Monday, October 26, 2020

US Sentencing Commission releases data revealing COVID's impact on federal sentencings

Regular readers know I have been complaining for many months about the general failure of the US Sentencing Commission to address or release data concerning the COVID state of federal sentencing (example here).  But as of today, I cannot complain quite so much because the US Sentencing Commission has just released here its "3rd Quarter ... Preliminary Fiscal Year 2020 Data Through June 30, 2020."

These new data provide the first official accounting of federal sentencing outcomes for the period from October 1, 2019 through June 20, 2020, and it is clear from these data that COVID concerns dramatically reduced the number of federal sentences imposed in the quarter comprised of the months of April, May and June 2020.  Specifically, as reflected in Figure 2, it appears that the previous three quarters averaged roughly 20,000 federal sentencings, whereas the quarter ending in June 2020 saw only around 12,000 federal sentences. This is still a lot of sentencings, but seemingly the lowest quarterly number in decades.

In addition, as reflected in Figure 5, it appears that, along with total number of imposed sentences decreasing, so too did the average sentence imposed decrease significantly during the quarter ending in June 2020.  Specifically, it appears that the previous quarters had federal sentences averaging roughly 38 months, whereas the quarter ending in June 2020 saw federal sentences averaging roughly 30 months.  This leads me speculate that the sentencings that went forward during the COVID period may have generally been the less serious cases and/or that many federal judges were somewhat less inclined to impose longer federal prison terms during the COVID era.

In sum, these latest USSC data show that the number of sentences imposed in the first COVID quarter (April to June 2020) dropped about 40% and the length of the sentences imposed in this period drop over 20%.  Very interesting, and now I am even more eager for the next data run and for even more intricate reporting and analysis from the US Sentencing Commission.

October 26, 2020 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Impact of the coronavirus on criminal justice | Permalink | Comments (0)

Court filing by California Gov seeks tougher rules for state’s death penalty

This local article, headlined "Newsom, California district attorneys seek tighter standards for application of death penalty," reports on a notable new court filing by Governor of California. Here are the details:

Gov. Gavin Newsom, who has already declared a moratorium on executions in California, went a step further Monday with an unprecedented court filing that asserted the state’s death penalty law is applied in a racist manner against African Americans.

Newsom’s state Supreme Court filing did not call for abolition of the death penalty — an option narrowly rejected by California’s voters in 2012 and 2016 — but argued that a jury imposing a death sentence should be required to find beyond a reasonable doubt that it was the proper punishment, rather than life in prison without parole.

The governor also said jurors should be allowed to consider factors favoring the death penalty, such as other violent acts by the defendant, only if they agreed unanimously that those events had occurred. Those standards would make it more difficult for prosecutors to persuade jurors to return a death sentence....

“Since its inception, the American death penalty has been disproportionately applied — first, to enslaved Africans and African Americans, and, later to free Black people. With this filing, we make clear that all Californians deserve the same right to a jury trial that is fair, and that it is a matter of life and death.”

The brief was the first ever filed by a California governor challenging the state’s application of the death penalty and calling for restrictions. A similar brief was submitted in the same case Monday by four district attorneys — Chesa Boudin of San Francisco, Diana Becton of Contra Costa County, Jeffrey Rosen of Santa Clara County and Tori Verber Salazar of San Joaquin County — and two former district attorneys, George Gascón of San Francisco and Gil Garcetti of Los Angeles County.

The six have varying views on capital punishment, but said in their filing that they wanted to “ensure that the death sentence is chosen (if at all) for only the worst offenders and offenses.”

Boudin, who like every San Francisco district attorney since 1995 has vowed not to seek the death penalty, said, “California’s death penalty is not only inconsistent with the values of a humane society, but is administered in a racially biased way.” Gascón, San Francisco’s chief prosecutor from 2011 to 2019, is running for district attorney in Los Angeles.

Newsom issued an executive order in March 2019, his third month in office, suspending executions in California, which has not executed a prisoner since January 2006.  He said at the time that the death penalty “is inconsistent with our bedrock values and strikes at the very heart of what it means to be a Californian.”

The state has 711 inmates on Death Row — more than one-third of them Black, Newsom said in his court filing. African Americans are also much more likely than others to be arrested and searched by police and to be the victims of police violence, the governor’s lawyers told the court.

The moratorium on executions has not stopped most county prosecutors from seeking death sentences, and has not stopped Attorney General Xavier Becerra’s office from defending those sentences before the state’s high court.

Monday’s filings were submitted in the case of Donte McDaniel, sentenced to death for fatally shooting two people in Los Angeles in 2004 in what prosecutors described as murders related to gangs and drugs.

In preparing for a hearing in McDaniel’s case, the state Supreme Court asked lawyers whether the California law should be interpreted to require jurors to decide beyond a reasonable doubt — the same standard required for convictions — whether death was the proper punishment.  The court also asked whether the law prohibits jurors from considering so-called aggravating factors, like a defendant’s past violent acts, unless they agree on those facts unanimously.

Newsom’s brief and the filing by the current and former prosecutors answered both questions affirmatively.  Requiring jurors to “unanimously determine beyond a reasonable doubt factually disputed aggravating evidence and the ultimate penalty verdict” are essential to preserving “the full protections of the jury right in capital sentencing,” said the governor’s lawyers, Dean Erwin Chemerinsky and Prof. Elisabeth Semel of the UC Berkeley Law School.

October 26, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

"Populist Prosecutorial Nullification"

The title of this post is the title of this notable paper authored by Kerrel Murray and available via SSRN.  I flagged this paper in a long list when it first showed up earlier this year.  But with so much voting going on these days, I thought it now especially timely to note the paper again and reprint its abstract:

No one doubts that prosecutors may sometimes decline prosecution notwithstanding factual guilt.  Everyone expects prosecutors to prioritize enforcement based on resource limitation and, occasionally, to decline prosecution on a case-by-case basis when they deem justice requires it.  Recently, however, some state prosecutors have tested the boundaries of this power by asserting the right to refuse categorically to enforce certain state laws.  Examples include refusals to seek the death penalty and refusals to prosecute prostitution or recreational drug use.

