Sentencing Law and Policy

"Ideological Testing"

The title of this post is the title of this new article now available via SSRN authored by Renagh O'Leary. Here is its abstract:

This Article describes and critiques a practice I call the ideological testing of criminal defendants.  Ideological testing occurs when state actors within the criminal legal system elicit and evaluate the defendant’s views of the criminal legal system.  For example, as part of the presentence investigation process in some jurisdictions, probation or parole officers are required to ask defendants questions like, “Do you think the criminal justice system is fair?,” “Do you feel you have been treated fairly by the criminal justice system?,” and “How do you feel about the police that arrested you?”

This Article introduces the concept of ideological testing and describes how it occurs at multiple sites within the criminal legal system, including presentence investigations, risk assessments, and parole hearings.  In theory, ideological testing helps state actors predict a defendant’s recidivism risk and assess their remorse.  Where a defendant expresses critical views of the criminal legal system — such as the view that the system is unfair, or that their sentence was excessively harsh — this supposedly indicates their “criminal thinking,” lack of remorse, and failure to accept responsibility.

Ideological testing undermines the core First Amendment value of governmental respect for dissent.  It also denies the reality of pervasive injustice within the criminal legal system and deepens racial injustice.  This Article calls on advocates to challenge ideological testing on First Amendment grounds and proposes the elimination of ideological testing as a matter of policy.

Three notable new pieces from The Marshall Project

I likely should make even more of an effort to flag here the always great work done by the folks at The Marshall Project, and three new original pieces prompts me to do this quick round up.   All three of these articles justify their own post, but here I will just provide full headlines, links, and a recommendation that everyone read them all in full:

By Beth Schwartzapfel, "He Spent Years in Federal Prisons. Now He’s Helping to Lead Them; The Bureau of Prisons’ new deputy director’s past incarceration has drawn outrage from some officers — and support from people still inside."

By Doug Livingston, "How Ohio Prison Staff Open and Read Confidential Legal Mail; An anti-drug smuggling policy has slowed the delivery of time-sensitive court documents as prison staff read letters protected by attorney-client privilege."

By Wilbert L. Cooper, "These States Are Debating Castration for Sex Crimes. Experts Call It Cruel and Pointless; Critics say there’s no evidence that castration prevents future sex offenses. Yet several states are weighing such measures."

SCOTUS grants cert to address whether prisoner can seek money damages under RLUIPA

This morning's Supreme Court orders list is quite short, but it is also sweet for one prisoner who is seeking damages from Louisiana prison official for a violation of his rights under the Religious Land Use and Institutionalized Persons Act.  The cert grant in in Landor v. Louisiana Department of Corrections and Public Safety was from a petition setting for the question presented this way:

Congress has enacted two “sister” statutes to protect religious exercise: the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. 2000bb et seq., and the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. 2000cc et seq. In Tanzin v. Tanvir, 592 U.S. 43 (2020), this Court held that an individual may sue a government official in his individual capacity for damages for violations of RFRA. RLUIPA’s relevant language is identical.

The question presented is whether an individual may sue a government official in his individual capacity for damages for violations of RLUIPA.

Over at SCOTUSblog, John Elwood a few weeks ago had this review of the case as it was looking cert-likely:

Damon Landor is a devout Rastafarian who has taken a religious vow not to cut his dreadlocks. While incarcerated, he was restrained and had his head forcibly shaved by Louisiana prison officials even after he had showed them a decision of the U.S. Court of Appeals for the 5th Circuit holding that cutting religious prisoners’ dreadlocks violates the Religious Land Use and Institutionalized Persons Act.

After his release, Landor sued the prison officials in their individual capacities, but the district court dismissed his suit on the ground that decisions in the 5th Circuit do not allow individuals to bring lawsuits for compensatory or punitive damages under RLUIPA. The 5th Circuit affirmed that decision in Landor v. Louisiana Department of Corrections and Public Safety, reasoning that it had previously held that “RLUIPA was ‘enacted pursuant to Congress’s Spending Clause power,’” and that because “Spending Clause legislation ‘operates like a contract’ … ‘only the grant recipient—the state—may be liable for its violation.’” 

By a vote of 11-6 and over two dissenting opinions, the full court denied review. Judge Edith Brown Clement, joined by eight judges, concurred in the denial of rehearing, saying that “only the Supreme Court can answer” whether such damages are permissible under the spending clause.

