Sentencing Law and Policy

"Canceling Compassion: Nonretroactivity and the Narrowing of Postconviction Relief in Federal Courts"

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

In 2018, Congress passed the First Step Act, which opened the door for incarcerated individuals to apply directly to district courts for release or a sentence reduction by way of compassionate release.  A form of postconviction relief, certain federal courts have narrowed the scope of eligibility for compassionate release based on a restrictive reading of what are “extraordinary and compelling” reasons for relief.  Specifically, these courts hold that nonretroactive changes in sentencing law cannot constitute such “extraordinary and compelling” reasons as a matter of law.  This article explores the now-intractable circuit split that has emerged on this issue, critiques the underlying non-textual motivations that have guided certain courts, and proposes an immediate resolution by the Supreme Court.  Yet the deep disagreement amongst the courts, which has precluded relief based solely on an individual’s geographic location, raises a further question: should courts be the sole arbiter of compassionate release?

Register for "Looking Ahead: Learning from Past Commission Leadership"

In this prior post, I noted the great weekly panel series that has been running through the month of May titled "The Role of the U.S. Sentencing Commission in Decarceration: First Step Act and Beyond."  This series has been put together by the Center for Justice and Human Dignity, a nonprofit organization whose mission is explained here in terms of seeking  "to reduce prison incarceration in the United States while improving conditions for those imprisoned and working inside."

This panel series concludes this coming Tuesday, May 24, at 12noon ET with a fourth and final panel titled "Looking Ahead: Learning from Past Commission Leadership." The discussion among former heads of the US Sentencing Commission and judges is especially timely given Prez Biden's nomination of seven new people to the US Sentencing Commission just earlier this month.  Everyone can and should register to attend this session (and review the entire series) here.  The speakers for all the panels have been terrific, and here are the folks participating in this last panel:

• Judge Patti B. Saris, District of Massachusetts
• Judge Ricardo Hinojosa, District Judge, Southern District of Texas 
• Retired Judge Nancy Gertner, District of Massachusetts, Senior Lecturer, Harvard Law School
• Judge William K. Sessions III, Senior District Judge, District of Vermont

I had the distinct pleasure of helping just a bit with this panel, and the opportunity to hear from former Chairs of the US Sentencing Commission should never be missed.

Prior related posts:

• Great panel series to explore “The Role of the U.S. Sentencing Commission in Decarceration: First Step Act and Beyond”
• Register for “Alternatives to Incarceration: Reducing Mass Incarceration in Federal Court” 
• Register for “State Sentencing Commissions Work Towards Decarceration” 
• Register for "Sentencing Review and Reduction: Open Questions and Next Steps for the Commission" 

Spotlighting the role of victims in advocating and advancing criminal justice refroms

This new Yahoo News article, headlined "Red states are enacting criminal justice reform at the urging of crime victims," is worth a full read. Here are excerpts from the lengthy piece:

In an effort to create the system of support he and others never had, [shooting victim Aswad] Thomas pivoted to a career where he could help other crime victims heal by joining Alliance for Safety and Justice (ASJ), a multistate public policy organization that promotes legislation on behalf of crime victims. The organization advocates for trauma centers in communities, less complicated probation laws and rehabilitation such as life skills programs and employment opportunities for the formerly incarcerated.

Since its founding in 2016, ASJ has won more than 50 campaigns tied directly to support for crime victims, including key wins in Republican-majority states that have been historically resistant to criminal justice reform....

These successes are a big reason why the CEO of ASJ, Jay Jordan, who spent eight years in prison for a robbery he committed in his teens, grimaces at the mention of criminal justice reform, instead calling it public safety — an important distinction that he says has garnered bipartisan support through the years.

“People often say, ‘Let's get tough on crime,’” Jordan told Yahoo News. “We say, ‘Let's get tough on safety.’ … We don’t see [states] as Republican or Democratic states. We see them as states where people live where people want to be safe.”...

In Ohio, India Brown, whose partner was murdered, was initially blocked from accessing victims’ compensation funds because of a previous teenage felony. Brown persuaded Gov. Mike DeWine and Attorney General Dave Yost, two Republicans, to fund trauma recovery centers and remove barriers to victims’ compensation. This would ensure that families have emotional support and financial stability. “I wrestled with unspeakable grief,” Brown wrote in an op-ed for the Columbus Dispatch.

And in Texas last summer, veteran Melvin Halsey, along with other crime victims, helped advocate for reform of the state’s probation system. Tens of thousands of Texans will no longer be sent back to prison for technical violations as a result. “Black people make up 13% of the population in Texas, but we’re 33% of the state’s incarcerated population,” Halsey wrote in an op-ed for the Austin American-Statesman last year. “A system that focuses on helping people rehabilitate ourselves rather than doling out harsh punishments is not only the right thing to do, it makes communities safer and saves Texas money too.”

