Sentencing Law and Policy

US Sentencing Commission published proposed amendment, including a big change to determining a "crime of violence"

As reported in this press release, the "United States Sentencing Commission voted today to publish for comment proposed amendments to the federal sentencing guidelines, including a proposal concerning how sentencing courts determine if a prior conviction is a “crime of violence” under the guidelines."  Here is more:

At a public meeting, Circuit Judge William H. Pryor Jr., the Acting Chair of the Commission remarked, “The ‘crime of violence’ definition continues to cause extensive litigation with inconsistent sentencing outcomes, often resulting in offenders whose conduct is obviously violent in nature failing to qualify for sentencing enhancements. These results are particularly troublesome given the risk to public safety posed by violent offenders.”

The sentencing guidelines provide increased penalties for offenders with a prior conviction that is a “crime of violence” or “controlled substance offense” (e.g., the career offender guideline). Under the guidelines, the sentencing court must determine whether a prior conviction falls into either of those categories. Circuit caselaw currently limits the sentencing court’s analysis of the prior conviction to the elements of the statute of conviction (referred to as the “categorical approach”), without any consideration of the defendant’s actual conduct in the offense. Today’s proposed amendment would enable the sentencing courts to consider the conduct that formed the basis of the offense of conviction as well as the elements of the statute of conviction. The Commission is requesting input on this proposal and the appropriate sources of information the courts might use to ensure that clear and reliable evidence of prior violent conduct is accounted for at sentencing.

The Commission also published a proposal to clarify the definition of certain enumerated offenses and provide clearer guidance how to treat inchoate offenses in determining whether an offense is a crime of violence.  The proposed amendment addresses specific application issues and general concerns raised by the Department of Justice in their August 2018 annual letter to the Commission.

The Commission is finalizing a study in which it found that violent federal offenders recidivate much more often, more quickly, and commit more serious offenses than non-violent federal offenders.  The Commission expects to publish its full findings and other reports on revocations and mandatory minimum penalties in early 2019 (view related studies).

Acting Chair Pryor also provided an update at the meeting on the Commission’s top priority this amendment cycle — examining the current federal sentencing system and operation of .... the guidelines.  In the coming weeks, the Commission will release a report comparing federal judges’ sentencing practices within 30 major metropolitan U.S. cities.  “These findings raise important questions about the advisory guidelines system. We need to study and consider new approaches that more adequately achieve the goals of the Sentencing Reform Act—including the goal of avoiding unwarranted sentencing disparity — within the constitutional parameters set forth by the Supreme Court in Booker,” stated Acting Chair Pryor.

In light of the Supreme Court’s decision in Koons v. United States and recent circuit conflicts, the Commission also proposed revisions to how retroactive sentence reductions are determined when mandatory minimum penalties are present in the case. The Commission also published several proposed amendments responding to recently enacted legislation.

These proposed amendment could prove to be quite consequential if they become actual amendments, but the press release further explains why the USSC may not have a quorum to start the new year and will need to have new confirmed members quickly to be able to complete  official business (my emphasis added):

Today’s public meeting gave the current commissioners the opportunity to work together for the last time, as the terms of Acting Chair Pryor and Commissioner Rachel E. Barkow expire at the end of the 115th Congress.  “I have had the privilege of working alongside Commissioner Barkow since she was confirmed by the Senate five years ago. Her steadfast commitment to fair sentencing and quick ability to process sentencing data served the Commission and the public well,” said Acting Chair Pryor.  “She has made substantial contributions to the work of the Commission.  I will miss her.”

Acting Chair Pryor also thanked the advisory group members whose terms are expiring, including Ronald Levine, Chair of the Practitioners Advisory Group and T. Michael Andrews, Chair of the Victims Advisory Group.

As the terms of Acting Chair Pryor and Commissioner Barkow expire, two voting commissioners will continue to serve terms (Senior District Judge Charles R. Breyer and District Judge Danny C. Reeves).  The Commission must have at least four voting commissioners for a quorum. At least three of the commissioners must be federal judges and no more than four may belong to the same political party.  Commissioner Patricia K. Cushwa (ex officio, U.S. Parole Commission), and Commissioner David Rybicki (ex officio, U.S. Department of Justice) serve as non-voting members.

Six former governors urge outgoing California Gov Jerry Brown to commute 740 death sentences

This new opinion piece in the New York Times is authored by six former governors and is headlined "Jerry Brown Has the Power to Save 740 Lives. He Should Use It."  Th2 headline is itself a bit factually misleading because none of the persons on California's death row seem at risk of being executed anytime soon.  There has not been a single execution in California in more than a dozen years, and the next Governor seems unlikely to be eager to start up the state's machinery of death anytime soon.   Still, the six former governors — Richard Celeste of Ohio, John Kitzhaber of Oregon, Martin O’Malley of Maryland, Bill Richardson of New Mexico, Pat Quinn of Illinois, and Toney Anaya of New Mexico — make a notable pitch and here are excerpts:

Among a governor’s many powers, none is more significant than signing a death warrant. It’s a terrible responsibility, hard even to imagine until you’re asked to carry it out, as we were. But we became convinced that it wasn’t something a civilized society should ask of its leaders. That’s why we halted executions in our states, and we call on Gov. Jerry Brown of California to do the same.... [W]e know it must weigh on Mr. Brown that, unless he acts soon, he will leave behind 740 men and women on California’s death row. It’s a staggering number and our hearts go out to him. From a humanitarian perspective, it is horrifying to imagine executing that many humans. As a practical matter, it’s beyond comprehension.

Even the most ardent proponents of capital punishment would shudder at composing a plan to execute 740 people. Would California’s citizens allow mass executions? If the state were to execute a single person every day, people would still be waiting on death row after two years....

Since the death penalty was reinstated in the United States in 1976, 11 governors have granted clemency to death row prisoners in their states. They did not free them; they either reduced their sentences to life, declared a moratorium on executions or repealed their death penalty. We have all done one of these; so have Gov. George Ryan of Illinois in 2003; Gov. Jon Corzine of New Jersey in 2007; Gov. Dannel Malloy of Connecticut in 2012; Gov. Jay Inslee of Washington in 2014; and Gov. Tom Wolf of Pennsylvania in 2015.

The achievement of high office demands that one be courageous in leadership. Mr. Brown now has the chance to do what others in our ranks have done after they became aware of the price paid for taking a human life. We were compelled to act because we have come to believe the death penalty is an expensive, error-prone and racist system, and also because our morality and our sense of decency demanded it.

Mr. Brown has the power to commute the sentences of 740 men and women, to save 740 lives. Or, he can declare a moratorium on the death penalty and give Governor-elect Gavin Newsom the time he will need to figure out how to end a system broken beyond repair. Such an act will take political will and moral clarity, both of which Mr. Brown has demonstrated in the past. In the interest of his legacy, the people of California need his leadership one more time before he leaves office.