Landor, supported by eight “friend of the court” briefs, now asks the court to settle the question: Does RLUIPA’s authorization of “appropriate relief” authorize suits for money damages against state officials in their personal capacities? Back in October, the court asked for the views of the solicitor general.  The United States recently weighed in and recommends that the court grant review.

US Sentencing Commission publishes "2025 Amendments in Brief"

The US Sentencing Commission has recently published on this USSC webpage five short new documents as part of its helpful "Amendment in Brief" series.  As explained on that page, "'Amendments In Brief' are short summaries, usually one to two pages, of the Commission’s actions in a certain area of sentencing policy and the issue that prompted the amendment to the federal sentencing guidelines."  Here is a list and links to the 2025 items:

2025 Drug Offenses Amendment

2025 Simplification Amendment

2025 Supervised Release Amendment

2025 Firearms Amendment

2025 Circuit Conflicts Amendment

As noted on the webpages, the USSC promulgated these amendments to the federal sentencing guidelines back in APril 2025, and they all "will take effect on November 1, 2025 absent Congressional action to the contrary."  Given that Congress has taken direct action regarding guideline amendments only once in 35 years of USSC guideline revisions, I do not think there is any basis to expect any congressional action in response to this year's batch.

"State Constitutional Limits on Nitrogen Hypoxia Executions"

The title of this post is the title of this new article authored by William W. Berry III now available via SSRN.  Here is its abstract:

In January 2024, the state of Alabama executed Kenneth Smith with nitrogen gas.  One might think that the Eighth Amendment, which bars cruel and unusual punishments, might protect inmates against such draconian and experimental forms of execution.  But the Supreme Court’s cases have foreclosed meaningful challenges to methods of execution.

States, however, have their own constitutions with Eighth Amendment analogues.  These state constitutional punishment clauses include different formulations of the bar against cruel and unusual punishments.  In theory, they offer broader protections than the Eighth Amendment.  Some are linguistically different and some have unique histories, and as such, counsel against a lock-stepping approach that simply adopts the federal standard.

While under-litigated, this area holds promise for inmates as a basis for challenging nitrogen gas executions.  To that end, this Article explores potential limits that state constitutions can place on methods of execution.  Specifically, it makes the case that nitrogen gas executions are unconstitutional under a number of state constitution punishment clauses.

Part II of the Article provides a brief overview of American execution methods and the Court’s application of the Eighth Amend-ment to those methods.  In Part III, the Article surveys the state punishment clauses and the few cases that have raised methods challenges under state constitutions.  In Part IV, the Article advances a theoretical framework for applying state punishment clauses to methods of execution.  And Part V uses that framework to show why state punishment clauses bar nitrogen gas executions.

Checking in with police homicide data in big US cities at start of summer 2025

In this post a couple months ago, I rounded up a lot of encouraging police data on homicide rates through the first quarter of 2025. As summer officially gets started, it seemed a good time to update some of these numbers:

New York City police reporting YTD homicides down 28% so far in 2025 

Los Angeles police reporting YTD homicides down 23% so far in 2025 

Chicago police reporting YTD homicides down 28% so far in 2025

Philadelphia police reporting YTD homicides down 17% so far in 2025

Dallas police reporting YTD homicides down 38% so far in 2025

Jacksonville police reporting YTD homicides down 6% so far in 2025

St. Louis police reporting YTD homicides down 23% so far in 2025

New Orleans police reporting YTD homicides down 32% so far in 2025

Baltimore police reporting YTD homicides down 23% so far in 2025

Denver police reporting YTD homicides down 47% so far in 2025

Washington DC police reporting YTD homicides down 4% so far in 2025

Some of these numbers are not quite as spectacular as they were back in April, but I am quite suprised and quite pleased by the continuing historical declines in homicides in so many cities now nearly half way through 2025.  Of course, as I have cautioned before, these data may not prove to be representative of what could be going on elsewhere in the US or what could develop and change throughout the rest of 2025.  Still, as I have also said before, it is hard not to be quite encouraged by these data, especially since they come on the heels of already notable homicide declines over the last few years.  Let's all hope that rising temperatures in the months ahead to not lead to rising homicide rates 

"Compassionate Undercharging"

The title of this post is the title of this new article authored by Michal Buchhandler-Raphael and available via SSRN. Here is its abstract:

Undercharging, a common prosecutorial tactic, refers to the strategic pursuit of lesser charges than the law permits. While undercharging is primarily used to facilitate plea agreements, prosecutors also bring lesser charges for other reasons — such as to mitigate the harshness of the criminal legal system.  To date, however, undercharging has largely been limited to nonviolent crimes, with prosecutors generally refusing to file reduced charges in murder cases.