There is thus a burgeoning need for a pertinent evaluative framework.  To answer that call, this Article offers the first extended analysis of the normative import of the locally elected status of the state prosecutors who make such pledges.  In so doing, it finds that local elections make all the difference.  There may well be something suspect about unilateral prosecutorial negation of democratically enacted law.  Yet there is something distinctly democratic, and thus justifiable, about an elected prosecutor who can claim popular sanction for the exact same act.

This Article first unspools a once-robust American tradition of localized, populist criminal-law non-enforcement, best seen in jury nullification.  It then applies democratic theory to construct a normative basis for reviving that tradition in the context of state prosecutors’ categorical non-enforcement.  These moves uncover a before-now unappreciated connection: at least where the prosecutor ties her categorical nullification to the polity’s electorally expressed will, she accomplishes wholesale what nullifying juries could once do retail.  Appreciating that relationship helps uncover a phenomenon best thought of as populist prosecutorial nullification.  Building upon that finding, I set out a novel framework for evaluation of state prosecutors’ categorical non-enforcement that is keyed to the concept of localized popular will.

October 26, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, October 25, 2020

Covering just some of many criminal justice reforms stories percolating in 2020 election

Every election is important for the fate and future of criminal justice reform, but every even-year Fall it is hard not to get caught up in the notion that this year's election is uniquely significant and consequential.  As I noted in this prior post, the discussion at the last Prez debate leads me to be (foolishly?) hopeful that we will see some follow up to the FIRST STEP Act or some other form of of federal criminal justice reform in the coming years no matter who prevails at the federal level.  But surely the scope and contents of possible federal reform will depend not only on who is in the White House and who is in charge in Congress, but also on what kinds of reforms move forward and prove successful at the state and local level.   

Because the FIRST STEP Act at the federal level was made possible in part by the political and practical successes at the state level, even those focused primarily on the federal system ought to keep a close eye on state and local criminal justice reform and election realities.  Helpfully, there is a lot of good press coverage on all these topics these days, and here is a sampling:   

Some National Perspectives:

From The Appeal, "Your Guide To 30 Sheriff And Prosecutor Elections That Could Challenge Mass Incarceration: These are key local elections where criminal justice reform is on the line next month."

From the Drug Enforcement and Policy Center, "Drug Reforms on the 2020 Ballot: A closer look at drug policy reform decisions voters will make during the 2020 election"

From Fox News, "Marijuana-legalization supporters tout economic benefits in new voter pitch: Advocates argue sales and excise taxes would help bail out states crushed by coronavirus"

From Reason: "On Criminal Justice, Trump and Biden Are Running Against Their Own Records: The progressive who helped usher in mass incarceration is running against the law and order conservative who let prisoners go free."

From Vox, "How 2020 voters could change the criminal justice system, in 6 ballot measures: Voters in several states have a chance to change the criminal justice system in 2020."

From Vox, "2020’s psychedelic drug ballot measures, explained: Oregon and Washington, DC, voters may relax their laws for psychedelic drugs."

 

Some State Specifics:

From the Denver Post, "Half of Colorado’s district attorneys will be replaced after election, setting scene for future of criminal justice reform"

From Governing, "California to Vote on What’s Next for Criminal Justice Reform: The state’s Proposition 20 would expand felonies which are ineligible for parole and collect DNA samples of misdemeanor offenders. Californians must decide if it assures public safety or is backward progress."

From The Oklahoman: "Five things to know about Oklahoma State Question 805"

From Vox, "Oregon’s ballot measure to decriminalize all drugs, explained: The ballot measure is trying to move the state from a criminal justice to a public health approach on drugs."

October 25, 2020 in Campaign 2020 and sentencing issues, Drug Offense Sentencing, Elections and sentencing issues in political debates, Marijuana Legalization in the States, Who Sentences | Permalink | Comments (2)

Final looks at Judge Amy Coney Barrett's criminal justice record before she starts to build a criminal justice record as a Justice

As I understand matters, the US Senate is poised to confirm Amy Coney Barrett as the next US Supreme Court Justice and the only confirmation question seems to be how many Senate votes she will get on Monday.  But, of course, the big jurisprudential question for sentencing fans is how might a Justice Barrett approach a range of criminal justice issues as an avowed originalist jurist.  The late Justice Scalia and current Justices Alito, Gorsuch, Kavanaugh and Thomas, and even Chief Justice Roberts, lay claim at least some times to being originalists, and yet their votes on a range of constitutional criminal justice issues can and do vary.  And, of course, the Supreme Court considers a host of non-constitutional criminal justice concerns as well.

I have covered some prior analyses of Judge Barrett's criminal justice record in prior posts that can be found linked below.  This week I saw a couple more, and the subheadlines of these pieces highlight that they are developing distinct accounts of what we might expect from a Justice Barrett:

From The Appeal, "Amy Coney Barrett’s Record On Criminal Justice Is ‘Deeply Troubling,’ Reform Advocates Say: In the midst of a national debate about changing the criminal legal system, Barrett is set to take a lifetime seat on the U.S. Supreme Court. Advocates see her addition as a potential setback to creating a more fair system."

From Washington Monthly, "The Criminal Justice of Amy Coney Barrett: The soon-to-be Supreme Court Justice has a more interesting record on prisons, prosecutors and a slew of justice issues than you might think."

The closing paragraph of this second piece provides a fitting final question as we anticipate a new era for SCOTUS with a new Justice:

Barrett has such a well-schooled intellect that all her opinions are intricately woven out of existing case law and statutory text, so — in the criminal justice arena, at least — she has not departed wildly from the web of precedent that confines her. She said more than once at her hearing that a judge is obliged to rule where the law takes her, which may violate her personal views.  But once she’s on the Supreme Court and freer to chart her course, then what?

