Sentencing Law and Policy

New poll indicates strong public support for various provisions of FIRST STEP ACT

I noted in this prior post a poll commissioned by a prosecutor group showing significant opposition to proposals to reduce sentences for serious drug traffickers.  But, as detailed in this Reason piece headlined "Poll Shows Wide Support For Criminal Justice Reform Bill In Congress: Prosecutor groups and criminal justice reform advocates are putting out dueling polls on a major bill in Congress," this week brings a new poll with very different results:

A new survey shows wide support among registered voters for provisions in a major criminal justice bill in Congress, in sharp contrast to a survey promoted by a group of federal prosecutors released last week showing opposition to the bill.  According to a national survey of 1,234 registered voters conducted online between Oct. 11-12, 82 percent of respondents approved of the specific provisions in the FIRST STEP Act, a prison reform bill that passed the House by a wide bipartisan margin this May.

Additionally, 82 percent supported allowing non-violent offenders to finish their sentences in home confinement in order to ease their integration back into society, and 76 percent of respondents agreed with the FIRST STEP Act's "good behavior" provision that would expand the number of days non-violent offenders can have removed from their sentence.  The survey was conducted by In Pursuit Of, LLC, a communications firm connected with the Koch network of conservative advocacy groups, for the organization Freedom Partners....

The Foundation for Safeguarding Justice, a group aligned with the National Association of Assistant U.S. Attorneys (NAAUSA), which represents federal prosecutors, released its own poll last week showing what it says is widespread opposition to reducing federal penalties for drug traffickers....

"We're looking at what this group and what they're putting out and just shaking our heads," says Mark Holden, the chairman of Freedom Partners and general counsel of Koch Industries. "We're not sure how they're coming up with their numbers.  The home confinement stuff they're polling on, our polling shows a completely different outcome.  There's immense support for all the provisions in the bill, and anyone who says otherwise is obviously motivated by an agenda."

The NAAUSA has consistently opposed efforts to reduce federal mandatory minimum sentencing laws, expand judges' discretion, or in any way reduce the leverage federal prosecutors enjoy over defendants — a result of which is that 97 percent of federal prosecutions end in plea deals.

Of course, the language of the surveys might be the culprit here. The same respondent might, on different days and with no internal contradiction, say when asked that fentanyl dealers deserve harsher sentences and that nonviolent offenders should have better preparation and more opportunities to reintegrate back into society.

Other supporters of the FIRST STEP Act also say they've seen consistent public support for the measures in the bill.  "Virtually every poll we've seen shows support for prison reform and sentencing reform," says Jason Pye, vice president of legislative affairs at FreedomWorks, a grassroots conservative advocacy group. "After all, people are seeing the successes of state level efforts."

"Prescription Drug Monitoring Programs, Opioid Abuse, and Crime"

A helpful colleague made sure I did not miss this interesting working paper with the same title as this post and authored by Dhaval Dave, Monica Deza and Brady Horn. Here is its abstract:

The past two decades have witnessed a substantial increase in opioid use and abuse in the United States.  In response to this opioid epidemic, prescription drug monitoring programs (PDMPs) have been implemented in virtually all states.  These programs collect, monitor, and analyze prescription opioid data with the goal of preventing the abuse and diversion of controlled substances.  A growing literature has found that voluntary PDMPs, which do not require doctors to access PDMPs before prescribing controlled substances, have had little effect on opioid use and misuse. However, PDMPs that do mandate access have been found to be effective in reducing opioid misuse and other related health outcomes.

In this paper we study the broader impact of voluntary and mandatory-access PDMPs on crime, and in the process inform the causal link between prescription opioid abuse and crime. Using information on offenses known to law enforcement and arrests from the Uniform Crime Reports (UCR), combined with a difference-in-differences empirical strategy, we find that voluntary PDMPs did not significantly affect crime whereas mandatory-access PDMPs have reduced crime by approximately 3.5%.  Reductions in crime are largely associated with violent crimes, particularly homicide and assault.  Also, we find evidence that young adults experienced the largest decrease in crime, which is consistent with prior work that also finds relatively larger declines in prescription opioid abuse for this group.  Overall, these results provide additional evidence that prescription drug monitoring programs are an effective social policy tool to mitigate the negative consequences of opioid misuse, and more broadly indicate that opioid policies can have important spillover effects into other non-health related domains such as crime.

Washington Supreme Court declares all juve LWOP cruel punishment and unconstitutional under state constitution

Last week, as noted here, the Washington Supreme Court struck down the state's death penalty based on its arbitrary administration in Washington v. Gregory. Today the same court brings us another big state constitutional opinion in Washington v. Bassett, No. 94556-0 (Wash. Oct. 18, 2018) (available here). The death penalty abolition, interestingly, was unanimous, while this latest opinion divided 5-4. Here is how the majority opinion starts:

At issue here is the constitutionality of sentencing juvenile offenders to life in prison without the possibility of parole or early release.  The State appeals a Court of Appeals, Division Two decision holding that the provision of our state's Miller-fix statute that allows 16- and 17-year-olds to be sentenced to life without parole violates the Washington Constitution's ban on cruel punishment.  Brian Bassett, recently resentenced to life without parole under the Miller-fix statute, argued at the Court of Appeals that juvenile life without parole is categorically unconstitutional.  The court adopted the categorical approach, rather than our traditional Fain proportionality test, and found that sentencing juvenile offenders to life without parole or early release constituted cruel punishment.  State v. Bassett, 198 Wn. App. 714, 744, 394 P.3d 430 (2017) (puhlished in part); State v. Fain, 94 Wn.2d 387, 617 P.2d 720 (1980).  We affirm the Court of Appeals' decision and hold that sentencing juvenile offenders to life without parole or early release constitutes cruel punishment and therefore is unconstitutional under article I, section 14 of the Washington Constitution.