"Paying for a Clean Record"

The title of this post is the title of this new paper authored by Amy Kimpel and just published in the Journal of Criminal Law & Criminology. Her is its abstract

Prosecutors and courts often charge a premium for the ability to avoid or erase a criminal conviction.  Defendants with means, who tend to be predominantly White, can often pay for a clean record.  But the indigent who are unable to pay, and are disproportionately Black and Brown, are saddled with the stigma of a criminal record.  Diversion and expungement are two popular reforms that were promulgated as ways to reduce the scale of the criminal legal system and mitigate the impact of mass criminalization.  Diversion allows a defendant to earn dismissal of a charge by satisfying conditions set by the prosecutor or court, thereby avoiding conviction.  Expungement seals or erases the defendant’s record of arrest or conviction.  Some diversion and expungement programs are cost-free, but most are not.  Yet a criminal record carries its own costs.  A criminal record can limit where an individual can live, go to school, and whether they receive public benefits.  As 93% of employers conduct background checks on job applicants, the inability to avoid a criminal record can create barriers to employment and the accumulation of wealth.  Costly diversion and expungement programs further calcify race and class divides, contributing to the construction of a permanent underclass.

This Article examines the promises and pitfalls of diversion and expungement as means to combat mass criminalization.  These two mechanisms work in tandem to provide access to a “clean record,” but not enough attention has been paid to the dangers they present due to differential access to clean records based on financial means.  This Article considers legal challenges to the current schemes and explains how requiring defendants to pay for a clean record enables courts and prosecutors to profit from the perpetuation of racial caste.  Ultimately, this Article argues that the impacts of diversion and expungement programs are more modest than reformers claim, and that these programs need to be offered at no cost if they are to succeed in achieving the goal of reducing racial disparities in our criminal courts and in society at large.

Notable new research report explores role of federal defense counsel type in case outcomes

I just came across this interesting new "research report" from the Urban Institute titled "Counsel Type in Federal Criminal Court Cases, 2015-18." The report was produced for the Bureau of Justice Statistics, and here is its abstract:

This paper examines the role that the type of defense counsel plays in federal justice system outcomes.  We begin with a background on federal indigent defense systems and a review of the prior research examining the impact of counsel type on sentencing.  We then describe the study and present our descriptive results, which explore the frequency and variation in the use of each type of defense counsel (public defenders, assigned counsel, and private attorneys) and other key variables (disposition, incarceration decision, sentence length, year, district, case, and defendant characteristics).  Next, we model the outcomes of incarceration and sentence length to test whether type of counsel significantly impacts these decisions after controlling for legal and extra-legal factors.  Lastly, the results are summarized and situated in a broader understanding of the federal justice system.

Here is a key paragraph from the report's conclusion:

Our study found that counsel type does vary across several key variables.  For example, defendants who utilize federal public defenders had higher rates of accepting a plea deal than those who were provided a CJA panel attorney or who retained a private attorney.  However, the findings from our regression models indicate that individuals represented by CJA panel attorneys and private counsel have 18-25% greater odds of being sent to prison once convicted than those represented by a federal public defender, controlling for numerous legal and extra-legal factors.  Likewise, individuals represented by private and CJA panel attorneys received 4-8% longer sentences than those who used a public defender.  Taken together, these findings suggest that federal public defenders are an important part of the federal courtroom workgroup with specific expertise in federal criminal cases and more familiarity with the judges and prosecutors.  As a result, federal public defenders may be more likely to encourage their clients to take plea deals but may also secure their clients favorable sentencing outcomes.

I find this research so very interesting for so many reasons.  Notably, one of my early academic articles written more than two decades ago and before the guidelines became advisory, titled "From Lawlessness to Too Much Law? Exploring the Risk of Disparity from Differences in Defense Counsel Under Guidelines Sentencing," focused on my concerns about the impact that different defense counsel can have on sentencing outcomes.

House Judiciary Subcommittee to hold oversight hearing on clemency and office of Pardon Attorney

As detailed at this official webpage, the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security is holding a hearing tomorrow titled "Oversight Hearing on Clemency and the Office of the Pardon Attorney."  Interestingly, as detailed via this witness list, Representative Ayanna Pressley will be the first witness.  This press release from Rep. Pressley's office may provide a preview of what she plans to talk about:

Today, Congresswoman Ayanna Pressley (MA-07), along with Congresswoman Mary Gay Scanlon (PA-05), Congressman David Joyce (OH-14), and Congressman Kelly Armstrong (ND-AL) urged Pardon Attorney Elizabeth Oyer to release disaggregated demographic data on the more than 17,000 pending clemency applications to better understand the current broken clemency process and address its impacts on constituents and communities....