Notably, we may not have to wait too long to get a glimpse of how a Justice Barrett might approach sentencing and broader criminal justice issues.  Assuming she is confirmed to the Court this week, she will be on the bench in time to hear, on November 3, oral argument in Borden v. US, No. 19-5410 (concerning ACCA application and mens rea matters), and Jones v. Mississippi, No. 18-1259 (concerning application of Miller's Eighth Amendment rules for juvenile LWOP).  And just weeks later, the Court will also hear oral argument, on November 30,  in Van Buren v. USNo. 19-783 (concerning reach of Computer Fraud and Abuse Act), and Edwards v. VannoyNo. 19-5410 (concerning whether the SCOTUS unanimous jury Ramos ruling applies retroactively). 

These criminal cases that a Justice Barrett will be considering in just her first few weeks on the Supreme Court present an array of challenging issues for committed textualists and originalists, especially because these cases implicate in various ways an array of past precedents that a committed textualist and originalist might not be so eager to follow.  Interesting times.

Prior related posts:

October 25, 2020 in Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, October 24, 2020

"What If Nothing Works? On Crime Licenses, Recidivism, and Quality of Life"

The title of this post is the title of this interesting new piece authored by Josh Bowers available via SSRN.  Here is its abstract:

We accept uncritically the “recidivist premium,” which is the notion that habitual offenders are particularly blameworthy and should be punished harshly.  In this article, I question that assumption and propose a radical alternative.  Consider the individual punished repeatedly for hopping subway turnstiles.  As convictions accumulate, sentences rise — to weeks and ultimately months in jail.  At some point, criminality comes to signal something other than the need for punishment.  It signals the presence of need.  Perhaps, the recidivist was compelled by economic or social circumstances.  Perhaps, he was internally compulsive or cognitively impaired. The precise problem matters less than the fact that there was one.  No rational actor of freewill would continue to recidivate in the face of such substantial and increasing sentences.  My claim is that, in these circumstances, it would be better to just stop punishing.

To that end, I offer a counterintuitive proposal, which is to provide “crime licenses” to recidivists.  But I limit this prescription model to only a collection of quality-of-life offenses, like drug possession, vagrancy, and prostitution.  My goals are at once narrow and broad.  I present the crime license as a modest opportunity to test bolder concepts like legalization, prison abolition, and defunding police.  I situate the provocative proposal within a school of social action called “radical pragmatism,” which teaches that radical structural change is achievable, incrementally.  I draw upon successful prescription-based, radical-pragmatic reforms, like international addiction-maintenance clinics, where habitual drug users receive free heroin in safe settings.  I endorse “harm reduction,” the governance philosophy that grounds those reforms.  And I imagine our system reoriented around harm reduction, with crime licenses as one pragmatic, experimental step in that direction.

October 24, 2020 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (2)

Friday, October 23, 2020

REMINDER Call for Papers: "Understanding Drug Sentencing and its Contributions to Mass Punishment"

6a00d83451574769e2026bde959014200c-320wiI said before that I was going to regularly remind folks of this recent call for papers relating to an exciting event I am excited to be involved in helping to plan, "Understanding Drug Sentencing and its Contributions to Mass Punishment."  So, here again is the full call, which is also available as a full pdf document at this link:

INTRODUCTION
Discussion of the “war on drugs” frequently fails to examine precisely how drug offenders are sentenced — and how they should be.  Drug sentencing practices are implicated in many fundamental criminal justice issues and concerns.  Research suggests incarcerating people for drug offenses has little impact on substance use rates or on crime rates more generally.  And, despite reports of comparable use rates, people of color are far more likely to be arrested and incarcerated for drug-related offenses than white counterparts.  Mandatory minimum sentencing statutes are applied commonly, but inconsistently, in drug cases and for persons with a criminal history that involves drug offenses.  And while states have created specialty courts to handle the cases of low-level drug offenders, the efficacy and appropriateness of the “drug court movement” has long been subject to debate.

Distinct state and federal realities complicate our understanding of the relationship between the drug war and punishment.  Nearly all federal drug defendants get sent to prison and nearly 50% of the federal prison population is comprised of drug offenders; relatively few state drug offenders are sent to prison and less than 20% of state prisoners are serving time on drug charges.  But data on arrests, jail populations, and community supervision highlight the continued, significant impact drug cases still have on state and local justice systems.  The role of drug criminalization and sentencing contributes to mass incarceration, yet mass punishment can look quite different depending on the criminal justice system(s) and the drugs.


ABOUT THE CALL
These issues and others related to drug sentencing will be part of a symposium jointly sponsored by the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law and the Academy for Justice at the Arizona State University Sandra Day O'Connor College of Law.  "Drug Sentencing and its Contributions to Mass Punishment," will take place on June 10–12, 2021, at The Ohio State University Moritz College of Law in Columbus, Ohio. As part of this symposium, we invite scholars to submit papers for inclusion in the workshop scheduled for June 12.  Accepted submissions will be paired with a discussant who will review and provide feedback on the paper during the workshop.  Each paper should reflect on some aspect of drug prosecutions and sentencing in the United States.  Participants should have a draft to discuss and circulate by May 17, 2021.  The papers will be gathered and published in a Spring 2022 symposium edition of the Ohio State Journal of Criminal Law, a peer-reviewed publication.  Participants should have a completed version to begin the publication process by August 15, 2021.  Final papers may range in length from 5,000 – 20,000 words.