Here is how the dissent gets started:

The majority's decision to invalidate a provision of our Miller-fix statute, RCW 10.95.030(3)(a)(ii), and to categorically bar the imposition of a juvenile life without parole (LWOP) sentence purports to rest on article I, section 14 of the Washington State Constitution.  However, it offers no basis in state law but is simply a reinterpretation of Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012).  More precisely, the majority takes Miller's federal constitutional requirement — that a sentencing court consider youth and its attendant characteristics as mitigating factors in exercising sentencing discretion to impose LWOP — and uses it to categorically bar the exercise of such discretion under the state constitution.  Not only is this contrary to the holding in Miller itself, which does not categorically bar LWOP sentences for juvenile homicide offenders, it also departs from state precedent rejecting similar constitutional challenges and upholding judicial sentencing discretion.

Remarkable sentencing where district judge decided crooked cops needed more punishment than federal prosecutors sought

This local article from Florida reports on a sentencing in a remarkable federal case under the headline "Ex-Biscayne Park officers get year in prison for roles in framing black teen in crimes." Here are the details from the start of the article:

By helping the feds make a case against a corrupt ex-Biscayne Park police chief, two convicted former officers were hoping to avoid prison time for their roles in framing a black teenager with a string of burglaries. Instead, Charlie Dayoub and Raul Fernandez were handcuffed and led by U.S. Marshals into custody on Tuesday after U.S. District Judge K. Michael Moore sentenced them to the maximum: one year in prison for the false arrests.

As family members cried in disbelief, Moore chastised federal prosecutors for agreeing to recommend eight months of home confinement for Dayoub and one year of probation for Fernandez based on their grand jury testimony and other assistance in helping target former Chief Raimundo Atesiano, who had pressured officers in the mostly white suburban town to pin property crimes on people of color. He pleaded guilty last month. “It would have been a slap on the wrist, and it would have sent entirely the wrong message — particularly to the minority community,” Moore told Assistant U.S. Attorney Harry Wallace. “To think that they can come into court and get a slap on the wrist is insulting to the men and women in law enforcement.”

Moore challenged the prosecutor about his recommendation of leniency for the two defendants, who pleaded guilty in August to depriving a 16-year-old of his civil rights after framing him for four unsolved burglaries in 2013 at the direction of the ex-chief, Atesiano. The misdemeanor conviction carried up to one year in prison, while under the plea agreement prosecutors dropped a more serious civil rights conspiracy charge with a maximum 10-year sentence.

Wallace said his decision allowed the U.S. Attorney’s Office to use testimony by Dayoub and Fernandez to compel Atesiano to plead guilty to the felony civil rights conspiracy. “We were faced with a Hobson’s choice,” Wallace told the judge. But Moore, who accused the prosecutors of “sentencing manipulation,” rejected Wallace’s argument. The judge said had the prosecutors gone to trial against the ex-chief and the two officers, it would have been a “slam dunk.”

The sentencing outcome was a shock to everyone in the courtroom, especially the defendants, who were expecting leniency because the prosecutors joined their defense attorneys in support of no prison time. The reason: The two former Biscayne Park police officers testified before a federal grand jury about how the department’s ex-chief pressured them to arrest people of color and others for crimes they did not commit in the leafy bedroom community north of Miami.

Dayoub, 38, and Fernandez, 62, testified that Atesiano’s goal was to achieve a 100 percent burglary clearance rate, even if it meant pinning unsolved break-ins on people who were innocent victims, according to newly filed court records. Atesiano, 52, and another former Biscayne Park officer, Guillermo Ravelo, 37, already pleaded guilty to conspiring to violate the civil rights of innocent victims by falsely arresting them. Ravelo faces up to 10 years at his sentencing on Thursday, while Atesiano faces similar punishment in November.

UPDATE: This new Justice Department press release discusses the underlying crimes in detail while announcing that today "former Biscayne Park Police Officer Guillermo Ravelo was sentenced to 27 months incarceration for conspiracy to deprive a person of his civil rights and deprivation of civil rights under color of law."

"Evidence-Informed Criminal Justice"

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

The American criminal justice system is at a turning point.  For decades, as the rate of incarceration exploded, observers of the American criminal justice system criticized the enormous discretion wielded by key actors, particularly police and prosecutors, and the lack of empirical evidence that has informed that discretion.  Since the 1967 President’s Commission on Law Enforcement and Administration of Justice report, The Challenge of Crime in a Free Society, there has been broad awareness that the criminal system lacks empirically informed approaches.  That report unsuccessfully called for a national research strategy, with an independent national criminal justice research institute, along the lines of the National Institutes of Health.  Following the report, police agencies continued to base their practices on conventional wisdom or “tried-and-true” methods.  Prosecutors retained broad discretion, relying on their judgment as lawyers and elected officials.  Lawmakers enacted new criminal statutes, largely reacting to the politics of crime and not empirical evidence concerning what measures make for effective crime control.  Judges interpreted traditional constitutional criminal procedure rules in deference to the exercise of discretion by each of these actors.  Very little data existed to test what worked for police or prosecutors, or to protect individual defendants’ rights.

Today, criminal justice actors are embracing more data-driven approaches.  This raises new opportunities and challenges.  A deep concern is whether the same institutional arrangements that produced mass incarceration will use data collection to maintain the status quo. Important concerns remain with relying on data, selectively produced and used by officials and analyzed in nontransparent ways, without sufficient review by the larger research and policy community.  Efforts to evaluate research in a systematic and interdisciplinary fashion in the field of medicine offer useful lessons for criminal justice.  This Article explores the opportunities and concerns raised by a law, policy, and research agenda for an evidence-informed criminal justice system.