Latest developments and discussions surrounding FIRST (baby) STEP Act

Yesterday, the Senate Judiciary released this press statement titled "Senate & House Lawmakers Release Updated First Step Act."   Here are key passages and links from the release:

A bipartisan, bicameral group of lawmakers today released revised text of the First Step Act to continue building support for criminal justice reform. This update was brokered by the White House and a bipartisan group of lawmakers in both chambers of Congress. Majority Leader Mitch McConnell and Speaker Paul Ryan have pledged to take up the revised package before the end of the year....

The revised legislation further clarifies eligibility for earned time credits following successful completion of evidence-based recidivism reduction programs, and expands on the existing list of disqualifying offenses. The changes address points raised by some law enforcement groups and provides for additional transparency in the Bureau of Prisons’ risk assessment framework.  A summary of the update can be found HERE.  Text is available HERE.

The First Step Act is endorsed by President Trump and cosponsored by more than a third of the Senate, evenly balanced among Democrats and Republicans. The recent updates to the bill have garnered the support of additional senators in recent days, including Senators Thom Tillis, Ted Cruz, David Perdue and John Cornyn....

The First Step Act is backed by a number of law enforcement groups, including the nation’s largest police group. It’s also supported by 172 former federal prosecutors including two former Republican U.S. attorneys general, two former deputy attorneys general and a former director of the FBI along with sheriffs from 34 states across the country. The National Governor’s Association, which represents the governors of all 50 states, praised the bill. A broad coalition of conservative and progressive groups along with a host of business leaders and faith-based organizations also support the First Step Act.

As the title of this post indicates, I am tempted to rename the FIRST STEP Act the First Baby Step Act because all of the latest carve outs in the latest version of the bill have made an already watered-down reform effort even more watery. But, because even a baby step is still so much better than no step at all, I remain very excited about the FIRST STEP Act and hope to be able to officially celebrate its enactment in the coming weeks.

And, of course, Senator Tom Cotton is not eager to go down without a fight here, and the press is rightly talking about his prominent role in the debate over this bill.  Here is a sampling of recent coverage:

• "Cotton to demand vote in effort to further restrict criminal justice system overhaul"

• "Tom Cotton Pulls Out a Shank in Prison Reform Debate"

• "Is Tom Cotton’s winning streak about to end?"

"An Unappreciated Constraint on the President's Pardon Power"

The title of this post is the title of this notable and timely new article authored by Aaron Rappaport now available via SSRN. Here is its abstract:

Most commentators assume that, except for the few textual limitations mentioned in the U.S. Constitution, the President’s pardon power is effectively unlimited.  This paper suggests that this common view is mistaken in at least one unexpected way: Presidential pardons must satisfy a specificity requirement.  That is, to be valid, the pardon must list the specific crimes insulated from criminal liability.

This claim bears a significant burden of persuasion, since it runs so counter to accepted opinion.  Nonetheless, that burden can be met.  The paper’s argument rests on an originalist understanding of the Constitution’s text, an approach that leaves little doubt that a specificity requirement is an implicit limitation on the President’s pardon power.  It also demonstrates that the main objections to the argument — that the requirement runs contrary to the Constitutional text or historical practice – are misguided and unpersuasive.

Of course, even if a specificity requirement exists, one may wonder about its significance.  After all, the requirement does not prevent a President from issuing a pardon to any person or for any crime.  Nonetheless, as the paper explains, a specificity requirement may prove more powerful than it first appears.  Most importantly, it both limits the scope and raises the cost of issuing pardons for criminal violations, including violations of the electoral process.  In so doing, the specificity requirement serves as an unexpected ally in the fight for political accountability and in defense of the rule of law.

Noting possible Miller follow-up cases on the latest SCOTUS relist list

I continue to wonder when the Supreme Court will take up a new case to clarify (or, ideally, extend) its Eighth Amendment jurisprudence limiting extreme prison sentences set forth in Graham and Miller.  The latest Relist Watch from John Elwood at SCOTUSblog spotlights a few cases that might be in the works as the next possible Miller follow-up:

Newton v. Indiana, 17-1511, and Mathena v. Malvo, 18-217, both raise the same issue involving the lawfulness of imposing a discretionary life sentence on a juvenile offender. In Miller v. Alabama, the Supreme Court held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’”  Four years later, in Montgomery v. Louisiana, the court held that “Miller announced a substantive rule of constitutional law” that must be given retroactive effect in cases in which direct review was complete when Miller was decided.  Numerous state courts and the U.S. Court of Appeals for the 4th Circuit have held that Montgomery expanded the prohibition against “mandatory life without parole for those under 18 at the time of their crimes” to include discretionary life sentences as well; other courts have concluded that Montgomery did no such thing.  Petitioner Larry Newton, a prisoner, and Randall Mathena, the chief warden of Virginia’s high-security Red Onion State Prison, seek resolution of the issue.

As an aside, the respondent in Mathena v. Malvo will be familiar to anyone who lived in the D.C. area in fall 2002. When he was 17 years old, Lee Boyd Malvo, along with the much older John Allen Muhammad, committed a series of murders known as the “D.C. sniper” attacks. Currently, Malvo is serving multiple life sentences at Red Onion for his role as the triggerman in 10 of the shootings (Virginia executed Muhammad in 2009.).

Because the next SCOTUS conference is not until January 4, we will not know anything more on this front until next year.

Michael Cohen sentenced to three years in federal prison ... and joins ranks rooting hard for passage of the FIRST STEP Act

As predicted by some, Prez Trump's former lawyer Michael Cohen received a below-guideline and below-the-prosecutor-recommended sentence today from US District Judge William Pauley in New York City.  This Fox News report, headlined "Michael Cohen, former Trump attorney, gets 3 years in prison for tax fraud, campaign finance violations, lying," provides these details:

Michael Cohen, the president’s former fixer who once famously claimed he was willing to "take a bullet" for Donald Trump before later turning against his boss, was sentenced to three years in prison Wednesday by a federal judge in New York after pleading guilty to numerous crimes while cooperating with prosecutors.

Before sentencing, Cohen ripped into his former boss in federal court, telling the judge he felt it was his duty to cover up the president's “dirty deeds.”

Cohen appeared before U.S. District Judge William Pauley III for sentencing after pleading guilty to campaign finance violations, tax evasion and lying to Congress about Trump’s past business dealings in Russia. He was seen entering the Manhattan courthouse Wednesday accompanied by members of his family.  Speaking in court before the judge issued the sentence, Cohen said “blind loyalty” to Trump led him “to take a path of darkness instead of light.”

Cohen doesn't have to report to prison until March 6.  He also was ordered to pay $1.4 million in restitution and a $50,000 fine, and forfeit $500,000.

A contrite Cohen, speaking in court, told the judge he takes “full responsibility for each act,” saying the “sooner I am sentenced, the sooner I can return to my family." Cohen also apologized to the people of the United States, saying, "You deserve to know the truth."...