Deadline for submission is November 1, 2020. Please submit a title and an abstract of no more than 300 words to Jana Hrdinová at hrdinova.1@osu.edu. Accepted scholars will be notified by December 1, 2020

October 23, 2020 in Drug Offense Sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (0)

"Framing Individualized Sentencing for Politics and the Constitution"

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

For decades, there was not much growth in the U.S. Supreme Court’s interpretation and application of the Eighth Amendment.  In recent years, though, the Court has expanded the Amendment to prohibit executing intellectually disabled and juvenile offenders, to ban capital punishment for all non-homicide offenses against individuals, and to prohibit life-without-parole for juveniles when that punishment was mandatorily imposed or imposed on non-homicide offenders.  With changing politics and a changing Court, any further expansion of Eighth Amendment protections will likely be difficult for years to come.  With the recent nomination of Amy Coney Barrett as the newest Supreme Court Justice, the Court is becoming more conservative.  Politics certainly influence law, even at the Supreme Court level, so future changes in politics even outside the Court could affect Eighth Amendment interpretations.  When making Eighth Amendment arguments to the Court, framing is important.

This Article suggests that, in this political landscape, there may be some hope for the expansion of the constitutional requirement of individualized sentencing.  While the Court has historically reserved this requirement for capital cases, its more recent cases have whittled away at the distinction between capital and non-capital cases under the Eighth Amendment.  Further, the Court has already extended its constitutional requirement of individualized sentencing beyond the capital context, at least to some extent.  While recent cases suggest that the Court is positioned to further expand the Eighth Amendment requirement of individualized sentencing, politics will likely have a role to play.  If one carefully frames the argument, there is the potential that persons across the political spectrum may find enhancing individualized sentencing under the Eighth Amendment appealing. 

First, expanding this requirement could result in more progressive sentencing practices, including the prohibition of mandatory sentences and mandatory minimum sentences.  It could also work to effect more humane prison conditions.  Further emphasizing individualized sentencing, however, does come with the risk of weakening uniformity and equality in sentencing.  On the other hand, individualized sentencing may also have appeal across the political aisle with religious conservatives — at least theoretically. Individualized sentencing is rooted in the notion of human dignity, which is central to Christian beliefs.  Further, individualized sentencing allows greater room for reform and rehabilitation, which are often achieved through religious means.  Finally, the increasing practice of individualization throughout our lives — from individualized medicine to individualized advertising — is conditioning Americans to expect enhanced individualization across disciplines.  A heightened constitutional focus on individualized sentencing would be consistent with such expectations.  Further, improved science and technology are regularly arming us with additional tools to better achieve individualized determinations related to sentencing considerations like culpability, deterrence, and rehabilitation.  This provides a foundation for the Court to build on its precedents to increase the Eighth Amendment requirement of individualized sentencing.

October 23, 2020 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, October 22, 2020

Some notable (and mostly heartening) criminal justice discussion in final Prez debate of 2020

Few months ago in this post I wished that we could somehow arrange for one of the then-planned Prez debates to be entirely about criminal justice issues.  Of course, that did not happen (and only two of the three planned debates even happened).  Still, during the final Prez debate of this election cycle, criminal justice issues received more discussion than in any other Prez debate in recent memory, and I am tempted to call the discussion heartening for a variety of reasons.

For starters, Prez Trump bragged repeatedly about his role in achieving "criminal justice reform and prison reform," and he also criticized former VP Biden for his past role in enacting federal criminal justice legislation in the 1980s and 1990s that "put tens of thousands of mostly Black young men in prison."  It was not that long ago that candidates were regularly competing to claim they were tougher than their opponents, but tonight Prez Trump assailed Biden for his tough-on-crime past while claiming credit for most progressive federal criminal justice reform in a generation (the FIRST STEP Act).

Meanwhile, VP Biden stated that the drug offense part of federal criminal legislation in the 1980s and 1990s was "a mistake," and he bragged that during the Obama administration "38 thousand prisoners [were] released from federal prison [and] over 1000 people given clemency."  And even more notable was Biden's plain statement that "there should be no minimum mandatories in the law."  Again, it was not that long ago that politicians were eager to brag about enacting mandatory minimums and about putting more people in prison.  Now the talking points focus on releasing prisoners and the pledge it to repeal mandatory minimums.

For these reasons and others, I remain mildly optimistic that we will see some measure of progress on some kind of follow up to the FIRST STEP Act or some other form of criminal justice reform in the coming years no matter who prevails in the coming election.  But I think the scope and contents of reform will surely look a look different, and the pace and implementation of any reform will surely transpire a lot differently, depending on who is in the White House and who is in charge in Congress.  Interesting times.

October 22, 2020 in Campaign 2020 and sentencing issues, Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (2)

Bureau of Justice Statistics reporting that, as of end of 2019, "US imprisonment rate at its lowest since 1995."

I was pleased this morning to get see this press release from the Bureau of Justice Statistics with this ALL CAPS heading: "U.S. IMPRISONMENT RATE AT ITS LOWEST SINCE 1995." Here are the details from the press release, which are drawn from this latest BJS report titled "Prisoners in 2019":

The combined state and federal imprisonment rate of 419 sentenced prisoners per 100,000 U.S. residents in 2019 was the lowest imprisonment rate since 1995, the Bureau of Justice Statistics announced today.   The imprisonment rate in 2019 marked a 17% decrease from 2009 and a 3% decrease from 2018, and it marked the 11th consecutive annual decrease.  The imprisonment rate — the portion of U.S. residents who are in prison — is based on prisoners sentenced to more than one year.

The imprisonment rate rose 23% from 1995 to its peak in 2007 and 2008 (506 sentenced prisoners per 100,000 residents in both years).  It then fell back below the 1996 level (which was 427 sentenced prisoners per 100,000 residents) in 2019.  Across the decade from 2009 to 2019, the imprisonment rate fell 29% among black residents, 24% among Hispanic residents and 12% among white residents.  In 2019, the imprisonment rate of black residents was the lowest it has been in 30 years, since 1989.

At year-end 2019, there were 1,096 sentenced black prisoners per 100,000 black residents, 525 sentenced Hispanic prisoners per 100,000 Hispanic residents and 214 sentenced white prisoners per 100,000 white residents in the U.S.  Among sentenced state prisoners at year-end 2018 (the most recent data available), a larger percentage of black (62%) and Hispanic (62%) prisoners than white prisoners (48%) were serving time for a violent offense.