Justice Department touts record-breaking increases in federal criminal charges

This afternoon I received notice of this new DOJ press release titled "Justice Department Smashes Records for Violent Crime, Gun Crime, Illegal Immigration Prosecutions, Increases Drug and White Collar Prosecutions." Here is the text of the release (with emphasis in original):

Under the leadership of Attorney General Jeff Sessions, the Department of Justice charged the largest number of violent crime and firearm defendants in its history in Fiscal Year (FY) 2018.

“President Donald Trump is a law-and-order President — and this is a law-and-order administration,” said Attorney General Jeff Sessions.  “The Department of Justice is breaking law enforcement records and doing so by significant margins.   When I took office as Attorney General, I ordered federal prosecutors and agents to take illegal guns off of our streets, to prosecute crimes aggressively, to protect our nation’s borders, and to target white collar fraud.  With support from our state and local partners, our federal prosecutors and agents have delivered — and I am grateful to them and the fabulous state and local officers who worked so hard to make these achievements possible.  And we are seeing results.  Violent crime and homicides, which jumped in 2015 and 2016, both dropped in 2017 and will drop again in 2018.  There can be no doubt that good law enforcement policies can make our communities safer.”

According to data from the Executive Office of United States Attorneys (EOUSA), the number of defendants charged with criminal felony offenses increased by nearly 15 percent from more than 71,200 defendants in FY 2017 to more than 81,800 in FY 2018. 

In FY 2018, the Justice Department charged the largest number of violent crime defendants since EOUSA started to track this category more than 25 years ago (more than 16,800) — surpassing by nearly 15 percent the previous record set just last year.

In FY 2018, the Justice Department charged more than 15,300 defendants with federal firearms offenses, which is 17 percent more than the previous record.

In FY 2018, over 23,400 defendants were charged with felony illegal re-entry, an increase of more than 38 percent from FY 2017.

In FY 2018, over 23,600 defendants were charged with drug-related offenses, an increase of more than six percent from FY 2017.  

Also in FY 2018, the Justice Department increased white-collar prosecutions by more than three percent, charging more than 6,500 defendants.

Finally, in FY 2018, more than 68,400 defendants were charged with misdemeanor illegal entry.  This is the highest number of such defendants charged since EOUSA started to track this category and an almost 86 percent increase from the previous year.  This total is also more than 4 percent higher than the previous record of over 65,500 defendants set in FY 2013.

"Expanding the Vote: Two Decades of Felony Disenfranchisement Reform"

The title of this post is the title of this new report by The Sentencing Project.  Here is its "Overview":

More than 6 million citizens will be ineligible to vote in the midterm elections in November 2018 because of a felony conviction.  Nearly 4.7 million of them are not incarcerated but live in one of 34 states that prohibit voting by people on probation, parole, or who have completed their sentence.  Racial disparities in the criminal justice system also translate into higher rates of disenfranchisement in communities of color, resulting in one of every thirteen African American adults being ineligible to vote.

Despite these stark statistics, in recent years significant reforms in felony disenfranchisement policies have been achieved at the state level.  Since 1997, 23 states have amended their felony disenfranchisement policies in an effort to reduce their restrictiveness and expand voter eligibility. 

These reforms include:

• Seven states either repealed or amended lifetime disenfranchisement laws

• Six states expanded voting rights to some or all persons under community supervision

• Seventeen states eased the restoration process for persons seeking to have their right to vote restored after completing sentence 1.4 million people have regained the right to vote as a result of felony disenfranchisement reforms

These policy changes represent national momentum for reform of restrictive voting rights laws.  As a result of the reforms achieved during the period from 1997-2018, an estimated 1.4 million people have regained the right to vote.

This report provides a state by state accounting of the changes to voting rights for people with felony convictions and measures its impact.  These changes have come about through various mechanisms, including legislative reform, executive action, and a ballot initiative.

Lots of interesting recent reform commentary on lots of different topics

I am in the midst of one of those weeks in which I have too little time to follow the criminal justice news, let alone effectively blog about highlights. Consequently, I am going to start "hump day" today with a (too) quick round up of some interesting commentary I have seen from interesting folks on interesting topics.  In alphabetical order by author:

By Erwin Chemerinsky, "The death penalty is now unconstitutional in Washington state. California should be next"

By Seth Ferranti "How Men in Prison Reacted to Brett Kavanaugh's Confirmation"

By Newt Gingrich and Van Jones, "[Ohio] Issue 1 tackles opioid epidemic, puts politics aside"

By Kevin Ring, "I once wrote mandatory minimum laws. After ties to Abramoff landed me in prison, I know they must end."

 By Sally Yates, "Don't let Trump's use of celebrities distract you from his criminal-justice failures"

By Steve Zeidman, "Let more juvie felons out: Raise the Age is only a first step"

"'Second Looks, Second Chances': Collaborating with Lifers on a Video about Commutation of LWOP Sentences"

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

In Pennsylvania, life means life without the possibility of parole (“LWOP”) or “death by incarceration.”  Although executive commutation offers long serving rehabilitated lifers hope of release, in the past 20 years, only 8 commutations have been granted by the state’s governors.  This article describes the collaboration between an organization of incarcerated persons serving LWOP and the law-school-based Penn Program on Documentaries and the Law that produced a video supporting increased commutations for Pennsylvania lifers.  The article details the methodology of collaborative videomaking employed, the strategic decisions over content that were impacted by the politics of commutation, and the contributions of visual criminology to the video’s portrayal of the lifers who participated in the project.