In their letter, the lawmakers asked Pardon Attorney Oyer to provide a report by June 7, 2022 on all pending clemency applications detailing applicant demographic data, month and year of application submission, representation by an attorney, type of clemency request, type of relief sought, type of offense(s), and office currently reviewing application....

In December, Rep. Pressley, along with Representatives Cori Bush (MO-01), Hakeem Jeffries (NY-08) and grassroots advocates, unveiled the Fair and Independent Experts in Clemency (FIX Clemency) Act, historic legislation to transform our nation’s broken clemency system and address the mass incarceration crisis. 

This new Bloomberg piece, headlined "Lawmakers Press DOJ on Backlog of 17,000 Clemency Petitions," provides some context for this letter:

Some advocates for clemency say it can be used to address racial inequity in the criminal justice system. Black inmates account for 38.3% of the federal prison population, according to the Federal Bureau of Prisons, despite making up only 13% of the US population.

Between 2012 and 2016, Black men received 19.1% longer sentences for the same federal crimes as White men, according to a 2017 US Sentencing Commission report. Another 2017 report from National Registration of Exonerations found Black people are more likely to be wrongfully convicted than White people and receive longer sentences.

“Every application represents a person, a family, and a community,” the lawmakers wrote in the letter. “And every delayed response represents a miscarriage of justice, a dysfunctional process, and a policy failure in desperate need of repair.”

I suspect Rep. Pressley's testimony to start this oversight hearing could prove to be real interesting.  And, following here, the hearing schedule sets out this all-start set of witnesses:

• William “Bill” Underwood, Senior Fellow, The Sentencing Project
• Andrea James, Founder and Executive Director, The National Council for Incarcerated and Formerly Incarcerated Women and Girls
• Jason Hernandez, McKinney, Texas
• Nkechi Taifa, Founder, Principal and CEO, The Taifa Group LLC
• Rachel E. Barkow, Vice Dean and Charles Seligson Professor of Law, Faculty Director, Center on the Administration of Criminal Law NYU School of Law
• Mark Osler, Robert and Marion Short Distinguished Professor of Law, University of Saint Thomas School of Law
• D. Michael Hurst, Jr., Partner, Phelps Dunbar LLP
• The Honorable Morris Murray, Prosecuting Attorney, Defiance County, Ohio

UPDATE:  As of the morning of the hearing, one can find the written testimony of all the scheduled witnesses at this official House Judiciary webpage.  The testimony makes for interesting reads, though the professional history of the witnesses make what they have to say generally predictable.

"Criminal Law Exceptionalism"

The title of this post is the title of this new article on SSRN authored by Benjamin Levin.  Here is its abstract:

For over half a century, U.S. prison populations have ballooned and criminal codes have expanded.  In recent years, a growing awareness of mass incarceration and the harms of criminal law across lines of race and class has led to a backlash of anti-carceral commentary and social movement energy.  Academics and activists have adopted a critical posture, offering not only small-bore reforms, but full-fledged arguments for the abolition of prisons, police, and criminal legal institutions.  Where criminal law was once embraced by commentators as a catchall solution to social problems, increasingly it is being rejected, or at least questioned.  Instead of a space of moral clarity, the “criminal justice system” is frequently identified by critical scholars and activists as a space of racial subordination, widespread inequality, and rampant institutional violence.

In this Article, I applaud that critical turn.  But, I argue that, when taken seriously, contemporary critiques of the criminal system raise foundational questions about power and governance — issues that should transcend the civil/criminal divide and, in some cases, even the distinction between state and private action.  What if the problem with the criminal system isn’t exclusively its criminal-ness, but rather is the way in which it is embedded in and reflective of a set of problematic beliefs about how society should be structured and how people should be governed? What if the problems with criminal law are illustrative, rather than exceptional? Ultimately, I argue that the current moment should invite a de-exceptionalization of criminal law and a broader reckoning with the distributive consequences and punitive impulses that define the criminal system’s functioning — and, in turn, define so many other features of U.S. political economy beyond criminal law and its administration.

You be the judge: what federal sentence for former reality star Josh Duggar after child pornography convictions?

In this post back in December, I asked "How many years and counting might reality TV star Josh Duggar now get after federal jury convictions on two child pornography charges?," and I speculated that he could be looking at a federal guideline range of a decade or longer.   This month, sentencing memos were submitted ahead of Duggar's scheduled sentencing on May 25, and the start of the Government's 32-page Sentencing Memorandum notes the guideline calculation and the statutory ceiling in this matter, as well at the Government's sentencing recommendation:

U.S. Probation’s Case calculation under the United States Sentencing Guidelines (Guidelines) set out in the final PSR reflects an advisory range of imprisonment of 360 months to life, which will be capped by the offense maximum of 240 months set by statute for Count One in the Indictment....