This Article calls on prosecutors to adopt bolder practices that extend undercharging to include homicide offenses, including murder. It coins the term “compassionate undercharging” to describe this form of prosecutorial leniency.  The Article argues that prosecutors should refrain from bringing murder charges and instead pursue lesser charges against victimized offenders — defendants who kill their abusers or third parties under coercive pressures from abusive partners—because their actions are directly linked to their experiences of domestic violence, sexual abuse, or commercial sexual exploitation.  Legal literature has largely focused on female survivors of domestic violence who kill their abusers in perceived self-defense, leaving the broader scope of criminal culpability for other victimized offenders underexplored.  This Article centers the often-overlooked experiences of male victims of physical and sexual abuse, as well as abused individuals who kill third parties.

The Article offers three justifications for undercharging in such cases: First, it aligns with the purposes of punishment, second, it fulfills the prosecutor’s role to “seek justice” through proportionate charging decisions, and third, it reflects prosecutors’ legal and ethical obligations to crime victims.

This Article contributes to legal scholarship in three ways.  First, drawing on empirical studies and court decisions that examine the correlation between victimization in domestic settings and offending, it offers a typology of victimized offenders comprising of five common categories.  Second, it demonstrates that undercharging victimized offenders is consistent with existing prosecutorial practices involving charge reductions in other contexts.  Third, it advocates reducing the criminal culpability of victimized offenders rather than merely mitigating their sentences.

By 7-2 vote, Supreme Court holds in Esteras that federal judges cannot consider retribution factors when revoking supervised release

The Supreme Court this morning handed down a notable sentencing opinion this morning in Esteras v. United States, No. 23-7483 (S. Ct. June 20, 2025) (available here).  The vote as 7-2, and the opinion for the Court was authored by Justice Barrett and it begins this way:

A criminal sentence may include both time in prison and a term of supervised release. 18 U.S.C. § 3583(a).  Supervised release comes with conditions — for instance, the defendant must refrain from committing another crime.  § 3583(d).  If the defendant violates one of these conditions, then the district court may revoke the term of supervised release and require reimprisonment. But a court may do so only “after considering” an enumerated list of sentencing factors: those “set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7).” § 3583(e). Conspicuously missing from this list is §3553(a)(2)(A), which directs a district court to consider “the need for the sentence imposed” “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.”  The Sixth Circuit held that a district court may consider that factor nonetheless.

We disagree.  Congress’s decision to enumerate most of the sentencing factors while omitting §3553(a)(2)(A) raises a strong inference that courts may not consider that factor when deciding whether to revoke a term of supervised release.  This inference is consistent with both the statutory structure and the role that supervised release plays in the sentencing process.  Accordingly, we vacate the judgments of the Sixth Circuit and remand for further proceedings.

Justices Sotomayor and Jackson both authored short concurring opinions. Justice Alito authored a lengthy dissent that was joined by Justice Gorsuch.  And it starts this way:

Veteran trial judges often complain that their appellate colleagues live in a world of airy abstractions and do not give enough thought to the practical effects of their holdings.  Today’s decision is likely to earn the rank of Exhibit A in the trial bench’s catalog of appellate otherworldliness.  The Court interprets the Sentencing Reform Act to mean that a federal district-court judge, when considering whether to impose or alter a term of supervised release, must engage in mind-bending exercises.  The judge must take into account “the nature and circumstances” of a defendant’s offense but is forbidden to consider “the seriousness of the offense.” 18 U.S.C. § 3553(a).  The judge must consider what is needed to “dete[r]” violations of the law or to rehabilitate a defendant, i.e., to cause him to lead a lawabiding life, but cannot be influenced by a desire “to promote respect for the law.” Ibid.

The Sentencing Reform Act does not place district judges in such a predicament.  Neither the statutory text, the interpretive canon on which the Court relies, nor the structure of the Act supports the Court’s interpretation.

Wait continues for two SCOTUS sentencing cases as OT 24 winds down

In what will be among its last few opinion days of October Term 2024, the US Supreme Court this morning released five opinions.  The only criminal justice related case decided today involved a procedural issue for a prisoner's suit, as noted here.  But, yet again, another SCOTUS decision day came and went without opinions in either of the two sentencing cases that have now been pending for quite some time since oral argument before the Justices.  