Vera Institute of Justice urges "Reimagining Prison"

The Vera Institute of Justice has recently produced this big new report as part a big new project under the label "Reimagining Prison." Here is how the report's executive summary gets started:

The United States holds approximately 1.5 million people in its state and federal prisons.  Although this number has declined since its peak in 2009, mass incarceration is hardly a thing of the past.  Even if the nation returned to the incarceration rates it experienced before 1970, more than 300,000 people — approximately one per 1,000 residents— would still be held in U.S. prisons.  And the conditions of that confinement are dismal. Prison in America is a place of severe hardship — a degree of hardship that is largely inconceivable to people who have not seen or experienced it themselves or through a loved one.  It is an institution that causes individual, community, and generational pain and deprivation. For those behind the walls, prison is characterized by social and physical isolation, including severe restriction of personal movement, enforced idleness, insufficient basic care, a loss of meaningful personal contact and the deterioration of family relationships, and the denial of constitutional rights and avenues to justice. Those who work in prisons suffer too, with alarming rates of post-traumatic stress disorder and suicide compared to the general population.

Beyond the walls of prison, incarceration’s impact is broad: mass imprisonment disrupts social networks, distorts social norms, and hollows out citizenship.  Over this country’s long history of using prisons, American values of fairness and justice have been sacrificed to these institutions in the name of securing the common good of public safety.  But the harsh conditions within prisons have been demonstrated neither to ensure safety behind the walls nor to prevent crime and victimization in the community.

The story of American prisons is also a story of racism.  We as a nation have not yet fully grappled with the ways in which prisons — how they have been used, the purposes they serve, who gets sent to them, and people’s experiences inside them — are intimately entwined with the legacy of slavery and generations of racial and social injustice. Built on a system of racist policies and practices that has disproportionately impacted people of color, mass incarceration has decimated the communities and families from which they come. It is time to acknowledge that this country has long used state punishment generally — and incarceration specifically — to subordinate racial and ethnic minorities.

The recent prison incident in South Carolina that left seven dead, as well as prison strikes across the country in 2016 and 2018 protesting inhumane treatment, serve as tragic wake-up calls that something is fundamentally wrong inside America’s prisons.  With a few limited exceptions, correctional practice today remains underpinned by retribution, deterrence, and incapacitation.  These realities beg the question: isn’t there another way? We have failed to ask this question with sufficient seriousness and thoroughness.  The time for us to do so is now.  And so, to take a truly decisive step away from the past, America needs a new set of normative values on which to ground prison policy and practice — values that simultaneously recognize, interrogate, and unravel the persistent connections between racism and this country’s system of punishment.

In this report, the Vera Institute of Justice (Vera) reimagines the how, what, and why of incarceration. And in so doing, we assert a new governing principle: human dignity. This principle dictates that “[e]very human being possesses an intrinsic worth, merely by being human.” It applies to people living in prison as well as the corrections staff who work there.

Federal judge decides Missouri parole practices fail to comply with requirements of Miller and Graham

As reported in this local article, headlined "Missouri violated rights of inmates convicted as juveniles who are serving life without parole, judge says," a federal judge late last week ruled in favor of inmates convicted of murder as juveniles who claimed that Missouri’s parole policies and practices violated their rights in the wake of the Supreme Court's rulings in Miller and Graham. Here are the basics:

A federal judge on Friday said that recent Missouri parole hearings violated the constitutional rights of inmates serving life without parole for offenses they committed when they were juveniles.  State officials have 60 days to develop a plan for providing the inmates “a meaningful and realistic opportunity” for parole, U.S. District Judge Nanette K. Laughrey ruled.

The lawsuit was filed by four inmates who are seeking to represent all inmates who were convicted and sentenced to life without parole for an offense that occurred when they were younger than 18.  Each of the four inmates was recently denied parole after a hearing, and Laughrey said nearly 85 percent of the class of affected inmates did not receive a parole date after a hearing. The majority were not granted another hearing for the maximum of five years, without an explanation “for the lengthy setback,” she wrote.

In a news release about the ruling Sunday, the Roderick & Solange MacArthur Justice Center of St. Louis, which represents the inmates along with lawyers from Husch Blackwell, said more than 90 inmates are affected.

The parole board’s decision is communicated to inmates on a two-page “barebones, boilerplate form,” with only two available reasons for denying parole: the seriousness of the original offense or that the inmate’s “inability to... remain at liberty without again violating the law,” Laughrey wrote.  Even state officials admitted Missouri failed to provide adequate explanation for the decisions, the judge said, and fails to tell inmates what “steps they should to take to become better suited for parole.”

Laughrey wrote that while an adult’s “interest in parole is not constitutionally protected,” a series of U.S. Supreme Court decisions “has held that those who were children at the time of the crimes for which they were convicted may be subject to certain additional protections.”...

Laughrey ruled that the state needs to come up with “revised policies, procedures, and customs” that will “ensure that all Class members are provided a meaningful and realistic opportunity for release based on demonstrated maturity and rehabilitation,” including those who already had unsuccessful hearings.

The full 27-page ruling in Brown v. Percythe, No. 2:17-cv-04082-NKL (W.D. Mo. Oct. 12, 2018), is available at this link.

New investigation finds "women in prison are disciplined at higher rates than men"

This lengthy new NPR piece, headlined "In Prison, Discipline Comes Down Hardest On Women," reports on new media research showing women are treated particularly harshly in prisons.  Here are excerpts from the piece which should be read in full:

Across the country, women in prison are disciplined at higher rates than men — often two to three times more often, and sometimes more — for smaller infractions of prison rules.

That is the finding of an investigation by NPR and the Medill School of Journalism at Northwestern University.  We collected data from women's and men's prisons, visited five women's prisons around the country, and interviewed current and former prisoners along with past and present wardens and prison officials. We also spoke with academics and other experts.