Trump has lashed out at Cohen over his cooperation with prosecutors, recently saying Cohen “lied” and deserves to “serve a full and complete sentence.” A sentencing memo filed by prosecutors said Cohen “acted in coordination and at the direction of” Trump in making those payments.” But in a tweet this week, Trump denied the payments to Daniels and McDougal were campaign contributions, instead calling them a “simple private transaction.” Trump also said if mistakes were made, the “liability” should be with Cohen, his lawyer, and not him. “Cohen just trying to get his sentence reduced,” the president tweeted Monday.

As the title of this post is meant to highlight, among the notable features of Cohen's federal prosecution and sentencing is that it has taken place during the same period that Congress has been debating significant prison reform measures in the FIRST STEP Act.  Assuming the FIRST STEP Act becomes law and is being effectively implemented before Cohen has to report to prison in March, it seems quite likely that some of the provisions in the FIRST STEP Act may enable Cohen to return to his family at least a bit sooner.  Indeed, Cohen may be an especially good high-profile offender to follow to see how much he is able to benefit from any new prison reforms.

Prior related posts:

• Michael Cohen, Prez Trump's fixer, cuts a plea deal to fix his federal sentence between 46 to 63 months in federal prison
• Prez Trump advocating for a whole new kind of sentencing reform: he says cooperation deals "almost ought to be outlawed. It’s not fair." 
• Michael Cohen, former lawyer to Prez trump, pleads guilty to lying to Congress 
• Michael Cohen makes pitch for "time-served and restitution to the IRS" based largely on his continuing cooperation
• Feds request for Michael Cohen a "substantial term of imprisonment" though with a "modest downward variance" from Guideline range of 51-63 months in prison 

Prison Policy Initiative produces "Correctional Control 2018: Incarceration and supervision by state"

The fine folks at the Prison Policy Initiative a few years ago produced this first version of a report that sought to aggregate "data on all of the kinds of correctional control: federal prisons, state prisons, local jails, juvenile incarceration, civil commitment, Indian Country jails, parole and, lastly but importantly, probation."  PPI's latest version of this report, now called "Correctional Control 2018: Incarceration and supervision by state," gets started this way:

The U.S. has a staggering 2.3 million people behind bars, but even this number doesn’t capture the true scale of our correctional system.  For a complete picture of our criminal justice system, it’s more accurate to look at the 6.7 million people under correctional control, which includes not only incarceration but also probation and parole.

The vast majority of people under correctional control are on probation and parole, collectively known as community supervision (or community corrections).  An estimated 4.5 million adults are under community supervision, nearly twice the number of people who are incarcerated in jails and prisons combined. Yet despite the massive number of people under their control, parole and probation have not received nearly as much attention as incarceration.  Only with recent high-profile cases (such as rapper Meek Mill’s probation revocation) has the public begun to recognize the injustices plaguing probation and parole systems, which set people up to fail with long supervision terms, onerous restrictions, and constant scrutiny.  Touted as alternatives to incarceration, these systems often impose conditions that make it difficult for people to succeed, and therefore end up channeling people into prisons and jails.

Understanding correctional control beyond incarceration gives us a more accurate and complete picture of punishment in the United States, showing the expansive reach of our criminal justice system.  This is especially true at the state level, as some of the states that are the least likely to send someone to prison are the most likely to put them under community supervision.  Given that most criminal justice reform will need to happen at the state and local levels, it is crucial for states to assess not only their incarceration rates, but whether their “alternatives” to incarceration are working as intended.

For this report, we compiled data on each state’s various systems of correctional control to help advocates and policymakers prioritize targets for reform.  This report includes data on federal prisons, state prisons, local jails, juvenile confinement, involuntary commitment, Indian Country jails, parole, and probation. We make the data accessible in one nationwide chart and 100 state-specific pie charts.  In this update to our original 2016 report, we pay particular attention to the harms of probation and parole, and discuss how these systems might be reworked into more meaningful alternatives to incarceration.

Any recommendations or predictions for Michael Cohen's upcoming sentencing?

Prez Trump's former lawyer, Michael Cohen, is scheduled to be sentenced by US District Judge William Pauley in New York City on December 12 after his guilty plea to charges including campaign finance fraud and lying to Congress.  As detailed in prior posts linked below, Cohen is asking for "time served," while federal prosecutors seek a "substantial term of imprisonment" of around 3.5 years.  This lengthy CNN commentary by Elie Honig, headlined "Why sentencing judge may not show Cohen 'mercy'," predicts that prosecutors are more likely to be happy with the outcome than Cohen.  Here are excerpts:

First, what sentence is Judge William Pauley likely to impose? I've appeared in front of Judge Pauley in many cases. He is fair but tough. Lawyers and defendants often find him intimidating. He has administered tongue-lashings to many prosecutors (yes, including me), defense attorneys and litigants. He has a serious, formal demeanor on the bench....

In my experience, Judge Pauley is a stern sentencer, particularly where the defendant has exploited a position of authority and acted out of greed or arrogance. The SDNY prosecutors, clearly aware of this tendency, noted in its sentencing memo last week that Cohen, "an attorney and businessman ... was motivated to do so [commit crimes] by personal greed, and repeatedly used his power and influence for deceptive ends."

Judge Pauley can show mercy to a truly unfortunate or disadvantaged defendant, but he does not usually take kindly to abuse of power. Under the federal sentencing guidelines, the SDNY argues that Cohen faces a sentencing range of 51 to 63 months.  The federal guidelines are based on a chart: one axis reflects the defendant's prior criminal history (for Cohen, none) while the other reflects the seriousness of the offenses (for Cohen, fairly serious -- offense level 24 out of a maximum of 43).  The range is not binding but it is important. Judge Pauley must consider the range, but he can sentence within, above or below it at his discretion....

Judge Pauley likely will give Cohen some credit for providing useful information to Mueller, but almost certainly won't let Cohen walk, given the SDNY's tepid support for only a modest reduction....

The big question then is whether Cohen will continue cooperating after sentencing. Cohen vows in his sentencing memo that he will. However, once he has been sentenced, his incentive to cooperate diminishes.

There is a mechanism in the federal rules -- Rule 35 -- that permits the prosecutor to ask the judge for a reduced sentence if the defendant provides valuable cooperation after his original sentence was imposed. If Cohen receives a sentence that he simply cannot bear, he will be highly motivated to continue providing assistance to Mueller, and perhaps to come clean on previously undisclosed topics, in hopes of earning an eventual Rule 35 motion.  Paradoxically then, the more time Cohen gets on Wednesday, the more likely he may be to cooperate fully with Mueller as the investigation builds to a crescendo.

The stakes on Wednesday undoubtedly will be high for Cohen and for his ability and incentive to cooperate moving forward.  Cohen's future cooperation, in turn, will affect Mueller's ability to penetrate into the heart of corruption in the Trump campaign and the White House.