Based on all the facts of the case, including Duggar’s prior sexual exploitation of multiple minors discussed herein, and in consideration of the extraordinary efforts Duggar took to obtain and view child sexual abuse material (CSAM), the nature of the CSAM he obtained and viewed, his efforts to conceal his criminal conduct, and his refusal to take accountability for or acknowledge any of his criminal conduct, the Government recommends the Court impose a guideline term of imprisonment of 240 months.

Defendant Duggar's Sentencing Memorandum and Motion for Downward Variance, which also runs 32 pages, concludes its introduction with a very different recommendation:

[W]hile he maintains his innocence and intends to exercise his right to an appeal, Duggar accepts that the crime for which he is being sentenced is serious and that this Court must impose a punishment.  But in crafting that punishment, Duggar asks that this Court consider this crime within its proper context and consider the person Duggar really is.  It is against this backdrop that Duggar respectfully requests that this Court sentence him to 60 months’ imprisonment as that is “sufficient, but not greater than necessary.” 18 U.S.C. § 3553(a).  As evidenced by his perfect performance on pretrial bond, no matter what sentence is ultimately imposed, this is a defendant who will never find himself before this, or any other, Court ever again and a defendant who will abide by whatever conditions of supervised release this Court imposes.

This lengthy Law & Crime article, headlined "Federal Prosecutors Urge Judge to Hand Josh Duggar Maximum Punishment for Downloading ‘Depraved’ Child Sexual Abuse Materials," provides some more context for the sentencing advocacy in this celebrity(?) case.

Prior related post:

• How many years and counting might reality TV star Josh Duggar now get after federal jury convictions on two child pornography charges?

US Sentencing Commission releases notable new report on recidivism rates for federal prisoners completing drug programs

The US Sentencing Commission today released this lengthy new report titled "Recidivism and Federal Bureau of Prisons Programs: Drug Program Participants Released in 2010." This report is the fifth in a series continuing the USSC's detailed examination of recidivism by federal offenders released in 2010.  This USSC webpage provides this brief account of the coverage and findings of the report:

In this report, the Commission provides an analysis of data on the recidivism of federal offenders who participated in Federal Bureau of Prisons (BOP) drug abuse treatment while incarcerated. The study examines whether completion of drug programs offered by the BOP impacted recidivism among a cohort of federal offenders who were released from prison in calendar year 2010. The report combines data regularly collected by the Commission, Federal Bureau of Investigation (FBI) criminal history records, and data on program completion and participation provided by the BOP.

In this report, Drug Program Participants were offenders who participated in one of the following programs:

• Residential Drug Abuse Program (RDAP)
  • The first group comprises 8,474 offenders who the BOP marked as eligible to participate in RDAP while serving time in BOP custody.
  • RDAP is the BOP’s “most intensive” drug treatment program and requires that participants receive treatment in a specialized unit that houses only RDAP participants
     
• Non-Residential Drug Abuse Program (NRDAP)
  • The second group comprises 4,446 offenders who were marked as eligible to participate in NRDAP.
  • NRDAP consists of drug treatment, conducted primarily in a group setting, over the course of 12 to 24 weeks.

  Key Findings

  This study observed a significant reduction in the likelihood of recidivism for offenders who completed the Residential Drug Abuse Treatment Program or the Non-Residential Drug Abuse Treatment Program.

  • RDAP Completers had lower rates of recidivism, compared to eligible offenders who did not complete or participate in the program. Less than half of RDAP Completers (48.2%) recidivated in the eight-year follow-up period of this study, compared to 68.0 percent of RDAP Eligible Non-Participants.
    • RDAP Completers were 27 percent less likely to recidivate compared to RDAP-Eligible Non-Participants.
    • RDAP Completers had higher post-release rates of drug-related recidivism, compared to RDAP Participants and RDAP Eligible Non-Participants.
  • NRDAP Completers had lower recidivism rates compared to offenders who did not complete or participate in the program. Nearly half (49.9%) of offenders who completed NRDAP recidivated during the study period, compared to over half (54.0%) of NRDAP Eligible Non-Participants.
    • NRDAP Completers were 17 percent less likely to recidivate compared to eligible non-participants and offenders with a history of substance abuse who served at least five months in BOP custody.

"Unequal Treatment: (In)compassionate Release from Federal Prison in the Context of the COVID-19 Pandemic and Vaccine"

The title of this post is the title of this new piece now available via SSRN authored by Mariah Haley. Here is its abstract:

COVID-19, the disease caused by SARS-CoV-2, has wreaked havoc globally since it was first discovered in December 2019.  In the United States, many federal prisons experienced outbreaks of the virus, leading to both severe illness and death.  Almost as soon as the pandemic began in the United States, people in prison — especially those with preexisting conditions — turned to the statutory mechanism known as “compassionate release” to request early release from prison based on the “extraordinary and compelling” nature of the pandemic.