An estimated 14% of sentenced state prisoners were serving time for murder or non-negligent manslaughter at year-end 2018, and 13% were serving time for rape or sexual assault.  At the end of fiscal-year 2019, 46% of sentenced federal prisoners were serving time for a drug offense (99% for drug trafficking), and 8% were serving time for a violent offense.

The total prison population in the U.S. declined from 1,464,400 at year-end 2018 to 1,430,800 at year-end 2019, a 2% decrease.  This marked the fifth consecutive annual decrease of at least 1% in the prison population.  At year-end 2019, the prison population had declined 11% from its peak of 1,615,500 prisoners in 2009.

In 2019, privately operated facilities held 7% of state prisoners and 16% of federal prisoners. Public and private adult prisons held 653 prisoners age 17 or younger at year-end 2019, down 11% from the 730 held at year-end 2018.

This news and the broader trends represented are good news for those who care about human liberty, though I am disinclined to celebrate too much given that the US incarceration rate remains the highest in the world and still reflects worrisome disparities.  Still, progress is worth appreciating, and so I am today appreciative of this latest reporting of (modest) good news.

October 22, 2020 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

"Felony Disenfranchisement and the Nineteenth Amendment"

The title of this post is the title of this interesting essay just recently posted to SSRN and authored by Michael Gentithes. Here is its abstract:

Today’s arguments in support of felony disenfranchisement laws bear striking similarities to the arguments of anti-suffragists more than a century earlier.  Both suggest that a traditionally subordinated class of citizens is inherently incapable of bearing the responsibility that the right to vote entails.  Both argue that some potential votes are somehow less worthy than others, and thus the authors of those votes ought to be excluded from the marketplace of political ideas.  And both assert a distinction between the votes of some citizens thought to be of higher political value, and those thought unworthy of having their voices counted in the political arena.

This Article examines the historical response to those arguments and suggests that they can be applied forcefully in the contemporary debate over felony disenfranchisement. Suffragists raised two arguments in response to coverture-based contentions against women enfranchisement: first, that men simply did not represent women’s interests in politics, instead subordinating them ever further both in family structures and the public sphere; and second, that women had something important to add to the political conversation that would be missing as long as they were excluded from the debate.  Similarly, felony disenfranchisement laws are based upon the fiction that there is a distinction between good votes of most citizens and bad votes of criminals, and therefore excluding former felons’ voices from the political arena is acceptable because their interests will be sufficiently served by the good votes of others.  But the voices of former felons should be heard, both because of the perspective those voices will bring to modern problems caused by growing incarceration rates, and because those voices may add important and worthy ideas to the political marketplace that would be absent if their contributions are excluded.

October 22, 2020 in Collateral consequences, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (0)

Wednesday, October 21, 2020

Prez Trump grants commutations to five persons given long federal prisons terms (though two were already out of prison)

I was a bit surprised and a lot pleased to see a release today from the White House titled "Statement from the Press Secretary Regarding Executive Grants of Clemency" providing news an details surrounding the decision by Prez Donald Trump to commute five federal sentences.  Here is the full statement:

Today, President Donald J. Trump signed Executive Grants of Clemency to commute the sentences of the following individuals: Lenora Logan, Rashella Reed, Charles Tanner, John Bolen, and Curtis McDonald.

Lenora Logan turned her life around after she was sentenced to 27 years in prison for her role in a cocaine conspiracy.  During her time in prison, she heroically came to the aid of a Bureau of Prisons nurse who was under vicious assault by an unstable inmate.  Without regard for her own safety, Ms. Logan immediately intervened and protected the life of the nurse.  This heroic act is but one example of Ms. Logan’s selfless acts since forging a better path for her life.  While incarcerated, Ms. Logan served as a suicide watch companion, a nursing assistant for those in hospice care, and a leader of the praise and worship team.  After serving approximately 20 years in prison, Ms. Logan, a mother and grandmother, was awarded compassionate release from the Bureau of Prisons.  Ms. Logan expresses regret for her past actions, exemplifies successful rehabilitation, and embodies the spirit of second chances.

Rashella Reed was a former Atlanta Public School teacher before her involvement in a public benefits fraud scheme.  She was sentenced to 14 years in prison after her convictions for wire fraud and money laundering.  While in prison, Ms. Reed used her teaching background to tutor inmates and facilitate children’s programs at the prison.  Ms. Reed is a model inmate, and many attest to her innate ability to encourage and uplift others despite her circumstances.  Ms. Reed accepts full responsibility for her actions and seeks to continue to make a difference in the lives of others.  After serving more than 6 years in prison, Ms. Reed was released on home confinement where she enjoys strong community and family support.

Charles Tanner was a young professional boxer with a promising career who sadly became involved in a drug conspiracy.  At the age of 24, he was arrested, tried, and initially sentenced to life in prison, which was later reduced to 30 years.  It was his first conviction of any kind.  He has served 16 years in prison.  Although Mr. Tanner began incarceration under a life sentence, he immediately worked to better himself by enrolling in educational courses.  To date, Mr. Tanner has completed hundreds of hours of educational programming, including an 18-month re-entry program that requires recommendation from staff and approval from the Warden for participation.  Mr. Tanner accepts responsibility and expresses remorse for his past actions.  Letters from his friends and family describe him as a respectful man of faith who exhibits positivity and works hard.

John Bolen was a small business owner who used his boat to transport cocaine from the Bahamas to Florida.  After a jury trial, he was sentenced to life imprisonment.  It was his first conviction of any kind, and Mr. Bolen has no documented history of violence.  He has served more than 13 years in prison without incident.  He has completed more than 1,300 hours of educational programming and vocational training, multiple re-entry programs, and has served as both a suicide companion and a mental health companion.  Mr. Bolen expresses “deep regret and shame” for his mistakes.  Several Bureau of Prison officials who have supervised Mr. Bolen describe him as a “model inmate,” a “regular hard working blue collar guy who simply stumbled along life’s path and made a mistake,” and someone who “displays dedication” in assisting others.