In a discussion with a member of the media, I predicted that Cohen would get a sentence in the 2.5 to 3 year range. I am incline to stick with that prediction for now, though I would like to hear reader predictions of what they Judge Pauley will do at sentencing or even recommendations as to what they think Judge Pauley should do at sentencing.

Prior related posts:

• Michael Cohen, Prez Trump's fixer, cuts a plea deal to fix his federal sentence between 46 to 63 months in federal prison
• Prez Trump advocating for a whole new kind of sentencing reform: he says cooperation deals "almost ought to be outlawed. It’s not fair." 
• Michael Cohen, former lawyer to Prez trump, pleads guilty to lying to Congress 
• Michael Cohen makes pitch for "time-served and restitution to the IRS" based largely on his continuing cooperation
• Feds request for Michael Cohen a "substantial term of imprisonment" though with a "modest downward variance" from Guideline range of 51-63 months in prison 

Michael Flynn in sentencing memo requests probation "not to exceed one year ... along with 200 hours of community service."

As reported in this Politico article, headlined "Flynn pleads with judge for no jail time," a high-profile defendant is asking for a low-impact sentencing outcome. Here are the basics:

Michael Flynn’s attorneys asked a federal judge on Tuesday to spare the former Trump national security adviser any jail time because of his “extensive cooperation” with special counsel Robert Mueller.

In a 178-page sentencing memo, Flynn’s attorneys pleaded for leniency by citing their client’s “exceptional record of military service” and “his genuine contrition for the uncharacteristic error in judgment that brought him before this court.”

Flynn, who pleaded guilty last December to lying to the FBI during the early stages of its counterintelligence investigation into Russian meddling in the 2016 election, should instead be sentenced to one year of probation with minimal supervision conditions and 200 hours of community service, his lawyers said.

The retired Army general, his lawyers added, has shown he has a “deep respect for the law, as reflected in his extensive cooperation with the government’s efforts to get to the truth and to enforce the laws.”

U.S. District Court Judge Emmet Sullivan is scheduled to sentence Flynn on Dec. 18 for his guilty plea for making false statements to the FBI. Mueller’s office last week highlighted Flynn’s cooperation — including 19 interviews with the special counsel and other Justice Department prosecutors — in their own memo suggesting that Flynn get little or no jail time for his behavior.

The full filing is available at this link, and it runs 178 pages due to dozens of exhibits mostly in the form of letters in his support. The memo itself runs only just over a dozen pages and it starts with this "Preliminary Statement":

The defendant, through his attorneys, submits this Memorandum in Aid of Sentencing and respectfully requests that the Court grant the Government’s Motion for Downward Departure pursuant to § 5K1.1 of the United States Sentencing Guidelines, and sentence him to a term of probation not to exceed one year, with minimal conditions of supervision, along with 200 hours of community service.  General Flynn has accepted responsibility for his conduct.  He has cooperated extensively with several Department of Justice investigations, as detailed in the addendum to the Government’s Memorandum in Aid of Sentencing.  As the Government has made clear, his cooperation was not grudging or delayed.  Rather, it preceded his guilty plea or any threatened indictment and began very shortly after he was first contacted for assistance by the Special Counsel’s Office. Following extraordinary public service in the United States Army, during which his innovations as a highly decorated intelligence officer saved countless American lives, and a lifetime of faithful devotion to his family and fellow service members and veterans, as described in the powerful letters of support that accompany this submission, a sentence of non-incarceration is both appropriate and warranted.

Prior related posts:

• With guilty plea entered, former national security director Michael Flynn now faces (easy?) sentencing 
• Special Counsel says non-incarceration sentence for Michael Flynn is "is appropriate and warranted" 

Another reminder that clemency grants bring "much needed hope to many families during the Holiday Season"

The big sentencing news today was, of course, the promise by Senate majority leader Mitch McConnell that he will soon bring up FIRST STEP Act for a vote.  And it was pleasing to see Prez Trump use Twitter to say something nice in reaction to this news with this tweet:

Thanks to Leader McConnell for agreeing to bring a Senate vote on Criminal Justice this week! These historic changes will make communities SAFER and SAVE tremendous taxpayers dollars. It brings much needed hope to many families during the Holiday Season.

— Donald J. Trump (@realDonaldTrump) December 11, 2018

Among other notable realities, this tweet is a useful reminder that Prez Trump will be eager to tout the benefits of the FIRST STEP Act after its passage and through its implementation (which will take years). Indeed, among the reasons I am so eager to see the FIRST STEP Act passed this year is so that all GOP leaders who urged its passage will be invested in helping to ensure its long-term success (and will, I hope, be eager to support further reform if the FSA proves very successful).

But another thought came to mind upon reading Prez Trump's accurate statement that criminal justice reform "brings much needed hope to many families during the Holiday Season" — namely that clemency grants provide another means to make many families hopeful during this time of year. I have noted in recent posts here and here some notable recent clemency work by Govs in California and Oklahoma, and it would be great to have many more such stories to spotlight from both Governors and the President of the United States.

As regular readers know, Prez Trump was sure talking up a good clemency game over the summer, but we have not seen much action on this front in recent months. I suspect that one possible reason for clemency hesitation was a White House focus on getting the FIRST STEP Act passed. Now that that there seems to finally be legislative movement on this front, perhaps Prez Trump and his team can focus now again on using a tool that "brings much needed hope to many families" without having to deal with any folks in Congress.

A few of many recent related posts: 

• Kimme’s accomplishment: Prez Trump commutes LWOP sentence of Alice Johnson!!
• Prez Trump reportedly "obsessed" with pardons and "may sign a dozen or more in the next two months"
• Prez Trump now says he is looking at "3,000 names" for possible clemency and will seek more 
• Another notable report on clemency suggesting Prez Trump will be "pardoning a lot of people — pardons that even Obama wouldn’t do"
• Will Prez Trump deliver on all the clemency "tidal wave" of hopefulness he has engendered?
• Can Kanye West help jump-start now dormant clemency and criminal justice reform activity in White House?
• How about a few clemency grants, Prez Trump, to really honor vets in need on Veterans Day?
• "The process to pardon turkeys is more rational than the one used for humans"
• Timely reminder that now would be the perfect time for Prez Trump to make good on his clemency talk

Sixth Circuit panel overturns ruling that Ohio's lifetime sex-offender registration rules violate procedural due process rights

A panel f the Sixth Circuit handed down an interest opinion today in Doe v. DeWine, No. 17-3857 (6th Cir. Dec. 11, 2018) (available here).  Here is how it gets started and some key passages:

Defendants-Appellants Michael DeWine, Ohio Attorney General, and Tom Stickrath, Superintendent of the Ohio Bureau of Criminal Investigation, appeal the district-court judgment declaring that Ohio’s sexual-offender registration and notification laws violate Plaintiff-Appellee Jane Doe’s procedural due process rights because they subject her to lifetime registration requirements, which rest on an implicit finding that she remains likely to reoffend, without an opportunity to rebut that finding.  We REVERSE....