This Note examines how federal courts have considered compassionate release requests during the pandemic.  The Note further explores the disparate outcomes resulting from the vast judicial discretion within the compassionate release space.  While no two compassionate release cases are the same, with cases very fact-intensive, this Note argues that the current system results in inequitable geographical-based outcomes.  In concluding, this Note calls on the United States Sentencing Commission to offer guidance to federal courts on how to approach compassionate release requests in the context of the First Step Act and the ongoing COVID-19 pandemic.

Will feds consider a capital prosecution of the racist Buffalo mass murderer?

A little less than seven years ago, I asked in this post whether the state of South Carolina or the feds (or both) would capitally prosecute racist mass murderer Dylann Storm Roof after he slaughtered nine people at a historic black church in Charleston.  The feds decided to take the lead pursuing and securing a federal death sentence for Roof, which he is currently appealing to the Supreme Court.

Sadly, this past weekend saw another horrific racist mass murder in Buffalo.  But this time, because New York does not have the death penalty, only the feds are in a position to pursue a capital prosecution.  This local article, headlined "Many paths possible in prosecution of man accused of slaying 10 at Tops," provides this account of the legal lay of the land:

The Erie County District Attorney's Office and federal prosecutors each will have the chance to prosecute the man accused of slaying 10 people and wounding three others in Saturday's hate-inspired attack in a predominantly Black neighborhood in Buffalo.

But there is no definitive answer yet on precisely what that process will look like. Payton S. Gendron, 18, already faces a state charge of first-degree murder for the massacre at the Tops Markets on Jefferson Avenue. Federal authorities have said they are investigating the mass killing "both as a hate crime and racially motivated violent extremism."

While New York State has no death penalty, the federal government does. A decision by federal prosecutors on whether to seek the death penalty is likely months away, according to veteran area defense attorneys.

Gendron can simultaneously face charges in both state and federal court, or one case can proceed before the other. Being charged in both state and federal courts would not violate the constitutional prohibition on "double jeopardy" because both levels of authority have jurisdiction at the same time, said Thomas J. Eoannou, a defense attorney who is not involved in representing Gendron. "The legal process will be very involved," Eoannou said, even though the evidence "appears, at this point, to be overwhelming."

If convicted of first-degree murder in state court, the maximum sentence Gendron faces is life in prison with no possibility of parole.... Gendron currently faces a murder count that encompasses all 10 victims who were killed, and county prosecutors are still evaluating potential options for what he may be charged with, the district attorney said....

It will be "fairly easy" for federal prosecutors to charge Gendron with a hate crime, based on the contents of his racist diatribe and what was written on the gun he used, defense attorney Paul J. Cambria Jr. said....

Some attorneys, including Eoannou and Joseph J. Terranova, said they expect the federal prosecution to happen first. A recent case similar to what happened here, Eoannou said, is that of Dylann Roof, who killed nine people at an historically Black church in Charleston, S.C., in 2015. Roof was first prosecuted federally and received the death penalty. Then he pleaded guilty in state court.

The decision on whether to seek the death penalty would come from U.S. Department of Justice officials in Washington, D.C., and a federal jury's decision to impose the death penalty would have to be unanimous, Eoannou said.

SCOTUS finally grants cert to clarify paths of federal collateral review based on 2241 (and savings clause of 2255)

The Supreme Court this morning issued an order list with lots of cert denials, but one cert grant that ought to interest sentencing fans.  Specifically, the Justices took up Jones v. Hendrix, No. 21-847, which concern the availability of collateral review by federal prisoners in federal courts.  Here is how SCOTUSblog briefly describes the issue in this case:

Whether federal inmates who did not — because established circuit precedent stood firmly against them — challenge their convictions on the ground that the statute of conviction did not criminalize their activity may apply for habeas relief under 28 U.S.C § 2241 after the Supreme Court later makes clear in a retroactively applicable decision that the circuit precedent was wrong and that they are legally innocent of the crime of conviction.

A review of the cert petition shows that Marcus DeAngelo Jones was sentenced to over 27 years in federal prison on gun charges back in 2000 and now wants to be able to press a claim based on Rehaif. Here is how this petition sets forth the question presented:

Under 28 U.S.C. § 2255, federal inmates can collaterally challenge their convictions on any ground cognizable on collateral review, with successive attacks limited to certain claims that indicate factual innocence or that rely on constitutional-law decisions made retroactive by this Court. 28 U.S.C. § 2255(h).  28 U.S.C. § 2255(e), however, also allows inmates to collaterally challenge their convictions outside this process through a traditional habeas action under 28 U.S.C. § 2241 whenever it “appears that the remedy by [§ 2255] motion is inadequate or ineffective to test the legality of [their] detention.”