Curtis McDonald was convicted in 1996 for drug trafficking and money laundering and is now 70 years old.  After a jury trial, he was sentenced to life in prison.  He was a first-time offender who has now served nearly 24 years in prison and has an excellent record of good conduct.  Mr. McDonald has made productive use of his time in prison, maintaining employment with good job evaluations, and has completed numerous education courses.  Mr. McDonald has also served as a mentor in the Mentors for Life program.  He acknowledges that “the law is the law and I broke it” and attests that he is “not the same man I was walking through these doors” decades ago.  Mr. McDonald vows that despite his life sentence, he has been determined to “take advantage of every opportunity to help myself grow . . . so that I may be of use to those who want and need it.”

In light of the decisions these individuals have made following their convictions to improve their lives and the lives of others while incarcerated, the President has determined that each is deserving of an Executive Grant of Clemency.

I am always pleased to see any chief executive use his or her power of clemency wisely, though this handful of grants will not keep me from criticizing Prez Trump for still using his powers too sparingly in general and especially in the times of a pandemic.  I do not know any of the back stories of these cases, but I find it interesting that two of these five recipient were apparently already out of prison.  It is also somewhat notable that four of the five persons here receiving commutations were convicted of drug offenses.

A few of many prior related posts:

October 21, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Decarcerating Correctional Facilities during COVID-19: Advancing Health, Equity, and Safety"

The title of this post is the title of this notable new report released yesterday by the National Academies of Sciences, Engineering, and Medicine.  This press release about the report provides a helpful summary, and here is the start of the press release:

Where needed to adhere to public health guidelines and mitigate the spread of COVID-19, authorities should use their discretion to minimize incarceration in prisons and jails — and facilitate testing, quarantine, social supports, and individualized reentry plans for those released, according to a new report from the National Academies of Sciences, Engineering, and Medicine.  The report recommends corrections officials and public health authorities work together to determine the optimal population for jails and prisons to adhere to public health guidelines, considering characteristics that facilitate viral transmission, such as overcrowding, population turnover, health care capacity, and the overall health of individuals living in the facility.

Decarcerating Correctional Facilities During COVID-19: Advancing Health, Equity, and Safety says as of August 2020, COVID-19 case rates among incarcerated people were nearly five times higher than in the general population, and three times higher among correctional staff.  Jails and prisons in the U.S. are often overcrowded, dense, poorly ventilated, and disconnected from public health systems, making COVID-19 prevention among incarcerated people and staff exceedingly difficult.

Decarceration — reducing the population of prisons and jails by releasing and diverting people away from incarceration as they enter the criminal justice system — can lower the risk of infection for older and other high-risk incarcerated persons, and allow correctional facilities to more easily implement other COVID-19 prevention strategies such as physical distancing.  The report says that while some jurisdictions have taken steps to decarcerate since the onset of the pandemic, these efforts have so far been insufficient to reduce the risk of COVID-19 in jails and prisons.

The report recommends correctional officials identify candidates for release in a fair and equitable manner.  Individuals who are medically vulnerable, nearing the end of their sentence, or who present a low risk of committing serious crime will likely be suitable candidates.  Research on recidivism suggests that decarceration can be done with minimal risk to public safety.  The report points to data from New York City and California that show large reductions in prison populations were followed by crime rates that either fell or remained at low levels.  Research also shows that most returns to a correctional facility are driven by technical violations of parole or release, rather than new crimes.

Additional helpful related resources appear in this Report Highlights and in this Interactive Report Overview.

October 21, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Louisiana Supreme Court declares state statute requiring persons to carry ID branded with "SEX OFFENDER" violative of First Amendment

I am grateful to a reader for making sure I did not miss the ruling yesterday of the Supreme Court of Louisiana in Louisiana v. Hill, No. 2020-KA-00323 (La. Oct. 20, 2020) (available here). The start of the majority opinion captures its essence:

This case involves the constitutionality of a statutory requirement that persons convicted of sex offenses carry an identification card branded with the words “SEX OFFENDER.” This obligation is included as part of a comprehensive set of registration and notification requirements imposed on sex offenders in Louisiana.  Other states (and the federal government) have enacted similar collections of laws.  However, the specific requirement to carry a branded identification card distinguishes Louisiana from the rest of the country.  Forty-one other states do not require any designation on the identification cards of sex offenders.

For the reasons below, we find that this requirement constitutes compelled speech and does not survive a First Amendment strict scrutiny analysis.  Thus, we uphold the trial court’s ruling striking this specific requirement as unconstitutional and quashing the prosecution of defendant for altering his identification card to conceal the “SEX OFFENDER” designation.

The lone dissenting vote was by Justice Crain, who wrote a short dissenting opinion that starts this way:

The majority finds it unconstitutional to require a convicted sex offender to be identified as such on a government-issued identification card.  Louisiana Revised Statutes 40:1321J requires a registered sex offender to procure a special identification card that includes the words “sex offender” in all capital, orange letters.  That phrase is the speech at issue. It is not First Amendment protected speech.  The speaker is the government: the words are stamped by a governmental agency on a government-issued identification card in accordance with a government-enacted statute.  This is the embodiment of government speech.

October 21, 2020 in Collateral consequences, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (2)

Tuesday, October 20, 2020

Notable ideas and efforts to take on the trial penalty

A helpful reader made sure I did not miss these two recent interesting items related to the pernicious realities of the trial penalty:

Commentary from Shon Hopwood and Brett Tolman, "Amy Coney Barrett Could Help Repair Unconstitutional Aspects of the Criminal Justice System."  An excerpt (links from original):

The Constitution matters.  Yet, in our current criminal justice system, every day a fundamental component of the U.S. Constitution is trampled upon.  When a person accused of a crime chooses to defend themselves and to exercise their Sixth Amendment right to a “speedy and public trial” instead of accepting a plea deal, they should not be punished more severely for exercising this constitutional right.  As the nation watched the confirmation hearing of constitutional scholar and jurist Amy Coney Barrett, it was apparent that her intellect, her adherence to the text of the Constitution, and her discipline in preserving constitutional rights and protections make her a fitting replacement to Justice Ruth Bader Ginsburg and a justice poised to help repair a broken and unconstitutional aspect of the criminal justice system: the trial penalty.