The statute unambiguously provides that the sentencing judge’s determination that a person convicted of a sexually oriented offense “is likely to engage in the future in one or more sexually oriented offenses” is “permanent and continues in effect until the offender’s death.”  O.R.C § 2950.09(D)(2) (2003).  In eliminating an offender’s right to petition the sentencing court for a reclassification hearing and declaring the classification permanent, the Ohio legislature made clear that the initial “classification or adjudication” could never “be removed or terminated,” id., and that an offender’s duties and restrictions stemming from that classification could not “be removed or terminated” either, id. § 2950.07(B)(1).

Thus, Doe’s current sexual-predator classification is based on her likelihood of reoffending as of the time of the classification hearing because under Ohio’s scheme, that assessment operated to require that her name be placed in the sex-offender registry permanently.  As in DPS, no fact other than that assessment is relevant to Doe’s present classification.  538 U.S. at 7.  In other words, Doe’s duty to register and the attendant restrictions stem not from her current dangerousness, but from the assessment of her dangerousness at her classification hearing, which resulted in a permanent sexual-predator classification.  Therefore, she has not been deprived of constitutionally guaranteed process because “due process does not require the opportunity to prove a fact that is not material to the State’s statutory scheme.” Id. at 4....

In sum, because Doe’s registration requirement stems from the determination of her likelihood of reoffending at the time of her classification hearing and is not dependent on her current dangerousness, she has no procedural due process right to a reclassification hearing.  Further, the wisdom of Ohio’s decision to make the determination of a sexual offender’s future dangerousness permanent is not subject to a procedural due process challenge.

"Charlottesville Jury Recommends 419 Years Plus Life For Neo-Nazi Who Killed Protester"

The title of this post is the headline of this NPR piece reporting on a high-profile jury sentencing verdict this afternoon.  Here are the details:

The 21-year-old avowed neo-Nazi who murdered a woman when he plowed his car into a crowd of counterprotesters last year at a white nationalist rally in Charlottesville, Va., will likely spend the rest of his life in prison.

A jury in Charlottesville said Tuesday that James Alex Fields Jr. should be sentenced to life plus 419 years in prison and $480,000 in fines, for killing Heather Heyer and seriously injuring 35 others.

Judge Richard Moore will decide whether to sign off on the recommended sentence at a hearing on March 29.

The life sentence was in response to Fields' first-degree murder conviction. The jury arrived at 419 additional years, The Associated Press reports, by recommending "70 years for each of five malicious wounding charges, 20 for each of three malicious wounding charges, and nine years on one charge of leaving the scene of an accident."

A day earlier, jurors heard emotional testimony from Heyer's mother, Susan Bro, and from several victims struck by Fields on Aug. 12, 2017, during the Unite the Right rally that weekend. "Heather was full of love, justice and fairness," Bro said, according to the Richmond Times-Dispatch. "Mr. Fields tried to silence her. ... I refuse to let him."

Bro also told the jury that she does not hate Fields for killing her daughter, a loss she described as an "explosion" that has blown up her family.

Meanwhile, Fields' attorneys asked the jury to consider their client's mental state on the day of the murder. A psychologist "testified that Fields was diagnosed with bipolar disorder and schizoid personality disorder at the ages of 6 and 14, respectively," the Times-Dispatch reported....

Fields also faces federal hate crime charges, which allow for the death penalty.

I think it at once silly and telling when defendants are facing or are given sentences that are much longer than the United States has been a country. And here, of course, Fields will have to be in prison until the year 2437 and then face a life sentence!

Jokes aside, the interesting questions now are (1) whether the Virginia judge will adopt the jury's sentencing recommendation, and (2) whether federal prosecutors will still be eager to pursue federal charges to possibly seek a death sentence for Fields.

Prior related post:

• After Virginia jury convicts James Fields of first-degree murder for killing in Charlottesville, same jury to begin considering sentence

"The Electric Chair Is Back and the Death Penalty Is on Life Support"

The title of this post is the headline of this new commentary by Austin Sarat in Slate.  Here are excerpts:

On Thursday, David Earl Miller became the second person in the last five weeks to choose death in Tennessee’s electric chair over lethal injection. Miller was executed for the 1981 murder of 23-year-old Lee Standifier.

After losing a lawsuit claiming he had a right to be executed by a firing squad, Miller took advantage of a state law allowing death row inmates convicted prior to 1999 to opt for the electric chair rather than lethal injection.  He did so because he feared that the state’s lethal injection protocol, which includes midazolam, a drug that has been involved in several botched executions, would result in a more prolonged and painful death than would electrocution.

The real significance of the return of the electric chair, though, would be missed if we saw it only as a loss of faith in lethal injection by death row inmates.  It signals a larger crisis for the death penalty system in the United States....

Today, nine states retain the electric chair as a legally allowable method of execution. Since 1980, only 11 percent of American executions have involved the electric chair. Most of the other countries that have capital punishment choose one method of execution and stick with it.  In contrast, since the late 19th century, the United States has used five different methods of execution: hanging, electrocution, lethal gas, the firing squad, and lethal injection.  The death penalty has been sustained by the hope of making progress in the grim business of putting people to death.  Indeed, its legitimacy is closely linked to the search for a technological magic bullet to insure the safety, reliability, and humanity of execution.

Even though Miller became just the 16th person put to death by electrocution in the United States since the turn of the 21st century, a period in which there have been 873 lethal injections, the return of the electric chair and other previously abandoned methods of executions signifies more than just the severity of lethal injection’s current problems.  This back-to-the future moment suggests that the United States has reached the end of the road in the search for ever-better execution methods.  It highlights the shaky ground now occupied by America’s death penalty.

Though I share the view that the death penalty remains on shaky ground in the US, it is also the case that the ground is getting just a bit more steady in the Trump era. The prospect of a wholesale striking down of the death penalty by the Supreme Court seems no longer likely in light of Prez Trump's two appointment to SCOTUS. And the last two years, the number of executions completed each year by the states have ticked up slightly since 2016.  As detailed here, there is an execution scheduled in Texas tonight; if it goes through, 2018 will have had more executions nationwide than did 2017.

Senate leader Mitch McConnell says in floor speech that he will bring up FIRST STEP Act for a vote!!

Most everything that happens inside the Beltway tends to make me sad and frustrated, but I was feeling especially sad and frustrated by report that the FIRST STEP Act would not even get a vote in the Senate this year.  But, providing a belated Hannukah gift and an early Christmas gift is this exciting news via the Washington Post: "McConnell to bring up criminal-justice bill for a Senate vote."  Here are the details:

Senate Majority Leader Mitch McConnell (R-Ky.) said Tuesday that the Senate will vote on a sweeping overhaul of the criminal justice system that has proven deeply controversial within the Senate Republican ranks. 

McConnell said in a floor speech Tuesday morning that the Senate will take up the legislation, written by Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa), Sen. Richard J. Durbin (D-Ill.) and several other Democratic and Republican senators, in December, perhaps as early as the end of this week. 