In 13 of the 15 states we analyzed, women get in trouble at higher rates than men.  The discrepancies are highest for more minor infractions of prison rules....

In California, according to our data analysis, women get more than twice the disciplinary tickets for what's called "disrespect."  In Vermont, women are more than three times as likely as men to get in trouble for "derogatory comments" about a corrections officer or another inmate. In Rhode Island, women get more than three times the tickets for "disobedience."  And in Iowa, female prisoners were nearly three times as likely as men to get in trouble for the violation of being "disruptive."

While the infractions might seem minor, punishment for them can have significant consequences, we found. In Idaho and Rhode Island, for instance, women are more likely than men to end up in solitary confinement for violations like disobedience.

Women can lose "good conduct credits" that would shorten an inmate's sentence, causing them to spend more time behind bars.  In California, between January 2016 and February 2018, women had the equivalent of 1,483 years added to their sentences through good-credit revocations, and at a higher rate than for male prisoners, according to the data we collected.

Discipline for small infractions can also result in the loss of privileges like being able to buy food or supplies — including women's hygiene products — at the prison commissary.  Or inmates lose their visitation and phone privileges.  That can have a particular effect on women, because more than half of women in prison are the mothers of children 18 or younger.

We found a disproportionate pattern in punishment as well, with women often receiving more serious sanctions than men.  In Massachusetts, according to our analysis, 60 percent of punishments for women restricted where they could go in prison, including confinement to their cells. Men received those punishments half as often....

We asked experts why women get disciplined more for minor infractions.  They noted that prison rules were set up to control men, especially violent ones.  But that strict system of control doesn't always work for female prisoners.

One reason, researchers have increasingly come to understand, is that women typically come to prison for different reasons than do men and respond differently to prison life.  Most prison staffers, meanwhile, are not trained to understand these differences.

Women are more likely than men to come for drug and property crimes and less likely to be convicted of violent crimes. They're also less likely to be violent once they're in prison.  They're also more likely than men to have significant problems with substance abuse, to have mental health problems and to be the caregiving parent of a minor child.

Over dissent, SCOTUS refuses to take up Johnson challenge to then-mandatory career-offender guidelines

The Supreme Court had recently relisted a set of cases concerning whether and how the Court's vagueness ruling in Johnson applied to a key provision of the career-offender sentencing guideline when that guideline was still mandatory before the Booker ruling. (Sentencing gurus know that the Justices in Beckles decided that Booker melted away any constitutional vagueness problems when it make the guidelines advisory.) Today, via this new order list, the Court denied cert on all these cases.

I am a bit surprised and a lot disappointed by these cert denials, largely for reasons expressed by Justice Sotomayor in this dissent joined by Justice Ginsburg in Brown v. US, No. 17–9276.  Here is how the four-page dissent from the denial of certiorari starts and ends:

Today this Court denies petitioners, and perhaps more than 1,000 like them, a chance to challenge the constitutionality of their sentences.  They were sentenced under a then-mandatory provision of the U.S. Sentencing Guidelines, the exact language of which we have recently identified as unconstitutionally vague in another legally binding provision.  These petitioners argue that their sentences, too, are unconstitutional.  This important question, which has generated divergence among the lower courts, calls out for an answer.  Because this Court’s decision to deny certiorari precludes petitioners from obtaining such an answer, I respectfully dissent....

The question for a petitioner like Brown, then, is whether he may rely on the right recognized in Johnson to challenge identical language in the mandatory Guidelines. Three Courts of Appeals have said no.  See 868 F.3d 297 (CA4 2017) (case below); Raybon v. United States, 867 F.3d 625 (CA6 2017); United States v. Greer, 881 F.3d 1241 (CA10 2018).  One Court of Appeals has said yes.  See Cross v. United States, 892 F.3d 288 (CA7 2018).  Another has strongly hinted yes in a different posture, after which point the Government dismissed at least one appeal that would have allowed the court to answer the question directly.  See Moore v. United States, 871 F.3d 72, 80–84 (CA1 2017); see also United States v. Roy, 282 F. Supp. 3d 421 (Mass. 2017); United States v. Roy, Withdrawal of Appeal in No. 17–2169 (CA1).  One other court has concluded that the mandatory Guidelines themselves cannot be challenged for vagueness.  See In re Griffin, 823 F.3d 1350, 1354 (CA11 2016).

Regardless of where one stands on the merits of how far Johnson extends, this case presents an important question of federal law that has divided the courts of appeals and in theory could determine the liberty of over 1,000 people.  That sounds like the kind of case we ought to hear. See this Court’s Rules 10(a), (c).  Because the Court nevertheless declines to do so, I respectfully dissent.

"How Statistics Doomed Washington State’s Death Penalty"

The title of this post is the title of this new commentary at The Atlantic by Garrett Epps.  Here is an excerpt (with links from the original):

Last week, the Washington Supreme Court, in a fairly pointed opinion, declared that, at least in its jurisdiction, numbers have real meaning.  And to those who have eyes to see, numbers make clear the truth about death-sentencing: It is arbitrary and racist in its application.

The court’s decision was based on two studies commissioned by lawyers defending Allen Gregory, who was convicted of rape and murder in Tacoma, Washington, in 2001 and sentenced to death by a jury there. The court appointed a special commissioner to evaluate the reports, hear the state’s response, and file a detailed evaluation.  The evidence, the court said, showed that Washington counties with larger black populations had higher rates of death sentences—and that in Washington, “black defendants were four and a half times more likely to be sentenced to death than similarly situated white defendants.” Thus, the state court concluded, “Washington’s death penalty is administered in an arbitrary and racially biased manner” — and violated the Washington State Constitution’s prohibition on “cruel punishment.”