I believe Hewitt v. US, No. 23-1002, which was argued way back on January 13, 2025, is now the longest pending case since oral argument (though there are other cases from the Court's January sitting also still pending).  Esteras v. US, No. 23-7483, which was argued February 25, 2025, is also taking quite some time.  I am now wondering if we might be getting not only a divided Court in these cases, but perhaps a significant number of extended opinions (as we saw in Erlinger ruling last year).

This Friday is the next announced SCOTUS decision day, and I think there is a decent chance that is when we will finally get both of these opinions.  But I was expecting them to come out today, so who knows.   

Colorado Gov grants (mass?) pardon to those with certain psychedelics convictions

As reported in this Marijuana Moment article, the "governor of Colorado has announced a first-ever round of mass pardons for people with psilocybin-related convictions."  Here is more:

Just about two weeks after Gov. Jared Polis (D) signed a bill into law empowering him and future governors to issue clemency for people who’ve committed psychedelics offenses, he announced during a speech at the Psychedelic Science 2025 conference on Wednesday that he’s exercising that authority. The pardons he’s granting through executive order will provide relief to anyone with a state-level conviction for psilocybin and psilocyn possession....

At the conference, the governor stressed that, while his executive order covers state-level convictions, the major of people with psychedelics-related records were prosecuted at the local level, so he urged people to reach out to their city council representatives and mayors and ask them to pursue similar clemency actions....

The psychedelics clemency move comes several years after Polis issued mass pardons for people with prior marijuana convictions.

The recently enacted psychedelics legislation from Sen. Matt Ball (D) and Rep. Lisa Feret (D) authorizes governors to grant clemency to people with convictions for low-level possession of substances such as psilocybin, ibogaine and DMT that have since been legalized.

Interestingly, this press release from the office of Governor Polis provides some interesting data on how many (or how few) are impacted by the Governor's various clemency actions:

This Executive Order applies to all state level possession convictions for psilocybin or psilocin. The individuals who have these convictions did not need to apply for pardons, and the Governor’s Office has not conducted individual assessments of the people who have been pardoned through this process.... The State has identified four convictions for psilocybin and psilocin possession that will be pardoned by this Executive Order.

In 2020, Governor Polis issued an Executive Order pardoning Coloradans with marijuana possession convictions of one ounce or less, pardoning 2,732 total convictions. In 2021, following increases to the legal amount of marijuana a person could possess, Governor Polis pardoned another 1,351 possession convictions. This action removed barriers for Coloradans whose past convictions were no longer illegal under current laws.

In 5-4 split ruling, SCOTUS holds prisoner has jury trial right on a PLRA exhaustion issue

In a ruling certain to be far less discussed that many other issued by the Supreme Court today, the Justices held by a 5-4 vote in Perttu v. Richards, No.23-1324 (S. Ct. June 18, 2025) (available here), that a prisoner has a right to have a jury resolve an exhaution issue under the Prison Litigation Reform Act.  Chief Justice Roberts authored the opinion for the Court, which gets started and concludes this way:

The Prison Litigation Reform Act of 1995 (PLRA) requires prisoners with complaints about prison conditions to exhaust available grievance procedures before bringing suit in federal court. 42 U. S. C. §1997e(a). In some cases the question whether a prisoner has exhausted those procedures is intertwined with the merits of the prisoner’s lawsuit. Respondent Kyle Richards is a prisoner in Michigan. He alleges that he was sexually abused by petitioner Thomas Perttu, a prison employee. He also alleges that when he tried to file grievance forms about the abuse, Perttu destroyed them and threatened to kill him if he filed more.

Richards sued Perttu for violating his constitutional rights, including his First Amendment right to file grievances. Perttu responded that Richards had failed to exhaust available grievance procedures as required by the PLRA. The parties agree that the exhaustion and First Amendment issues are intertwined, because both depend on whether Perttu did in fact destroy Richards’s grievances and retaliate against him. The question presented iswhether a party has a right to a jury trial on PLRA exhaustion when that dispute is intertwined with the merits of the underlying suit....