He also warned that because of the decision to add the criminal justice bill to the Senate agenda, “members should now be prepared to work between Christmas and New Year’s.” He urged senators to “work together or prepare for a very, very long month.”

Since I am regularly working — usually grading, researching and blogging — between Christmas and New Year's, I am not at all troubled that Senators will also have to squeeze in a little extra work to earn their final 2018 paychecks.   

This report is certainly something to celebrate among everyone eager to see some — any — positive reforms to our federal criminal justice system.  But, of course, having a bill enacted and signed by the Prez is critical before a full celebration is appropriate. In addition, various reports of various carve outs in order to garner GOP support for various part of the bill suggest that the final legislation could prove especially modest in various particulars.  Still, as I see it, something is always better than nothing, and any version of the FIRST STEP Act is likely to be something.

Some of the most recent of many prior related posts:

• Could enhanced FIRST STEP Act get more than 90 votes in the Senate if ever brought up for a vote?
• Senate Majority Leader Mitch McConnell promises floor vote on FIRST STEP Act after midterm election if more than 60 Senators want to move forward
• Prez Trump reportedly to announce support for FIRST STEP Act with sentencing provisions, greatly increasing its prospects for swift passage
• Senator Tom Cotton, rather than argue against FIRST STEP Act, makes case for what should be in a SECOND STEP Act
• Four changes to the FIRST STEP Act sought by Senator Tom Cotton
• Senator Tom Cotton continuing to do everything he can to try to keep the FIRST STEP Act from moving forward 
• A notable debunking of "Three Myths From Critics of Criminal Justice Reform"
• FIRST STEP Act, already compromised to cater to tough-on-crime crowd, may be watered down further for Senate vote 
• Despite push by Prez and VP and support of at least 70 senators, odds of a Senate vote on FIRST STEP Act still reportedly "less than 50/50" 
• Latest chapter of FIRST STEP Act massaging and messaging
• The faulty and foul thinking continuing to thwart a vote on the FIRST STEP Act 
• Yet one more round-up of news and notes as debate over the FIRST STEP Act rages on
• Senator Ted Cruz supports FIRST STEP Act with revisions, Prez Trump tweets for a "VOTE," and the bill's prospects brighten 

Congress finally enacts "Paroline fix" that should improve victim restitution in federal child porn cases

Long-time readers may recall regularly blogging here about federal district and circuit opinions struggling to figure out whether and how courts could impose restitution awards/punishments on federal offenders convicted only of downloading child pornography images.  Because the child porn restitution questions produced various splits in the lower courts, the Supreme Court took up and "resolved" these issues in Paroline v. US, No. 12-8561 (Apr. 23, 2014) (available here).  But because Paroline required federal judges, in the words of one district court, to make "essentially a wild-ass guess" when trying to determine the appropriate level of restitution for a victim in a child porn downloading case, this issue continued to cry out for a legislative fix in the wake of the Paroline ruling.

A few days after the Supreme Court ruled in Paroline, I asked in a post "Will Congress fix (quickly? ever? wisely?) the "puzzle of paying Amy" after Paroline?".  And a few years after the Supreme Court ruled in Paroline, victim advocates Paul Cassell and James Marsh talking through these issues in a law review article "Full Restitution for Child Pornography Victims: The Supreme Court's Paroline Decision and the Need for a Congressional Response".  Now, a little more than 55 months after the Supreme Court ruled in Paroline, Congress managed to get a Paroline fix done in a bipartisan fashion. 

Specifically, Congress used its lame duck session to finalize a long-discussed Paroline fix in the form of an amendment to federal restitution statutes called the "Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018."   President Trump, as reported in this press release, on Friday signed this legislation into law.  Senator Orrin Hatch, who played a leading role in getting this enacted, released this press statement celebrating and explaining this new legislation:

Senator Orrin Hatch (R-UT), the senior Republican and President Pro Tempore of the US Senate, released the following statement after the President signed the Amy, Vicky, and Andy Child Pornography Victim Assistance Act into law. Senator Hatch introduced the legislation alongside Senators Dianne Feinstein (D-CA), Chuck Grassley (R-IA), Amy Klobuchar (D-MN), John Cornyn (R-TX), and Pat Toomey (R-PA). This bill recognizes the unique kind of harm caused by child pornography and requires restitution in a manner that will support victims.

“I’m thrilled the President has signed the Amy, Vicky, and Andy Act into law. This is a momentous day and many years in the making.” Hatch said. “This bipartisan legislation will provide meaningful assistance for child pornography victims to support their recovery and allow them to reclaim their lives. I am proud of this legislation and look forward to seeing it change the world for good.” The legislation establishes more relevant standards for child pornography victims who seek restitution from defendants and gives victims the alternative of a one-time fixed compensation payment from the existing Crime Victims Fund. The bill also allows victims access to the images depicting them, which can be important for victim identification, expert testimony, forensic review, and treatment.

The bill passed in the Senate by unanimous consent in January. With the help of Congressman Trey Gowdy (R-SC), the House sponsor of the bill, and House Judiciary Chairman Bob Goodlatte (R-VA), the House of Representatives passed an amended version of the bill by unanimous consent. In November, the Senate passed the amended bill by unanimous consent, and ... was signed by the President into law.

The bill is named after victims depicted in some of the most widely circulated child pornography series in the world. “Amy,” “Vicky,” and “Andy” all strongly support the bill.

The Amy, Vicky, and Andy Child Pornography Victim Assistance Act includes the following provisions:

• Findings that focus on the unique nature of child pornography crime and how it harms victims
• A more relevant and predictable definition of “full amount of a victim’s losses”
• Restitution: --- Child pornography production: victims receive full amount of their total losses; ----Child pornography trafficking: victims receive from each defendant a minimum of $3,000
• Compensation: --- Victims of child pornography trafficking are entitled to receive a one-time payment of $35,000 in defined monetary assistance (which is indexed to inflation) from a Child Pornography Victims Reserve (CPVR) within the federal Crime Victims Fund (CVF); --- Caps fees for attorneys representing a victim seeking defined monetary assistance at 15%; --- The court must assess defendants in child pornography cases to contribute to the CPVR: up to $17,000 for possession, up to $35,000 for distribution, and up to $50,000 for production crimes; --- The CPVR will be capped at $10 million
• Victims of child pornography trafficking will enjoy the same priority in restitution payments as victims in other restitution statutes
• Child pornography victims have equal rights with criminal defendants to review the child pornography depicting them at a government facility or court for the purposes of furnishing expert testimony
• The Department of Justice must deliver a report to Congress within two years after passage about the Act’s implementation including an assessment of the funding levels for the Child Pornography Victims Reserve

I have long been a support of more effective and predictable restitution mechanisms in these  kinds of cases and others, so I welcome this overdue development.  Because few have been reporting consistently on the impact of the Paroline ruling in federal cases, I am especially glad this legislation give the Justice Department a responsibility to report on this new legislation's effectiveness.

