahoma completes its third execution of 2023 (which is 18th in US this year)

As reported in this local article, "Convicted murderer Anthony Sanchez, 44, was put to death by lethal injection Thursday at the Oklahoma State Penitentiary in McAlester. Prison officials said the execution occurred at 10:19 a.m." Here is more:

Sanchez was convicted in 2006 of first-degree murder in the shooting death of Juli Busken, a 21-year-old dance student who had completed her courses at OU and was preparing to return to her parents' home in Arkansas and enroll in graduate school. The U.S. Supreme Court denied a last-minute petition to pause Sanchez's execution.

Authorities said Busken was raped and shot in the head after being abducted from a Norman apartment complex in 1996. Her body was later found at Lake Stanley Draper southeast of Oklahoma City.

Under state law, Sanchez had to give up a sample of his DNA when he went to prison in Oklahoma in 2002 for second-degree burglary. A DNA profile was eventually made from semen stains found on Busken's clothing. In 2004, the Oklahoma State Bureau of Investigation got a "hit" on the DNA that linked Sanchez to the Busken case.

Attorney General Gentner Drummond and his assistants told U.S. District Judge Joe Heaton in a legal brief last week that the odds that the match was a mistake were 1 in 200 trillion Caucasians, 1 in 20 quadrillion African Americans and 1 in 94 trillion Southwest Hispanics.... 'I am 100% innocent,' Anthony Sanchez wrote in letter to Oklahoma Gov. Kevin Stitt

Sanchez maintained his innocence, but he waived his clemency hearing before the Oklahoma Pardon and Parole Board. In April, the Oklahoma Court of Criminal Appeals ruled 5-0 against Sanchez, who, in a new challenge, claimed his father confessed to Busken’s murder before committing suicide last year. The OSBI concluded the father was not the killer after conducting more DNA tests in February. The OSBI did the testing after getting a sample of the father's blood from the medical examiner's office, which had investigated his death.

I note in the title of this post that this execution was the 18th in the US so far in 2023, which ties the total number of US execution for the full year of 2022. With six more serious execution dates listed by DPIC here, it seems quite possible that 2023 will have the most executions in the US since 2018.  And if a few more execution dates get added, it is still possible that there could end up more executions in 2023 than any year since 2014.

US Sentencing Commission releases FY 2023 third quarter sentencing data (and the stories of crack sentencing continues to evolve)

Earlier this week, the US Sentencing Commission released on its website its latest quarterly data report which is labelled "3rd Quarter Release, Preliminary Fiscal Year 2023 Data Through June 30, 2023."  These new data provide the latest accounting of how federal sentencing is working toward a new normal in the wake of a COVID pandemic and related evolutions in the federal criminal justice system.  For example, as reflected in Figure 2, while the three quarters prior to the pandemic averaged roughly 20,000 federal sentencings per quarter, the three quarters closing out 2020 had only between about 12,000 and 13,000 cases sentenced each quarter.  Calendar year 2021 had a partial rebounding of total cases sentenced, but the "new normal" seems to be between 15,000 and 17,000 total federal cases sentenced each quarter (and Figure 2 shows that a decline in immigration cases accounts for the decrease in overall cases sentenced).

As I have noted before, the other big COVID era trend was a historically large number of below-guideline variances being granted, and this trend has now extended over the last 12 quarters of official USSC data (as detailed in Figures 3 and 4).  I suspect this trend is mostly a facet of the different caseload and case mixes.  In the most recent quarters, the official data show that only around 42.5% of all federal sentences are imposed "Within Guideline Range."  This number continues the modern reality that, since the pandemic hit, significantly more federal sentences are being imposed outside the guideline range (for a wide array of reasons) than are being imposed inside the calculated range.

As I have also flagged before, for anyone who has long followed federal sentencing data and debates, the USSC's latest data on drug sentencing reflected in Figures 11 and 12 should be especially striking.  These figures show, for the last three quarters, that over 47% of all federal drug sentencings involved methamphetamine, which is more of the drug sentencing caseload than powder and crack cocaine, heroin and fentanyl combined.  Moreover, the average sentence for all those meth cases is well over eight years in prison (and has been rising in recent quarters), whereas the average for all the other drug cases is around six years or lower.  In other words, the federal "war on drugs" these days is much more focused upon, and imposes longer prison sentences upon, the meth defendants than anyone else. 

Especially notable is how few crack cases are being sentenced and how relatively low average crack sentences now are.  Back in FY 2008 (a little before the sentencing reforms of the Fair Sentencing Act), the USSC data showed that over 6000 crack defendants were been federally sentenced that year with an average sentence approaching 10 years in prison.  But now, with only 4.6% of the federal drug sentencing caseload involving crack cases, it seems likely that fewer than 1000 crack defendants will be sentenced in federal court in FY 2023 and in the latest quarter the average crack sentence was well under 5 years.  In other words, the crack caseload has gone down by more than 80% and the average sentence has gone done by more than 50%.  Remarkable.