The court’s opinion is painstaking — almost sarcastic — on one point: “Let there be no doubt — we adhere to our duty to resolve constitutional questions under our own [state] constitution, and accordingly, we resolve this case on adequate and independent state constitutional principles.”  “Adequate and independent” are magic words in U.S. constitutional law; they mean that the state court’s opinion is not based on the U.S. Constitution, and its rule will not change if the nine justices in Washington change their view of the federal Eighth Amendment.  Whatever the federal constitutionality of the death penalty, Washington state is now out of its misery.  

 Last spring, a conservative federal judge, Jeffrey Sutton of the Sixth Circuit, published 51 Imperfect Solutions: States and the Making of American Constitutional Law,  a book urging lawyers and judges to focus less on federal constitutional doctrine and look instead to state constitutions for help with legal puzzles.  That’s an idea that originated in the Northwest half-a-century ago, with the jurisprudence of former Oregon Supreme Court Justice Hans Linde.  It was a good idea then and it’s a good idea now.  State courts can never overrule federal decisions protecting federal constitutional rights; they can, however, interpret their own state constitutions to give more protection than does the federal Constitution.  There’s something bracing about this kind of judicial declaration of independence, when it is done properly.

Prior related posts:

• Washington Supreme Court strikes down state's death penalty based on its arbitrary administration
• Eager for a "51 Imperfect Solutions" approach to a new wave of constitutional proportionality litigation (with broadside Harmelin attacks, too)

Alice Marie Johnson urges Prez Trump to free "thousands more" federal prisoners like her

The now-famous, drug-dealer-serving-LWOP grandmother Alice Marie Johnson, who was granted clemency three months ago by Prez Donald Trump, has authored this lengthy new Fox News opinion piece headlined "President Trump freed me from prison – I’m glad he wants to give other nonviolent offenders their freedom."  Here are excerpts:

On June 6, I walked out of prison as a free woman after serving almost 22 years of my life sentence on a first-time nonviolent drug conviction, thanks to a decision by President Trump to commute my sentence to time served.  I was thrilled to hear the president say this week that he is looking to give early release to additional nonviolent prisoners like me....

I can never thank the president enough.  He heard my voice, gave life to my hope and promise to my future.  I am a 63-year-old grandmother who just wants to live in peace and enjoy my family.  There is zero chance I will ever break the law again....

Many other nonviolent offenders in federal prisons today are — like me — no danger to society, and I look forward to having President Trump and members of his administration examine their cases.  Many of these men and women have spent long years in prison and deserve to receive clemency or a commutation of their sentences from the president.

Freeing these offenders early would be an act of justice and mercy, as granting me my freedom was.  And early release would save taxpayers the cost of feeding and housing these people for years after they have paid their debt to society.

When President Obama began granting clemency to nonviolent offenders near the end of his presidency, he gave hope to thousands of people like me.  By 2016, I was 20 years into my life sentence.

My path to prison began at a time in my life when I faced some desperate choices.  I made a terrible decision to participate in a drug conspiracy — a decision I very much regret.

But during my two decades in prison, I accomplished an extraordinary rehabilitation — writing plays, volunteering in the prison hospice, becoming an ordained minister and mentoring to young women in prison.  By 2016 I was a new woman living a new life, even if it was a life I thought was destined to be lived only behind bars.

President Obama’s clemency initiative gave me hope.  I had been told not to hope, not to dream, because I would never be set free. As his presidency came to a close, President Obama began releasing hundreds of other nonviolent offenders, and I became sure I would be released as well.  My prison warden, captain, case manager and vocational training instructor all recommended I be granted clemency.

Unfortunately, I was left behind.  President Obama left office without giving me the chance to start a new life.  And I learned that putting your hope in one man is a mistake, because when that hope dies, you think all your hope has to die. When I received the denial letter from the Office of the Pardon Attorney, I was devastated.  I don’t know why my request was denied, because no explanation was given.  But that decision left me so disappointed.

My petition met all the criteria for clemency.  I had reformed my life in prison and I felt it should have been clear to anyone that I would contribute to society if I was released.  But President Obama left, President Trump arrived and I was told again to give up hope.  I didn’t.

I kept fighting for myself because I know that hearts can change, and no matter what administration is in power, you have to be willing to come to the table, sit down and talk about whether you can find common ground.

Thankfully, Jared Kushner and others working for President Trump have worked to keep clemency and criminal justice reform alive.  They can see that not every person who makes a mistake deserves for that mistake to define the rest of their life. They know that hope is important, but it must also be turned into meaningful change....

I did not leave prison bitter.  I love America and believe in the inherent goodness of the American people and the possibility of redemption.  Now it is President Trump who can make history if he takes the opportunity to go further than any president before him by giving second chances to thousands of people who just need someone to hear them.

The president has a power that the Constitution grants to him alone to both show mercy and deliver justice for people who were given excessively long sentences for crimes involving no violence.  The people who deserve to be freed are those who have long since recognized their mistakes and who have rehabilitated themselves during their time in prison.

I will never forget what President Trump did for me. He changed my life and gave me the opportunity to fulfill my potential, and now he has the chance to do the same for thousands more.

I find it interesting and encouraging that Ms. Johnson says there are "thousands more" federal prisoners like her and that she calls upon Prez Trump to "make history" by going "further than any president before" in the use of his clemency powers. To surpass Prez Obama here, Prez Trump would have to grant more than 1700 clemencies, and I know Ms. Johnson is not the only one who would like to see this happen.