If Congress had expressly provided in the PLRA that exhaustion disputes must be resolved by judges, then we would have been required to consider today whether such a provision violates the Seventh Amendment. But it is a “cardinal principle” that we not address such a constitutional question unless necessary. Tull v. United States, 481 U.S. 412, 417, n. 3 (1987). Meanwhile, as we have shown, the usual practice of the federal courts in cases of intertwinement is to send common issues to the jury. Because nothing in the PLRA suggests Congress intended to depart from that practice here, we hold that parties are entitled to a jury trial on PLRA exhaustion when that issue is intertwined with the merits of a claim protected by the Seventh Amendment.

The judgment of the United States Court of Appeals for the Sixth Circuit is affirmed.

Justice Barrett authored a dissent almost as long as the Court's opinion, and was joined by Justices Thomas, Alito and Kavanaugh. It begins this way:

The Prison Litigation Reform Act of 1995 (PLRA) requires prisoners suing under 42 U.S.C. § 1983 to first exhaust the administrative remedies that are “available” to them. § 1997e(a). In the decision below, the Sixth Circuit held that even if prisoners are not ordinarily entitled to a jury trial to resolve this threshold question, the Seventh Amendment requires a jury when exhaustion is intertwined with the merits.  I would reverse.  The jury right conferred by the Seventh Amendment does not depend on the degree of factual overlap between a threshold issue and the merits of the plaintiff ’s claim.

The Court takes a different path.  Instead of resolving the constitutional question that the parties brought to us, the Court holds that the PLRA itself requires a jury trial whenever an issue is common to exhaustion and the merits.  No matter, the Court says, that the PLRA is silent on the subject.  No matter that this statutory argument was not briefed before us. And no matter that it was not passed on by the courts below.

Having taken this detour, the Court ends up in the wrong place. Reading the PLRA’s silence to implicitly confer a right to a jury trial contravenes not only basic principles of statutory interpretation, but also several of this Court’s precedents. I respectfully dissent.

Federal Bureau of Prisons announces new policies to "avoid wasting millions of taxpayer dollars on unnecessary incarceration"

I just saw this morning this new one-page press release from the federal Bureau of Prisons titled "Bureau of Prisons Issues Directive to Fully Implement First Step Act and Second Chance Act."  The release merits a full read, and here are extended excerpts:

In order to restore integrity and fiscal responsibility to the federal prison system, the Bureau of Prisons (BOP) today issued a policy memorandum to staff directing the robust and comprehensive implementation of both the First Step Act of 2018 and the Second Chance Act of 2008 — two bipartisan cornerstones of modern criminal justice reform.

“This is the dawn of a new era, one in which the Bureau of Prisons will realize the full potential of the First Step Act and Second Chance Act,” said BOP Director William K. Marshall III. “The comprehensive policy outlined today will eliminate barriers to maximize the availability of home confinement to those who qualify for community release under the First Step Act and Second Chance Act. This change in policy will fully operationalize the laws as intended by Congress and ensure a smoother transition for many individuals to return to productive lives after incarceration.”

The new policy announced today will have immediate and meaningful benefits. It will:

• Avoid wasting millions of taxpayer dollars on unnecessary incarceration,
• Reduce strain on prison bedspace and staffing, and
• Eliminate prolonged and unnecessary burdens on inmates and their families — particularly those with stable home environments and strong community ties....

Director Marshall continued: “This action marks a bold shift from years of inaction toward a policy rooted in public safety, fiscal responsibility, and second chances. By empowering the agency to release more people who are ready to return to society, we not only save taxpayer dollars, we strengthen families, ease overcrowding, and build safer communities.”

I nthis new Forbes piece, Walter Pavlo has this new piece, headlined "Bureau Of Prisons Retracts Rule, Truly Expands Halfway House," which provides context and further explanation for what the new BOP policy means.  That piece also merits a full read and it concludes this way:

The memorandum is going to be well received by inmates and their families. However, the BOP has a history of slowly implementing programs that favor inmates but quickly adopting restrictions that keep them in prison longer. The Trump administration continues to be one that looks for results among those appointed to serve and it will be up to BOP leadership to deliver on this one as the directive is clear. It is the implementation of this directive that will be the next challenge.