The question presented is whether federal inmates who did not — because established circuit precedent stood firmly against them — challenge their convictions on the ground that the statute of conviction did not criminalize their activity may apply for habeas relief under § 2241 after this Court later makes clear in a retroactively applicable decision that the circuit precedent was wrong and that they are legally innocent of the crime of conviction.

The cert petition goes on to note that federal courts and commentators have been urging SCOTUS to take up this issue for many years because of the deep split in circuit jurisprudence.

"The Prosecutor Lobby"

The title of this post is the title of this new article on SSRN authored by Carissa Byrne Hessick, Ronald Wright and Jessica Pishko. Here is its abstract:

Prosecutors shape the use of the criminal law at many points during criminal proceedings, but there is also an earlier point in the process where prosecutors have influence: during the legislative process.  The conventional wisdom in the legal literature is that prosecutors are powerful and successful lobbyists who routinely support laws that make the criminal law more punitive and oppose criminal justice reform.  In this article, we test that narrative with an empirical assessment of prosecutor lobbying in America.  Using an original dataset of four years of legislative activity from all 50 states, we analyze how often prosecutors lobbied, the issues on which they lobbied, the positions they took, and how often they succeeded.

Our data tell a complex story of partial success for the prosecutor lobby.  Prosecutors are less successful than expected when lobbying against bills, and they are most successful when lobbying in favor of criminal justice reform.  By analyzing not only national data, but also data from each state, we document that prosecutorial success is correlated with Republican control of the state legislature.  We further conclude that perceived expertise does not drive prosecutorial lobbying success, and that legislatures in some contexts respond to the prosecutor lobby much as they would to any other self-interested rent-seeking lobbyists.

Register for "Sentencing Review and Reduction: Open Questions and Next Steps for the Commission"

In this prior post, I noted the great weekly panel series for the month of May titled "The Role of the U.S. Sentencing Commission in Decarceration: First Step Act and Beyond."  This series has been put together by the Center for Justice and Human Dignity, a nonprofit organization whose mission is explained here in terms of seeking  "to reduce prison incarceration in the United States while improving conditions for those imprisoned and working inside."

This panel series is running every Tuesdays in May at 12noon ET, which means the third panel is scheduled taking place this coming Tuesday, May 17th.  This panel is titled "Sentencing Review and Reduction: Open Questions and Next Steps for the Commission," and the discussion is especially timely given Prez Biden's nomination of seven people to the US Sentencing Commission just last week.  Everyone can and should register to attend next week's session and the entire series here.  The speakers for all the panels are terrific, and here are the folks participating in this latest panel:

Elizabeth Blackwood, Counsel & Director for the First Step Act Resource Center at the National Association of Criminal Defense Lawyer

Marisa Taney, Associate at Debevoise & Plimpton LLP, Holloway Project

I had the honor of helping to moderate the final panel, which airs next week, and it is titled Looking Ahead: Learning from Past Commission Leadership (Tuesday, May 24 12pm ET).

Prior related posts:

• Great panel series to explore "The Role of the U.S. Sentencing Commission in Decarceration: First Step Act and Beyond"
• Register for "Alternatives to Incarceration: Reducing Mass Incarceration in Federal Court" 
• Register for "State Sentencing Commissions Work Towards Decarceration" 

"Plea Bargaining’s Uncertainty Problem"

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

While commentators roundly condemn plea bargaining, the criticism can be as muddled as the practice itself.  Critics’ primary target is the “trial penalty.”  But a differential between guilty-plea and trial sentences seems inevitable in any system that allows defendants to concede guilt.  And, as a new wave of “progressive prosecutors” is demonstrating, gaps between (unusually lenient) plea offers and long (potential) post-trial sentences are not only a strong incentive to plead guilty but also a powerful tool for reducing American penal severity.  Other critiques point to flaws that parallel those found in the broader system, overlooking that plea bargaining is typically a reflection of these flaws, not their source.

Finding the traditional critiques lacking, this Article highlights uncertainty as the core problem with plea bargaining.  It is easy to overlook uncertainty because analysis of plea bargains usually focuses on cases after they have been resolved.  Yet from the perspective of someone accused of a crime who is deciding whether to plead guilty, uncertainty is key.  And while some uncertainty is inevitable, in many scenarios, plea bargaining turns the defendant’s choice into something resembling a floor bet at a Las Vegas casino — a solemn spectacle of plea-bargaining roulette.