"Unstitching Scarlet Letters? Prosecutorial Discretion and Expungement"

In this post last week, I noted a New York Times article headlined "Convicts Seeking to Clear Their Records Find More Prosecutors Willing to Help." A helpful reader made sure I also posted about this article on SSRN with the title of this post authored by Brian Murray. Here is its abstract:

Criminal record history information pejoratively brands those who contact the criminal justice system, whether they were guilty or not.  In theory, the remedy of expungement is designed to mitigate the unanticipated, negative effects of a criminal record.  But the reality is that prosecutors — driven by a set of incentives that are fundamentally antithetical to expungement — control many of the levers that determine who is able to obtain expungement.  The disjunction between the prosecutorial mindset and the minister of justice ideal could not be starker and the consequences can be significant. 

Prosecutors, as agents of the state, can either argue forcefully for the retention or deletion of such information, dramatically affecting the situation of an arrestee or ex-offender given the pervasive web of collateral consequences associated with a criminal record.  This discretion, as it relates to theories of punishment, prosecutorial discretion overall, the ethical responsibilities of prosecutors to do justice, and public policy interests, has been grossly under-analyzed despite the serious implications it has for the prosecutorial role within the criminal justice system and for reentry efforts. 

While many scholars have paid attention to how prosecutorial incentives conflict with the theoretical responsibilities of prosecutors in charging, plea-bargaining, and post-conviction situations involving innocence, none have provided a theoretical framework focused on the role of the prosecutor during expungement.  Many of the complicated incentives that undermine holistic prosecution during those earlier phases exist during the expungement process as well.  But scholarly responses to those incentives are not adequate given the range of considerations during the expungement phase.  As such, this Article argues that scholarly discussions related to prosecutorial discretion need to extend their focus beyond the exercise of prosecutorial judgment pre-trial or the questions of factual and legal guilt.

Given that the primary role of the prosecutor is to do “justice,” this Article calls for increased attention to the exercise of discretion after the guilt phase is complete, specifically in the context of expungement of non-conviction and conviction information.  In doing so, it hopes to provide a framework for exercising such discretion, and to initiate additional conversation about the role of prosecutors during the phases following arrest and prosecution.

Some prosecutors and some conservatives push back on momentum for federal criminal justice reforms

As highlighted via recent posts here and here, momentum seems to be picking up again for the passage of a version of the federal FIRST STEP Act that would reform federal prison practices and tweak federal sentencing rules.  Perhaps prompted by these realities, a new poll and new letter has emerged to push back on reform efforts. 

The poll comes from ORC International and was commissioned by the Foundation for Safeguarding Justice, a group which represents the National Association of Assistant U.S. Attorneys.  This press release reports on the heart of the poll:

A new survey of American adults, commissioned by the Foundation for Safeguarding Justice (FSJ), confirms that Americans overwhelmingly oppose sentencing and prison and “reforms” that would reduce federal criminal penalties for drug traffickers and allow the early release of prisoners to “home confinement.” Three out of four Americans surveyed (74 percent) said that they oppose proposals that reduce penalties for criminals involved in the trafficking of heroin, fentanyl, and similar drugs....

Public opposition to criminal leniency is deep across the American population and holds true regardless of race, gender, or party affiliation, the FSJ survey results (detailed below) show. The survey results represent an objective barometer of public opposition to criminal leniency for drug traffickers, in sharp contrast to the skewed results of a recent Kentucky poll touted by criminal leniency advocates....

The survey, conducted from September 13-16, 2018, interviewed 1,004 American adults, and was administered by ORC International, a nationwide polling firm. Full study results and methodology are available here.

Employing similar rhetoric and expressing similar concerns(and citing this poll), an assortment of conservative leaders have sent this letter to Prez Trump urging him to oppose FIRST STEP Act. Here is part of the letter:

Now, a leniency-industrial complex is urging you to support a bill that would reduce the sentences for federal drug traffickers, and allow large numbers of those same traffickers to “serve” their sentences outside prison in “home confinement.”

Mr. President, don’t do it. Trust your instincts. America seems, to many of us, to be plagued with different applications of justice. The public is losing faith in the rule of law and reforms are needed. But, here [we present] just four of many reasons why you should oppose this emerging new bill....

But this bill is not prison reform — it’s prison release. It’s not sentencing reform — it’s sentencing reductions. Contrary to what jailbreak supporters tell you, these policies are far from popular.  Proponents inadvertently acknowledge how unpopular their proposals are by disguising what they’re doing with buzzwords and abstract concepts.

Given how momentum for federal reform has built, slowly but surely, over much of 2018, I would be surprised if this new poll and letter significantly changes how important political players' are dancing with the FIRST STEP Act. But they both show that seemingly ever-growing consensus in support of federal reforms does not include everyone, and they also help highlight why even relatively modest reforms like the FIRST STEP Act can be a challenging political lift.

"The Pope and the Capital Juror"

The title of this post is the title of this new essay authored by Aliza Cover now available via SSRN. Here is its abstract:

Counterintuitively, the Pope’s recent announcement that the death penalty is impermissible in all circumstances may make death sentences easier to come by, at least in the short term.  The reason for this peculiarity is the “death qualification” of capital jurors — the process of questioning prospective jurors about their views on the death penalty and removing for cause those who are “substantially impaired” in their willingness to consider imposing a death verdict.

This Essay anticipates three problematic consequences of the Pope’s declaration, given a capital punishment system that relies on death-qualified juries.  First, prosecutors will likely be able to strike a greater number of death-averse jurors, thereby seating juries tilted in favor of death and obtaining death verdicts with greater ease.  Second, with more believing Catholics excluded from jury service, the representativeness — and hence the legitimacy — of capital juries will suffer.  Third, if the number of death verdicts rises with the ease of disqualification, one of the key “objective indicators” of “evolving standards of decency” will be skewed, registering more support for the death penalty despite — indeed, because of — societal movement against it.  The potential for these unexpected consequences to flow from a major pronouncement against the death penalty highlights how death qualification shapes and distorts the practice of capital punishment in our country.