US Sentencing Commission releases new "Quick Facts" on "Prison Contraband"

I am pleased to see that the US Sentencing Commission is continuing to release new "Quick Facts" publications, today with a "special edition" focused on prison contraband.  (Long-time readers know I cannot praise the USSC enough for producing these convenient and informative short data documents, which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.")  I recommend checking out both this online and this pdf version of these data, along with also an in-depth data briefing video and slideshow.  Here is a bit of background from the online version:

This Special Edition QuickFacts highlights a recent project undertaken by the Commission's Office of Research and Data. Staff reviewed the court documents for individuals sentenced under §2P1.2 “Providing or Possessing Contraband in Prison” of the Guidelines Manual between fiscal years 2019 and 2023. Staff examined various aspects of the case, including the type of contraband possessed, how the contraband was smuggled into the facility, where and how the contraband was discovered, and the individual who was sentenced for the offense.  

"Public Defenders and Collective Action"

The title of this post is the title of this new paper available via SSRN and authored by Nirej Sekhon. Here is its abstract:

It is clear that American carceral policy is excessively harsh, but it is unclear how to bring about the dramatic transformations required to fix it.  Prosecutors, police, and other carceral interests have outsized influence on law and policy.  Collective action problems prevent the group with the greatest interest in systemic reform -- those directly targeted by carceral interests -- from seriously challenging those interests.  Neither incrementalist reformers nor abolitionists have offered plausible solutions for this structural impediment to systemic reform.

This Article contends that the solution lies with public defenders.  They are uniquely situated to advance systemic reform in the legal, policy, and political arenas.  More than any other existing institution with potential influence in those arenas, public defenders' interests align with those directly impacted by carceral policy.  Public defenders have been overlooked as systemic reformers because they are traditionally seen as serving an individual defendant's parochial interest in avoiding conviction.  Sixth Amendment jurisprudence has idealized and entrenched this narrow framing of the defenders' role.  This framing misconceives both the nature of the State's carceral power and public defenders' potentially critical role in constraining it.  Scholars, policymakers, and activists should reject the narrow framing and make defender empowerment the centerpiece of their reformist agendas.

Reviewing some pros and cons as prisons widely embrace electronic tablets

Law360 has this lengthy new piece, headlined "Electronic Tablets Allow Inmates To Connect — With A Cost," which provides an interesting perspective on how a new technology is being used in prisons. I recommend the full piece, and here are a few excerpts:

Corrections officials say the tablets keep drugs out of facilities, make it easier for inmates to connect with family, and offer access to far more books and entertainment options.  But prisoner advocates warn that the technology makes it easier for inmates to be surveiled while cutting them further off from the outside world.  And it ensures that prison telecom companies — and sometimes corrections departments — keep making money.

"There do seem to be benefits to tablets. I wouldn't advocate eliminating them altogether, especially because incarcerated individuals have expressed a desire to have and keep tablets," said University of California at Davis School of Law professor Nila Bala. "On the flip side, tablets can also be used as an excuse to cancel in-person programming and classes, because, 'Hey, it's on your tablet now.'"

The use of electronic tablets behind bars is skyrocketing. Just 12 state prison systems offered the tablets to inmates in 2019. By late 2024, at least 48 states were already employing or introducing the technology, with just two companies — Securus Technologies, which owns JPay Inc., and Global Tel*Link Corp., also known as ViaPath — contracted to provide and operate the tablets in most of those states, according to the Prison Policy Initiative....

This digital shift has improved prison conditions, according to corrections officials.  For starters, the technology has "most definitely" reduced the drugs and contraband being snuck into her jail via paper mail, said Shannon Herklotz, executive chief deputy in the Detention Bureau of the Tarrant County Sheriff's Office in Texas.... The tablets' video and instant messaging features also make it easier for inmates to stay in touch with loved ones, particularly those who can't travel to the jail, Herklotz added....

The tablets aIso let incarcerated individuals access a much larger selection of entertainment and educational materials, including games, movies, books and podcasts, at least some of which are free, according to facility operators....

It's sometimes an expensive lifeline, though, say inmate advocates.  Most facilities say inmates are provided the tablets for free, but that claim is deceptive since inmates are often charged for services they use or time they spend on those tablets, advocates point out....  Several state corrections departments earn a percentage of the fees tablet providers charge inmates, while other states earn a flat fee for access to their facilities....

In addition to reaching into inmates' wallets, the tablets let authorities reach into their communications, experts warn. Corrections officials can access all the scanned mail, text messages, emails and videos sent and received via the tablets, which can be stored indefinitely, according to inmate advocates.