A few (of many) prior posts on Paroline and child porn restitution issues mostly from some years ago:

• SCOTUS splits the difference for child porn restitution awards in Paroline
• Will Congress fix (quickly? ever? wisely?) the "puzzle of paying Amy" after Paroline?
• "Full Restitution for Child Pornography Victims: The Supreme Court's Paroline Decision and the Need for a Congressional Response"
• "Possession, Child Pornography and Proportionality: Criminal Liability for Aggregate Harm Offenses" 
• Fascinating NY Times magazine cover story on child porn victims and restitution
• "Pricing Amy: Should Those Who Download Child Pornography Pay the Victims?"
• Explaining why I am rooting so hard for "Amy" in Paroline
• Wondering about judicial "wild-ass guesses" when considering child-porn restitution since Paroline 

"Class v. United States: Bargained Justice and a System of Efficiencies"

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

In 2018, the United States Supreme Court ruled in Class v. United States that a defendant does not inherently waive his or her right to appeal constitutional claims simply by entering an unconditional plea of guilty. Rather, the Court determined such waivers must be express.  While the issue decided in Class was relatively straightforward, the case stands more importantly as another pillar in the growing body of modern plea-bargaining jurisprudence.  In particular, Class is of note because the facts of the case and the discussions surrounding the appeal raise fundamental questions regarding the operation of the plea-bargaining machine, the psychology of defendant decision-making, and the voluntariness of plea bargaining given our growing understanding of the phenomenon of factually innocent defendants falsely pleading guilty.

This article begins with an examination of Class, including the incentives that led the defendant to plead guilty despite his belief that the statute of conviction infringed his constitutional rights.  The article then examines the shadowy rise of plea bargaining during the 19th and 20th centuries and the recent focus on plea bargaining by the Supreme Court since its 2010 decision in Padilla v. Kentucky.  This analysis of recent plea-bargaining case law will illustrate that fundamental issues are beginning to rise to the surface regarding defendant decision-making and voluntariness in the plea context, including the reliability of admissions of guilt in return for plea bargains and the phenomenon of false pleas.  The article, therefore, next examines recent psychological research on these topics, including research demonstrating that factually innocent individuals will falsely confess in return for the benefits of a bargain and research finding that pretrial detention is a driver of false pleas.

Finally, the piece considers the ramifications of growing evidence that plea bargaining has a voluntariness and reliability problem.  Along with considering ways to address these concerns, the article proposes that these revelations will inevitably lead us to face a broader question.  What does it mean if we have adopted a criminal justice system that embraces efficiency at the expense of accuracy?

SCOTUS rules unanimously that ACCA predicates can include all sorts of burglary

The Supreme Court this morning handed down its first full sentencing opinion of the Term, and the opinion in yet another Armed Career Criminal Act dispute over statutory interpretation is not all that interesting or all that surprising.  Justice Breyer wrote a short opinion for a unanimous court in US v. Stitt, No. 17-765 (S. Ct. Dec. 10, 2018) (available here), and it gets started this way:

The Armed Career Criminal Act requires a federal sentencing judge to impose upon certain persons convicted of unlawfully possessing a firearm a 15-year minimum prison term.  The judge is to impose that special sentence if the offender also has three prior convictions for certain violent or drug-related crimes.  18 U. S. C. §924(e).  Those prior convictions include convictions for “burglary.” §924(e)(2)(B)(ii).  And the question here is whether the statutory term “burglary” includes burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation.  We hold that it does.

And here are a few paragraphs from the opinion's substantive discussion:

The word “burglary,” like the word “crime” itself, is ambiguous.  It might refer to a kind of crime, a generic crime, as set forth in a statute (“a burglary consists of behavior that . . . ”), or it might refer to the way in which an individual offender acted on a particular occasion (“on January 25, Jones committed a burglary on Oak Street in South San Francisco”).  We have held that the words in the Armed Career Criminal Act do the first.  Accordingly, we have held that the Act requires us to evaluate a prior state conviction “in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.”  Begay v. United States, 553 U.S. 137, 141 (2008). A prior state conviction, we have said, does not qualify as generic burglary under the Act where “the elements of [the relevant state statute] are broader than those of generic burglary.” Mathis v. United States, 579 U. S. ___, ___ (2016) (slip op., at 19).  The case in which we first adopted this “categorical approach” is Taylor v. United States, 495 U. S. 575 (1990).  That case, which specifically considered the statutory term “burglary,” governs here and determines the outcome.

In Taylor, we did more than hold that the word “burglary” refers to a kind of generic crime rather than to the defendant’s behavior on a particular occasion.  We also explained, after examining the Act’s history and purpose, that Congress intended a “uniform definition of burglary [to] be applied to all cases in which the Government seeks” an enhanced sentence under the Act.  Id., at 580–592.  We held that this uniform definition includes “at least the ‘classic’ common-law definition,” namely, breaking and entering a dwelling at night with intent to commit a felony.  Id., at 593.  But we added that it must include more.  The classic definition, by excluding all places other than dwellings, we said, has “little relevance to modern law enforcement concerns.” Ibid. Perhaps for that reason, by the time the Act was passed in 1986, most States had expanded the meaning of burglary to include “structures other than dwellings.” Ibid. (citing W. LaFave & A. Scott, Substantive Criminal Law §§8.13(a)–(f) (1986)).

For a small number of federal defendants facing ACCA's long mandatory minimum based on a quirky prior crime, this ruling is very important and consequential.  For others, not much too see here.

After Virginia jury convicts James Fields of first-degree murder for killing in Charlottesville, same jury to begin considering sentence

As indicated in this brief AP report headlined "Jury to recommend sentence for white nationalist," a high-profile jury sentencing gets started today:

A man convicted of first-degree murder for driving his car into counterprotesters at a white nationalist rally in Virginia faces 20 years to life in prison as jurors reconvene to consider his punishment.

The panel that convicted James Alex Fields Jr. will hear more evidence Monday before recommending a sentence for Judge Richard Moore.

Fields was convicted Friday of killing Heather Heyer during last year's "Unite the Right" rally in Charlottesville, organized to protest the planned removal of a statue of Confederal Gen. Robert E. Lee. The 21-year-old Fields, of Maumee, Ohio, also was found guilty of injuring dozens of others by driving into a crowd of people who were marching peacefully after the rally.

I know very little about Virginia's sentencing process, and I am now very curious about what they are allowed to hear at this stage.  I do know that Virginia jurors are not told about sentencing guidelines that would be applicable and considered at a judicial sentencing.  And I wonder if they can be told about the fact that the defendant here is also facing dozens of federal charges.  Here is a little about recent history of jury sentencing from the Virginia Sentencing Commission's 2018 Annual Report (from pages 25-27):

There are three methods by which Virginia’s criminal cases are adjudicated: guilty pleas, bench trials, and jury trials.  Felony cases in circuit courts are overwhelmingly resolved through guilty pleas from defendants, or plea agreements between defendants and the Commonwealth.  During the last fiscal year, 91% of guideline cases were sentenced following guilty pleas.  Adjudication by a judge in a bench trial accounted for 8% of all felony guidelines cases sentenced.  During FY2018 1.2% of cases involved jury trials. In a small number of cases, some of the charges were adjudicated by a judge, while others were adjudicated by a jury, after which the charges were combined into a single sentencing hearing....