The “trial penalty” isn’t just some law school exam hypothetical, but the real-life consequence of choosing to exercise a constitutional right and make the government actually prove their case.  A 2018 report from the National Association of Criminal Defense Lawyers found that “Guilty pleas have replaced trials for a very simple reason: individuals who choose to exercise their Sixth Amendment right to trial face exponentially higher sentences if they invoke the right to trial and lose.”  Former federal judge, John Gleeson, wrote in the introduction to this “trial penalty” report, “[p]utting the government to its proof is a constitutional right, enshrined in the Sixth Amendment; no one should be required to gamble with years and often decades of their liberty to exercise it.”

News Release from the National Association of Criminal Defense Lawyers, "NACDL Trial Penalty Clemency Project Submits First Set of Petitions to White House."  An excerpt (links from original): 

On October 2, 2020, NACDL’s Trial Penalty Clemency Project submitted its first set of federal clemency petitions to the Office of the Pardon Attorney and to the White House.  Of the six petitions, three concern individuals serving life sentences and a fourth concerns an individual serving an 835-year sentence.  Taken together, the sentences of these six individuals, as compared to the sentences of their co-defendants or to the plea deals offered to them, represent over 100 years of punishment solely due to the fact that these individuals exercised their Sixth Amendment right to go to trial — a defining feature of the modern American criminal legal system known as the trial penalty.

While society is awakening to the number of wrongs embodied in the trial penalty, there are a number of individuals enduring the trial penalty as they serve excessively long prison sentences as a result of electing to go to trial and holding the government to its burden.  The only remedy for these individuals is executive clemency. The Trial Penalty Clemency Project aims to assist those individuals by pairing applicants with volunteer attorneys who will assist them in preparing a clemency petition. Reform is needed to end the trial penalty.  In the interim, this Project provides an opportunity for a second chance to those individuals who are living it....

In 2018, NACDL released a groundbreaking report – The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It. Information and a PDF of NACDL’s 2018 Trial Penalty report, as well as video of the entire 90-minute launch event at the National Press Club in Washington, DC, and other trial penalty-related videos and materials are available at www.nacdl.org/trialpenaltyreport.

In 2019, The Federal Sentencing Reporter, published by University of California Press, released a double issue covering April and June 2019, edited by NACDL Executive Director Norman L. Reimer and NACDL President-Elect Martín Antonio Sabelli, entitled "The Tyranny of the Trial Penalty: The Consensus that Coercive Plea Practices Must End."

A few prior related posts:

October 20, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

"Drug Reforms on the 2020 Ballot"

2020-Ballot-Project-Header_for-web2The title of this post is the title of this great new web resource put together by the folks I have the honor to work with at The Ohio State University Moritz College of Law's Drug Enforcement and Policy Center.  The resource collects and organizes information and links about the significant number of drug policy reforms proposals appearing on state ballots this election cycle.  Here is introduction to the detailed state-by-state materials:

A closer look at drug policy reform decisions voters will make during the 2020 election

On election day 2020, voters will decide more than the next United States President. Drug policy and enforcement reforms will appear on numerous state-level ballots. Five states have qualifying initiatives that attempt to legalize marijuana for medical or adult-use consumption, including some states that will ask voters to decide on multiple pathways to a legal market. And marijuana reform is not the only drug-related issue on ballots. Initiatives in a few states and Washington, D.C. will ask voters to modify existing sentencing laws, decriminalize all drugs, or legalize psychedelics for adult-use and therapeutic reasons.

To gain a better understanding of what this election could mean for drug policy across the U.S., the Drug Enforcement and Policy Center (DEPC) has developed a list of key ballot initiatives reaching voters in 2020. Read on for a list of initiatives we will be watching this November in the areas of marijuana legalizationpsychedelics, and criminal justice.

Plus, don’t miss our post-election event Drug Policy Implications of the 2020 Elections on November 16, 2020. Our panel of experts will discuss the 2020 election results and what they are likely to mean for drug enforcement and policy at both the state and federal level.

October 20, 2020 in Campaign 2020 and sentencing issues, Drug Offense Sentencing, Elections and sentencing issues in political debates, Marijuana Legalization in the States | Permalink | Comments (0)

Rounding up yet another important round of recent COVID-19 prison and jail stories

One sign of COVID fatigue for me is my tendency now to just keep scrolling past new press stories about the ugly (new and old) realities of prisons and jails during this persistent pandemic.  But, especially because COVID fear and not just fatigue is a felt reality for many millions of incarcerated persons and corrections staff and their families every day, I still should keep rounding up prison-COVID press pieces on a regular basis.  And, as I have said before, we should be regularly thankful that the press and commentators keep reporting and discussing these stories that keep emerging from prisons and jails:

From the Appleton Post-Crescent, "COVID-19 has infected more than 2,600 people in Wisconsin’s prisons. Should certain inmates be released to stop the spread?"

From BBC News, "Prisoners locked up for 23 hours due to Covid rules is 'dangerous'"

From the (NC) News & Observer, "‘I signed up for a jail sentence, not a death sentence.’ Escapee now seeks leniency."

From the New York Times, "As Coronavirus Cases Soar, One Montana Town Reels: In the Mountain West, an outbreak has revealed the danger that the virus poses to jails and rural communities"

From NJ.com, "Murphy signs bill to release thousands of N.J. prisoners early beginning the day after Election Day"

From PBS News Hour, "Inside the COVID unit at the world’s largest women’s prison"

From Slate, "The Right to Escape From Prison: A 1974 ruling bears revisiting as prisoners flee the COVID-19 pandemic."