CCJ and RAND announce launch of "Task Force on Artificial Intelligence" to examine AI in CJS

As detailed in this press release, the "Council on Criminal Justice (CCJ), in partnership with RAND, today announced the launch of a national task force to develop standards and evidence-based recommendations for the integration and oversight of artificial intelligence (AI) in the criminal justice system."  Here is more from the start of the press release:

Chaired by former Texas Supreme Court Chief Justice Nathan Hecht, the Task Force on Artificial Intelligence includes 14 other leaders, from AI technology developers and researchers to police executives and other criminal justice practitioners, civil rights advocates, community leaders, and formerly incarcerated people. (See list of members [at this link].)

The work of the Task Force will span the four major sectors of the criminal justice system: law enforcement, courts, corrections, and community organizations. Over the next 18 months, the group will:

• Develop consensus principles to guide the safe, ethical, and effective use of AI in criminal justice settings;
• Translate the principles into specific, operationalized standards for AI products and procurement that can be used by agency leaders, policymakers, and community groups alike; and
• Publish high-quality, accessible research for policymakers, agencies and organizations, key individuals, and the field at large.

“Artificial intelligence is developing at breakneck speed, delivering technological advancements unlike any we have seen before, and presenting both significant opportunities and formidable challenges for the criminal justice system,” Hecht said. “This Task Force will meet the urgent need for credible guidance to help policymakers and practitioners navigate a complex and rapidly evolving landscape in ways that maximize benefits, minimize harms, and improve justice.”

The group’s work will be supported by Task Force Director Jesse Rothman — who has worked as a researcher, educator, policy analyst, and funder across the criminal justice and emerging technology landscape — as well as researchers at RAND, a leading research organization with extensive expertise in criminal justice and emerging technologies. RAND will conduct original research on the safe, ethical, and effective integration of AI into criminal justice agencies and processes.

“AI brings powerful tools to affect public safety and efficiency in the criminal justice system,” said Jason Matheny, RAND’s president and chief executive officer. “RAND’s strength is in objective research and rigorous analysis — and that’s how we’ll contribute most, by ensuring that policymakers at all levels have clear, informed guidance.”

I am quite excited to see what this new Task Force may produce, and especially because AI tools of all sorts (and our understanding of AI potential and risks in criminal justice systems) are certainly going to evolve over the next 18 months.  As but one sentencing example, the use of an AI version of a deceased victim in an Arizona sentencing hearing was big news last month, but it could readily become old hat by December 2026.

"Ending the Presumption of Reasonableness and Using Data to Reduce Sentencing Disparities"

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

The idea that one’s punishment should depend on the crime committed rather than which judge happens to do the sentencing strikes most as uncontroversial, if not a requirement for a fair sentencing regime.  Forty years ago, the passage of the Sentencing Reform Act promised just that result. Increased data availability allows us to evaluate the project’s success.  The results are not encouraging.

Federal defendants are sentenced using guidelines issued by the United States Sentencing Commission that sometimes bear little relation to the underlying wrongdoing.  This has created a split among judges, with some following the guidelines and others rejecting them. The consequences are arbitrariness in sentencing and unwarranted disparities across offenders.

In 2007, the Supreme Court permitted appellate courts to presume the reasonableness of guideline sentences, largely insulating those sentences from judicial review.  Much has changed since then, and it is time for the presumption to go.  The findings of the original data analysis presented in this Article, as well as developments since the Court’s decision, show that the claims made in support of the presumption are unfounded.  In fact, some of the related case law rests upon provably false empirical premises.

Today, most sentences are not within the range set by the guidelines.  Favoring the minority of sentences that are within the range results in a sentencing regime incompatible with the overriding statutory aim of avoiding unwarranted sentencing disparities.  Rather than presuming the reasonableness of within-guideline sentences, the courts can chart a course correction by prioritizing the data on actual sentences from the Sentencing Commission.  Such a shift would achieve more consistent sentences across offenders convicted of similar crimes.

Highlighting efforts to fill a gender gap in second-look sentencing reform efforts

The New York Times has this notable new article about second-look sentencing reform efforts in the states.  The full headline highlights the article's themes: "Prison Reform Left Women Behind. Then Prosecutors Stepped In.  California passed the nation’s first prosecutor-initiated resentencing law in 2018. Few women benefited from these laws, until now."  I recommend the lengthy article in full, and here are some excerpts:

In late 2023, Dena Hernandez returned to her room inside the women’s prison in Chowchilla, Calif., and spotted a packet in the mail. It contained a letter saying the Los Angeles district attorney was looking for incarcerated women who might be eligible for shortened sentences. “Your case,” the letter read, “has been identified for initial review.”