In FY2018, the Commission received 270 cases adjudicated by juries.  While the concurrence rate for cases adjudicated by a judge or resolved by a guilty plea was at 82% during the fiscal year, sentences handed down by juries concurred with the guidelines only 39% of the time.  In fact, jury sentences were more likely to fall above the guidelines than within the recommended range.  This pattern of jury sentencing vis-à-vis the guidelines has been consistent since the truth-in-sentencing guidelines became effective in 1995. By law, however, juries are not allowed to receive any information regarding the sentencing guidelines....

In cases of adults adjudicated by a jury, judges are permitted by law to lower a jury sentence.  Typically, however, judges have chosen not to amend sanctions imposed by juries. In FY2018, judges modified 16% of jury sentences.

New study highlights that "1 in 2 people in the United States has had an immediate family member incarcerated"

This recent USA Today piece, headlined "'This isn't just numbers – but lives': Half of Americans have family members who've been incarcerated," reports on a notable new report about the real scope of incarceration in the so-called land of the free. Here is how the press account gets started:

One of Felicity Rose's first memories of her father is of the sheet of glass that separated them when she visited him in prison.  Growing up, she tried to hide his past, the prison sentences that kept him behind bars for drug crimes and the ripple effect it had on her family, both financially and psychologically. 

Over time, Rose realized her family wasn't alone.  Her story was one of millions, as noted in a first-of-its-kind study released Thursday by FWD.us, where Rose works directing research on criminal justice.   Among the findings, obtained first by USA TODAY, were that half of adults in the USA have an immediate family member who has been incarcerated. That's about 113 million people who have a close family member who has spent time behind bars. 

The study by FWD.us, an organization critical of U.S. immigration and criminal justice policy, was done in partnership with Cornell University. The conclusions were drawn from a survey of more than 4,000 people, a sample size representative of the U.S. population. 

I recommend the full FWD.us report, titled "Every Second: The Impact of the Incarceration Crisis on America’s Families," in both its electronic form and in its 55-page hard copy form.  Here is the executive summary from the report:

On any given day, there are more than 1.5 million people behind bars in state or federal prisons in the United States. Admissions to local jails have exceeded 10 million each year for at least the past 20 years. These figures are staggering, but the long reach of incarceration extends well beyond the jail and prison walls to the families on the other side.

New research from FWD.us and Cornell University shows that approximately one in two adults (approximately 113 million people) has had an immediate family member incarcerated for at least one night in jail or prison. One in seven adults has had an immediate family member incarcerated for at least one year, and one in 34 adults has had an immediate family member spend 10 years or longer in prison. Today, an estimated 6.5 million people have an immediate family member currently incarcerated in jail or prison (1 in 38).

The negative effects that individuals experience after being incarcerated are well documented, but much less is known about the incredible direct and indirect harms and challenges that families face when a loved one has been taken away. This report examines this important but understudied aspect of mass incarceration and provides new estimates on the prevalence of family incarceration for parents, siblings, spouses, and children.

The findings reinforce the need to significantly reduce incarceration and support the families that are left behind. Despite limited recent declines in the jail and prison population, an unprecedented number of people continue to be impacted by incarceration and the collateral consequences of that experience which can last a lifetime.  Research has shown that even short periods of incarceration can be devastating to people’s lives and additional punishments such as fines and fees, restrictions on employment and housing, and the loss of basic human rights limit opportunities for success long after individuals have completed their sentences.

Our study shows that incarceration impacts people from all walks of life — for example, rates of family incarceration are similar for Republicans and Democrats — but the impact is unevenly borne by communities of color and families who are low-income.  Black people are 50 percent more likely than white people to have had a family member incarcerated, and three times more likely to have had a family member incarcerated for one year or longer.  People earning less than $25,000 per year are 61 percent more likely than people earning more than $100,000 to have had a family member incarcerated, and three times more likely to have had a family member incarcerated for one year or longer.

The remainder of this report examines the prevalence of family incarceration for different demographic groups and communities, the impact of incarceration on family outcomes, and the policies that exacerbate the harmful effects of having a loved one incarcerated.  The findings show just how pervasive and entrenched incarceration has become in America, and the results should convince decision-makers and the public to take a hard look at the policies that drive incarceration and the opportunities to strengthen families rather than tear them apart.

Rounding up negative reactions to William Barr's nomination to be next US Attorney General

Unsurprisingly given his prior record as Attorney General and various statements on reform efforts past and present, folks in the criminal justice and drug policy reform community are not too keen of Prez Trump's decision to nominate William Barr to be the next US Attorney General.  Here is an extended sampling of press releases and articles on this front:

From ACLU, "No Relief: William Barr Is as Bad as Jeff Sessions — if Not Worse"

From The Brennan Center, "William Barr Is Out of Step on Criminal Justice Reform"

From Drug Policy Alliance, "Barr Record on Drug War and Criminal Justice Reform is Appalling"

From FAMM, "FAMM Statement on the Nomination of William Barr for U.S. Attorney General"

From The Intercept, "Trump’s Pick For Attorney General Pushed For Military Strikes On Drug Traffickers, Questioned Asylum Law"

From Leafy, "What Trump’s New AG Pick Could Mean for Cannabis"

From Marijuana Moment, "Where Trump’s Pick For Attorney General Stands On Drug Policy"

From Quartz, "Trump nominee William Barr pushed for the death penalty to “send a message to drug dealers"

From Vox, "William Barr helped establish mass incarceration. Now Trump wants him as attorney general."

Largely because of points made in these pieces, William Barr certainly was not the AG candidate I was rooting for.  (Retired DC Circuit Judge Janice Rogers Brown was a name thrown out at one point that struck me as especially interesting.)  But though I share many of the concerns expressed in the press releases and articles assembled above, I am also hoping and rooting that Barr's thinking on various crime and punishment issues may have evolved, at least a little bit, since his last stint as Attorney General a quarter century ago.  Particularly given how a number of "tough on crime" defenders of mandatory minimums and other harsh federal sentencing laws have come around in just the last few years to be vocal advocates for reform (e.g., Representative James Sensenbrenner and Senator Charles Grassley), I am not prepared quite yet to fear that an AG Barr will be as bad or worse than an AG Sessions.  But we will perhaps find out before too long.

Prior related posts:

• "George H.W. Bush’s biggest failure? The war on drugs."
• Talk of William Barr for Attorney General (and his "Case for More Incarceration") 
• So what does Bill Barr now think about federal criminal justice reforms or state marijuana reforms?