Identifying uncertainty as plea bargaining’s distinct contribution to American dysfunction is important for two reasons. First, it provides a realistic blueprint for improving the largely unregulated plea-bargaining process — this country’s dominant mechanism for resolving criminal cases.  Second, by suggesting that plea bargaining is not the primary source of other important problems, like excess severity or wrongful convictions, the analysis helps to redirect reform efforts targeting those important problems to areas where they may be more effective.

Split Second Circuit panel debates required procedures for imposing more than a year when revoking supervised release

A helpful reader made sure I did not miss the interesting and lengthy Second Circuit panel discussion in US v. Peguero, No. 20-3798 (2d Cir. May 13, 2022) (available here).  The issue generating lengthy discussion in the case concerns the required procedures for revoking his term of supervised release.  Here is portion of the majority opinion: 

Although the issue was neither raised nor briefed by either party, the dissent asserts that Section 3583(e)(3), which allows a judge to revoke supervised release based upon a finding of new criminal conduct, is unconstitutional.  In particular, the dissent contends that a revocation hearing based on new conduct punishable by more than one year in prison violates a defendant’s right to indictment, right to confront witnesses, right to a jury trial, and right to remain free unless proven guilty beyond a reasonable doubt.  In support of this proposition, the dissent relies upon the “essential differences” between terms of probation or parole — which the dissent contends do not require such constitutional protections — and supervised release.  We respectfully disagree.

As an initial matter, the dissent’s proposed holding is contrary to our well-settled precedent, from which this panel is not free to deviate.  In addition to the requirement that we adhere to binding precedent, we conclude that the dissent’s approach is unsupported by the Constitution itself in light of the clear and direct connection between a supervised release term (and its accompanying conditions) and the original conviction and sentence.  Moreover, we are unpersuaded by the dissent’s contention that there are distinctive characteristics of a supervised release revocation proceeding, as compared to parole and probation, that would justify the differing constitutional protections the dissent proposes. Finally, we believe that the dissent’s proposed rule would have a drastic and devastating impact on the effective functioning of the criminal justice system.

The dissent by Judge Underhill starts this way:

Carlos Peguero was sentenced to twenty-eight months in federal prison for criminal conduct proscribed by the State of New York.  Peguero was not federally indicted for the felony crime of assault, was denied the right to confront witnesses against him, was never advised of his right to a jury trial, and was found “guilty” by a preponderance of the evidence.  In short, Peguero was imprisoned without being afforded any of the fundamental Constitutional rights that protect citizens from arbitrary imprisonment by the government.

I acknowledge that the district court acted consistently with existing precedent of this Court, and that the majority feels constrained to follow that precedent and to affirm.  Importantly, however, no decision of the Supreme Court or this Court has ever analyzed whether a person on supervised release facing violation charges punishable by more than one year in prison has a right to indictment on those charges.  Nor has either Court ever held that proceedings that require indictment do not constitute a “prosecution” and therefore can be decided without affording the accused his Sixth Amendment rights.  Because this appeal raises Confrontation Clause issues, and because I conclude that Peguero had the right to be indicted for his claimed supervised release violations, I further conclude that he had the right to confront witnesses against him.  In my view, prior decisions allowing a judge to sentence a person to prison for more than a year based on a violation of supervised release without providing such essential Constitutional protections are misguided and based on unsupportable legal fictions.  Accordingly, I respectfully dissent.

Federal prison population up a lot more than another 1,500 persons in a little more than a month

Regular readers are now used to my regular monthly posts about the federal prison population based on Bureau of Prison data.  These posts of late have regularly noted significant and steady population growth in recent months  In this post on March 18, I noted that the federal prison population had grown by over 1,100 persons in just four weeks from mid February and mid March.  And this post on April 8 noted that it then took only three weeks for another 1000+ person surge of federal prisoners between mid March and early April. 

The federal Bureau of Prisons now has updated reporting of "Total Federal Inmates" as of May 12, 2022, and these basic growth trends are continuing.  As of April 7, 2022, the official BOP count was at 155,274, but now as of May 12, the total number of federal inmates is at 156,939.  So, in just the last five weeks, there has been another 1,655 more federal prisoners added to the population compared to the total in early April.  If this pace of federal prison growth continues in coming months, it is quite possible that 2022 could experience a level of federal incarceration growth we have not seen in decades. 

As I have said before, I am inclined to guess that this recent spike in the number of federal prisoners reflects some "return to normal" operations for the federal criminal justice system, with fewer COVID-related delays in cases and prison admissions (and fewer COVID-related releases).  Such a development (especially after 2021 being a year of notable federal prison population growth) would be particularly significant given that candidate Joe Biden promised to "take bold action to reduce our prison population" and to "broadly use his clemency power for certain non-violent and drug crimes."   To his credit, since my last posting on prison population, Prez Biden did grant 75 commutation to federal inmates (most of whom were already serving their time on home confinement).  But a one-time grant of 75 clemencies necessarily looks somewhat paltry in the face of week-over-week-over-week-over-week federal prison population growth averaging more than 300 persons.