Highlighting how constitutional problems with death penalty also apply to drug prohibitions

Over at Marijuana Moment, Kyle Jaeger in this post is quick to note interesting implications of key statements by the Washington Supreme Court in its big opinion yesterday striking down the state's death penalty as "unconstitutional, as administered, because it is imposed in an arbitrary and racially biased manner."  The post is titled "Successful Constitutional Case Against Death Penalty Works For War on Drugs, Too," and here are excerpts:

The movement to restore civil liberties and resolve systemic racial injustices in the criminal justice system scored a major victory on Thursday. And no, this time we’re not talking about ending the war on drugs.  Or at least not yet. Washington became the 20th state to abolish the death penalty, with the state Supreme Court ruling that capital punishment is unconstitutional because “it is imposed in an arbitrary and racially biased manner.”

If you’re already seeing parallels to arguments for ending drug prohibition, you’re not alone.  Many of the same points the court made in their ruling against the death penalty ring true for the war on drugs, too.  For example, the court argued that death sentences have been disproportionately carried out against black defendants, at a rate more than four times higher than it is for white defendants....

Similarly, drug reform advocates have long maintained that prohibition is racially discriminatory given disproportionate rates of enforcement and arrests for drug-related offenses.  Black Americans are nearly three times as likely to be arrested for a drug-related crime, compared to white Americans.  That’s in spite of the fact that rates of consumption are roughly equal among both groups...

The Washington court said another factor that contributed to their decision concerned “contemporary standards and experience in other states.” “We recognize local, national, and international trends that disfavor capital punishment more broadly.  When the death penalty is imposed in an arbitrary and racially biased manner, society’s standards of decency are even more offended.”

The parallel here couldn’t be more clear.  If such trends demonstrate a need to review and reform an existing law, the same rationale could theoretically apply to drug prohibition.  A majority of states have legalized cannabis for medical or adult-use, and national interest in changing federal marijuana laws has steadily grown in recent years.  Beyond marijuana, a broader drug reform push has included calls to abolish mandatory minimum sentences for non-violent drug offenses.

Of course, marijuana is already legal in Washington, and no other states have yet legalized drugs, so this part of the ruling’s applicability to a potential case seeking to strike down broad drug prohibition in the state might not be quite ripe yet.  While it’s unclear whether the constitutionality of prohibition could be reasonably challenged on similar legal grounds, the similarities are striking. 

The justification for capital punishment was another point of interest for the justices, who noted that the system failed to achieve its “penological goals” of “retribution and deterrence.”  For all intents and purposes, drug prohibition too has failed to achieve similar goals.  Decades of drug war have not appreciably deterred consumption.  From 2001 to 2013, the rate of marijuana use among American adults almost doubled, for instance.  The Cato Institute analyzed the impact of the drug war in a 2017 report. It concluded that prohibitionist policies “fail on practically every margin.”...

A last note from the Washington Supreme Court justices: “Under article I, section 14, we hold that Washington’s death penalty is unconstitutional, as administered, because it is imposed in an arbitrary and racially biased manner,” the justices wrote.  “Given the manner in which it is imposed, the death penalty also fails to serve any legitimate penological goals.”  Now swap “death penalty” with “drug prohibition” in that last quote.  Fits like a glove.

Prior related post:

• Washington Supreme Court strikes down state's death penalty based on its arbitrary administration 

Noting the latest data on use of solitary confinement in the US

This recent post at Reason, titled "U.S. Prisons Held At Lest 61,000 Inmates in Solitary Confinement Last Year," by C.J. Ciaramella reports on the latest accounting of extreme version of incarceration in the US. I recommend the full post, which starts this way:

The number of U.S. prison inmates held in solitary confinement has dropped over the past five years, according to a new report, but an estimated 61,000 people last year still faced imprisonment in tiny cells for up to 22 hours a day in conditions that many former inmates, mental health professionals, and at least one sitting U.S. Supreme Court justice say amount to torture.

A longitudinal survey co-authored by the Association of State Correctional Administrators (ASCA) and the Arthur Liman Center for Public Interest Law at Yale Law School found that, in the federal prison system and 43 state prison systems that provided data, 49,000 inmates in the fall of 2017 were confined to what is commonly known as "solitary." Extrapolating for the remaining states, the study estimates the total number to be 61,000.

The census asked jurisdictions to report, as of the fall of 2017, both their total prison populations and the number of prisoners held in restrictive housing. It includes federal and state inmates placed in any form of "restricted housing" for at least 22 hours a day for more than 15 consecutive days. In 2011, the United Nations Special Rapporteur on torture concluded that solitary confinement beyond 15 days constituted cruel and inhumane punishment.

Nationally, the use of solitary confinement appears to be dropping. In 2016, there were at least 67,000 inmates in solitary, according to the survey, and in 2014, there were 80,000 to 100,000. Those numbers are all self-reported by jails and prisons—there are no mandatory nationwide reporting requirements on solitary—and are very likely an undercount.

The study's authors attribute the reduction to stricter state requirements for when inmates can be sent to solitary and how long they may be kept there. Colorado, for instance, has almost completely eliminated its use of solitary confinement. The Obama administration also banned the use of solitary confinement for juveniles in the federal prison system and limited the amount of time adults can spend in solitary.  "But the picture is not uniform," the ASCA warned in a press release. "In more than two dozen states, the numbers of prisoners in restrictive housing decreased from 2016 to 2018, but in eleven states, the numbers went up."