From the Washington Post, "Two Baltimore correctional officers died of covid-19 just months apart"

October 20, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (1)

Monday, October 19, 2020

US Sentencing Commission releases its latest updated "First Step Act of 2018 Resentencing Provisions Retroactivity Data Report"

I just noticed that the US Sentencing Commission today released this updated new version of its data report titled "First Step Act of 2018 Resentencing Provisions Retroactivity Data Report." The introduction to the report provides this context and overview:

On December 21, 2018, the President signed into law the First Step Act of 2018.  Section 404 of that act provides that any defendant sentenced before the effective date of the Fair Sentencing Act of 2010 (August 3, 2010) who did not receive the benefit of the statutory penalty changes made by that Act is eligible for a sentence reduction as if Sections 2 and 3 of the Fair Sentencing Act of 2010 were in effect at the time the offender was sentenced.  The First Step Act authorizes the defendant, the Director of the Bureau of Prisons, the attorney for the Government, or the court to make a motion to reduce an offender’s sentence.

The data in this report represents information concerning motions for a reduced sentence pursuant to Section 404 of the First Step Act which the courts have granted. The data in this report reflects all motions granted through June 30, 2020 and for which court documentation was received, coded, and edited at the Commission by October 15, 2020.

These new updated data from the USSC show that 3,363 prisoners have been granted sentence reductions.  The average sentence reduction was 71 months of imprisonment (roughly a quarter of the original sentence) among those cases in which the the resulting term of imprisonment could be determined.  Though this data is not exact and may not be complete, it still seems sound to now assert that this part of the FIRST STEP Act alone, by shortening nearly 3361 sentences by nearly 6 years, has resulted in nearly 20,000 federal prison years saved! (That is an eliminations of two hundred centuries of scheduled human time in federal cages, if you want to think of it another way.)

Of course, as I have noted before, the FSA retroactivity provision of the FIRST STEP Act was only a small piece of the legislation. But these latest data show yet again how this small piece has had big impact in lots of years of lots of lives. And, of critical importance and note to be overlooked, people of color have been distinctly impacted: the USSC data document that nearly 92% of persons receiving these FSA sentence reductions were Black and more than another 4% were Latinx.

October 19, 2020 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, FIRST STEP Act and its implementation, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

"The Complexities of Conscience: Reconciling Death Penalty Law with Capital Jurors’ Concerns"

The title of this post is the title of this notable new paper available via SSRN and authored by Meredith Rountree and Mary Rose. Here is its abstract:

Jurors exercise unique legal power when they are called upon to decide whether to sentence someone to death.  The Supreme Court emphasizes the central role of the jury’s moral judgment in making this sentencing decision, noting that it is the jurors who are ‘best able to express the conscience of the community on the ultimate question of life or death.’” Many lower courts nevertheless narrow the range of admissible evidence at the mitigation phase of a capital trial, insisting on a standard of legal relevance that interferes with the jury’s ability to exercise the very moral judgment the Supreme Court has deemed essential.

Combining moral theory and original empirical evidence, this Article breaks new ground by linking these to a legal framework that gives full effect to the Supreme Court’s vision of the jury.  Aided by a novel dataset of federal capital jury verdict forms, the Article focuses on three types of evidence frequently excluded in state and federal courts: the impact of the defendant’s execution on loved ones, co-participant sentences, and the government’s negligent facilitation of the murder.

The data show that jurors consistently find all three forms of evidence highly salient in their mitigation deliberations.  Further, two of these — execution impact evidence and co-participant sentences — have a statistically significant correlation with the jurors’ sentencing decision.  This Article’s empirical and moral account of juror behavior strongly supports expanding the admissibility of this evidence to reflect the Supreme Court’s evolution in defining the relevance of mitigating evidence as a moral, rather than legalistic, question, appropriately recognizing the jury’s normative role.

October 19, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Notable SCOTUS Fourth Amendment activity, but nothing for sentencing fans

I flagged in this post from June my sense that the Supreme Court has become particularly (and problematically) quiet on sentencing matters.  This feeling continues with this morning's new SCOTUS order list in which the Court granted cert on three new cases, but denied cert without comment in the Demma reasonableness review case flagged here.  I suppose the coming oral arguments in Borden v. US, No. 19-5410 (another ACCA application case), and especially Jones v. Mississippi, No. 18-1259 (application of Miller), provide plenty to keep sentencing fans engaged for now.  But I remain disappointed that SCOTUS has now been quiesced on a range of (non-ACCA) federal sentencing issues for quite some time.

But, perhaps unsurprisingly in light of other 2020 events, it does seem like the Justices are getting ever more engaged on Fourth Amendment issues.  Specifically, one of the new cert grants comes in Lange v. California, which SCOTUSblog describes this way: "Whether the pursuit of a person whom a police officer has probable cause to believe has committed a misdemeanor categorically qualifies as an exigent circumstance sufficient to allow the officer to enter a home without a warrant."

In addition, Justice Gorsuch, joined by Justices Sotomayor and Kagan, issued a notable five-page statement respecting the denial of certiorari in another Fourth Amendment case, Bovat v. Vermont.  This statement includes a picture so that readers can better visualize the police activity which gets verbally described this way:

Suspecting Clyde Bovat of unlawfully hunting a deer at night (Vermont calls it a “deer jacking”), game wardens decided to pay him a visit to — in their words — “investigate further.”  But the wardens admit that “pretty soon after arriving” they focused on a window in Mr. Bovat’s detached garage.  Heading there and peering inside, the wardens spotted what they thought could be deer hair on the tailgate of a parked truck.

I am never troubled when all sort of police activity, even concerning deer hair and deer jacking, gets subject to appropriate scrutiny.  But I still see so many federal (and state) sentencing activities that could merit so much more SCOTUS scrutiny.

October 19, 2020 in Sentences Reconsidered, Who Sentences | Permalink | Comments (3)