Spotlighting ever longer stays on death row before executions

NPR has this lengthy new piece headlined "U.S. inmates condemned to die are spending more time on death row." I recommend the full piece, and here are excerpts from the beginning:

After spending decades on Arizona's death row, Clarence Dixon was executed on Wednesday for the 1978 murder of Deana Bowdoin.  At 66 years old, Dixon is just the most recent example of the growing population of aging inmates on America's death row.

"We're seeing death sentences near record lows. We're seeing executions at near record lows," Robert Dunham, the executive director of the Death Penalty Information Center, told NPR. "There are fewer and fewer people on death row overall and the ones who remain on death row have been there longer."...

The average time between sentencing and execution has increased by two-thirds in the past 20 years — from 11.4 years in 2000 to 18.9 years in 2020, according to the most recent available data from the Bureau of Justice Statistics.  Experts who spoke to NPR said this trend is due, in part, to changed opinions on capital punishment in the U.S., and a lengthier appeals process that delay executions.

For victims' families and these inmates, waiting decades to see their cases resolved takes its toll.  Some experts say 20 to 40 years on death row at the literal expense of the state raises questions of fair treatment of prisoners....

As of 2020, the average age of death row inmates nationally was 52 years old, according to the Bureau of Justice Statistics.  More than 56% were white, 41% were Black. Men made up the majority of those prisoners — about 98%.

New Sentencing Project fact sheet highlights rise (and recent declines) in the incarceration of women and girls

The folks at The Sentencing Project have assembled some fascinating data on the number of incarcerated women at this site and in this fact sheet. Here is part of their description of the fact sheet:

Between 1980 and 2020, the number of incarcerated women increased by more than 475%, rising from a total of 26,326 in 1980 to 152,854 in 2020.  The total count in 2020 represents a 30% reduction from the prior year — a substantial but insufficient downsizing in response to the COVID-19 pandemic, which some states began to reverse in 2021.

Research on female incarceration is critical to understanding the full consequences of mass incarceration and to unraveling the policies and practices that lead to their criminalization. The number of incarcerated women was nearly five times higher in 2020 than in 1980.

Incarcerated Women and Girls examines female incarceration trends and finds areas of both concern and hope.  While the imprisonment rate for African American women was nearly twice that of white women in 2020, this disparity represents a sharp decline from 2000 when Black women were six times as likely to be imprisoned.  Since then Black women’s imprisonment rate has decreased by 68% while white women’s rate has increased by 12%.

Similar to adults, girls of color are more likely to be incarcerated than white girls.  Tribal girls are more than four times as likely, and African American girls are more than three times as likely as white girls to be incarcerated.

All the data in the fact sheet are fascinating, and these particular data points really caught my attention:

• The rate of imprisonment for Black and Latinx women has declined since 2000, while the rate of imprisonment for white women has increased.

• Between 2000 and 2020, the rate of imprisonment in state and federal prisons declined by 68% for Black women, while the rate of imprisonment for white women rose by 12%....

• Women in state prisons are more likely than men to be incarcerated for a drug or property offense. Twenty-six percent of women in prison have been convicted of a drug offense, compared to 13% of men in prison; 23% of incarcerated women have been convicted of a property crime, compared to 15% among incarcerated men.

• The proportion of imprisoned women convicted of a drug offense has increased from 12% in 1986 to 26% in 2019.

"Race-Norming and Statistical Discrimination: Beyond the NFL"

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

This Article uses the recent NFL “race-norming” scandal — in which Black players with concussion claims were scored differently on cognitive impairment tests, based on the assumption that they were less intelligent at baseline—  as an entry point to a broad-ranging analysis of inconsistencies in the law’s treatment of statistical discrimination.  The Supreme Court has emphatically and repeatedly rejected efforts to justify otherwise-illegal discrimination against individuals by resort to statistical generalizations about groups. This doctrine makes practices like the NFL’s not just repugnant, but illegal — yet such practices are pervasive and persistent, in high-stakes settings far beyond the NFL.  Similar race-norming in diagnostic algorithms is ubiquitous in medicine, for example, but has avoided legal scrutiny.  Moreover, the justice system itself has embraced numerous similar practices, including demographic norming of intellectual-capacity assessments for defendants facing the death penalty, explicit class-based discrimination in criminal justice risk assessments, and the use of race- and sex-specific actuarial data to calculate tort damages.  This Article examines these practices, the law governing them, and the reasons for these disconnects between law and practice.