"Toward a More Comprehensive Plea Bargaining Regulatory Regime"

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

America’s plea-bargaining system is famously informal.  While there is a smattering of state and federal regulation of guilty pleas, the practice of plea-bargaining itself remains almost entirely untouched by law.  Because plea bargaining is the mechanism by which the vast majority of criminal convictions are secured — upwards of 95% by most estimates — this means that almost all criminal convictions are the product of an essentially unregulated, and in many ways entirely lawless, process.  There is an increasing awareness of the harmful effects of an unregulated plea bargaining system and the ways that this lack of regulation enables highly coercive practices that effectively deprive most criminal defendants of their constitutional right to trial.  The corrosive effect of plea-bargaining’s dominance is unmistakable and the continuing lack of meaningful regulation of it threatens the basic integrity of the criminal legal system.

This Article argues that it is imperative that policymakers take this threat seriously and urges them to take steps to impose real regulation on the plea-bargaining practice.  The Article identifies several reforms that might be taken.  These include requiring all plea offers to be in writing and filed in court, standardizing the timing and content of plea agreements, limiting the kinds of rights that criminal defendants can be required to waive in order to obtain a plea agreement, and shifting sentencing hearings from post-trial to pre-trial to ensure that defendants are aware of the consequences of their plea decisions.  The filing requirement would also facilitate creation of meaningful mechanisms to regulate the magnitude of the sentencing differential between plea and trial sentences.  This latter goal is critical to ameliorate the highly coercive aspects of present plea bargain practice, since more than any other factor it is the threat of heavy trial penalties that undermine the value of a defendant’s constitutional right to trial.  Implementation of these reforms would go a long way toward bringing much needed procedural formality to the informal practice of plea bargaining and would help establish a more rational regulatory system of plea bargaining practice.  It is also hoped that these reforms might help reverse the longstanding trend toward ever more vanishing criminal trials.

Notable debate among Sixth Circuit judges as court turns down en banc review of "resentencing retroactivity" after FIRST STEP Act

Hard-core sentencing fans may want to check out the opinions authored by a trio of Sixth Circuit judges concurring and dissenting from the denial of en banc review US v. Carpenter, in No. 22-1198 (6th Cir. Sept. 18, 2023) (available here) (en banc review denial).  In this case, the circuit panel held earlier this year that the defendant could not benefit at a resentencing from the FIRST STEP Act's reduction in the severity of stacked 924(c) gun mandatory minimums because he original sentencing pre-dated passage of the FSA.   

A petition for rehearing en banc followed (and I noticed SCOTUS advocate of great renown, Jeff Fisher, listed as one of the lawyers on the petiton).  The petition then was circulated to the full court, but less than a majority of the judges voted in favor of rehearing en banc.  Judge Kethledge (joined by a few judges) authored a concurrence in the denial of rehearing en banc.  In that opinion, he explains why he thinks the panel reached the right result under applicable law even though "Carpenter’s sentence was extreme by any measure" and even though "the sentence here would never have been imposed" absent the old pre-FSA mandatory minimums.

Judge Griffin (joined by a few judges) authored a substantive dissent which helps explain the particulars in this opening paragraph:

This appeal arises under the First Step Act, which amended several criminal statutes and reduced mandatory-minimum sentences for certain federal crimes.  For defendant Timothy Carpenter, the Act, if applied, “would reduce his mandatory-minimum sentence on his [18 U.S.C.] § 924(c) convictions by 80 years (from 105 years to 25).” United States v. Carpenter, 2023 WL 3200321, at *1 (6th Cir. May 2, 2023).  But despite the Act’s retroactivity provision extending its benefits to defendants awaiting sentencing, and despite the vacatur of Carpenter’s earlier, invalid, pre-Act sentence, the panel here — following circuit precedent — concluded Carpenter must now be resentenced under the old version of the statute with its outdated sentencing scheme. Id. at *2 (citing United States v. Jackson, 995 F.3d 522, 524–25 (6th Cir. 2021)).  In my view, Jackson was wrongly decided, and this case involves a question of exceptional importance.  Accordingly, I respectfully dissent from the denial of the petition for rehearing en banc.

Judge Bloomekatz (joined by a few judges) dissents to add even more context that, perhaps, is an effort to get at least one Justice's attention. Here is her closing substantive paragraph:

The real human costs that this esoteric legal issue presents also should not be overlooked.  Because our circuit has split from every other to reach this issue, defendants in Kentucky, Michigan, Ohio, and Tennessee will often have to serve decades longer sentences than those in most of the other states.  Carpenter proves this point.  His sentence is eighty years longer than it would be if he had been resentenced in the seventeen states that comprise the Third, Fourth, and Ninth Circuits. See Dissent at 7.   The resulting sentencing disparity, along with the other reasons I have outlined, should give us pause enough to consider the decision as a full court.  Indeed, the circuit split, the federal government’s position, the dissent from then-Judge Barrett in Uriate, and the dueling opinions on this en banc petition underscore that the scope of the retroactivity provision is far from clear.  See United States v. Uriate, 975 F.3d 596, 606–09 (7th Cir. 2020) (en banc) (Barrett, J., dissenting).

Couple of final notes of possible interest: (1) I am pretty sure the Timothy Carpenter of this case is the same guy who got the Supreme Court to review his Fourth Amendment claim back in 2018 in Carpenter v. US; (2) I am pretty sure this Timothy Carpenter has already served 10+ year in prisons, and so may soon be eligible for a reduction in sentence under the "unusually long sentences" criteria in the US Sentencing Commission's proposed new “Compassionate Release” policy statement.