Ms. Hernandez was in shock. She was 13 years into a 28-year prison sentence for carjacking. Hours away from her family, she had received just one visit. There were no lawyers puzzling over her case or community groups pleading for clemency. “Is this real?” Ms. Hernandez asked her roommate.

The letter was from an organization called For the People. It said there was a law in California allowing prosecutors to revisit old sentences that are “no longer in the interest of justice.” After going into effect in California in 2019, the law passed in four more states, part of a wave of criminal justice reform efforts washing over the United States.

But of all of the people who had come home under these resentencing laws, very few were women. Ms. Hernandez’s case was about to become part of an effort in California to change that....

[Hillary] Blout founded For the People to help implement the law and, eventually, to push other states to adopt it, too. Washington, Oregon, Illinois and Minnesota all followed suit.  By 2023, according to For the People’s count, roughly 1,000 people had been resentenced. But a trend had emerged: Only a handful were women....

Men, who account for more than 90 percent of the United States’ incarcerated population, inevitably made up a vast majority of cases. But some criteria that prosecutors were using to identify candidates for resentencing had the unintentional effect of excluding women.  In some California counties, prosecutors screened out anyone convicted of violent offenses, regardless of the circumstances.  But Ms. Blout found that women convicted of violent offenses often play subordinate roles in crimes perpetrated by men.  Those men are frequently their abusers.  In some cases, their victims are those abusers.

The criteria left little room for these nuances, and overlooked other societal harms. Women are disproportionately unsafe in prison; while they make up just 7 percent of the federal and state prison population, they account for more than one quarter of victims of sexual abuse by prison staff.  Just last year, a women’s prison in Dublin, Calif., nicknamed the “rape club,” was shut down for its rampant culture of sexual violence.

South Carolina complete execution of double murderer 20 years after his crimes

As reported in this AP piece, a "South Carolina man sent to death row twice for separate murders was put to death Friday by lethal injection in the state’s sixth execution in nine months. Stephen Stanko, 57, was pronounced dead at 6:34 p.m." Here is more:

He was executed for shooting a friend and then cleaning out his bank account in Horry County in 2005. Stanko also was serving a death sentence for killing his live-in girlfriend in her Georgetown County home hours earlier, strangling her as he raped her teenage daughter. Stanko slit the teen’s throat, but she survived....

Three family members of his victims stared at Stanko and didn’t look away until well after he stopped breathing....

Stanko was leaning toward dying by South Carolina’s new firing squad, like the past two inmates before him. But after autopsy results from the last inmate killed by that method showed the bullets from the three volunteers nearly missed his heart, Stanko went with lethal injection.

Stanko was the last of four executions scheduled around the country this week. Florida and Alabama each put an inmate to death on Tuesday. On Wednesday, Oklahoma executed a man transferred from federal to state custody to allow his death....

Stanko is the sixth inmate executed in South Carolina in nine months after the state went 13 years without putting an inmate to death because it could not obtain lethal injection drugs. The South Carolina General Assembly approved a firing squad and passed a shield law bill which allowed the suppliers of the drugs to stay secret.

"From Punishment to Prevention: A Better Approach to Addressing Youth Gun Possession"

The title of this post is the title of this new publication from The Sentencing Project.  The report runs more than 30 pages and an extensive executive summary comprises the first three substantive pages, and here are ject a few paragraphs from that summary which highlight the report's themes:

Reducing gun violence should be an urgent priority in the United States.  However, imposing harsh consequences for all adolescent gun possession cases harms urban youth of color disproportionately without benefits for community safety. Other approaches to reducing gun violence are far more equitable and effective....

Rather than keeping us safer, aggressive law enforcement and inflexible and punitive court responses to youth gun possession are likely to worsen gun violence and other crime by youth.  Meanwhile, inflexible punitive responses to adolescent gun possession damage young people’s futures, and they exacerbate the justice system’s already glaring racial disparities.  The most promising approaches to reduce gun violence involve comprehensive initiatives in which courts work with community partners to address the reasons why youth and young adults obtain guns, and whole communities mobilize to engage and intervene with youth and young adults who are at maximum risk for gun violence....

Given the varied reasons why youth carry firearms and the vastly different risks posed by different categories of youth, a one-size-fits-all approach to gun possession cases is ineffective and harmful.  For most youth arrested on gun possession charges, research makes clear that punitive responses are counterproductive.