Sentencing Law and Policy

BJS releases notable new recidivism data for 2012-released state prisons

The Bureau of Justice Statistics released this notable new report about the recidivism rates over five years for a set of state prisoners released in 2012. The full title of the 34-page report is "Recidivism of Prisoners Released in 34 States in 2012: A 5-Year Follow-Up Period (2012–2017)." Here is the introduction and "Highlights" from the first page of the report:

Among state prisoners released in 2012 across 34 states, 62% were arrested within 3 years, and 71% were arrested within 5 years.  Among prisoners released in 2012 across 21 states with available data on persons returned to prison, 39% had either a parole or probation violation or an arrest for a new offense within 3 years that led to imprisonment, and 46% had a parole or probation violation or an arrest within 5 years that led to imprisonment.

The Bureau of Justice Statistics (BJS) used prisoner records from the National Corrections Reporting Program and criminal history data to analyze the post-release offending patterns of former prisoners both within and outside of the state where they were imprisoned.  This study randomly sampled about 92,100 released prisoners to represent the approximately 408,300 state prisoners released across 34 states in 2012.  These 34 states were responsible for 79% of all persons released from state prisons that year nationwide.

HIGHLIGHTS

• About 6 in 10 (62%) prisoners released across 34 states in 2012 were arrested within 3 years, and 7 in 10 (71%) were arrested within 5 years. „
• Nearly half (46%) of prisoners released in 2012 returned to prison within 5 years for a parole or probation violation or a new sentence. „
• Eleven percent of prisoners released in 2012 were arrested within 5 years outside of the state that released them. „
• Eighty-one percent of prisoners age 24 or younger at release in 2012 were arrested within 5 years of release, compared to 74% of those ages 25 to 39 and 61% of those age 40 or older. „
• During the 5-year follow-up period, an estimated 1.1 million arrests occurred among the approximately 408,300 prisoners released in 2012. „
• Sixty-two percent of drug offenders released from prison in 2012 were arrested for a nondrug crime within 5 years. „
• The annual arrest percentage of prisoners released in 2012 declined from 37% in Year 1 to 26% in Year 5. „ Of prisoners released in the 19 states in the 2005, 2008, and 2012 recidivism studies, the percentage arrested within 5 years declined from 77% of 2005 releases, to 75% of 2008 releases, to 71% of 2012 releases.

CCJ releases June 2021 update on "Pandemic, Social Unrest, and Crime in U.S. Cities."

I noted here last summer that the Council on Criminal Justice (CCJ) had launched an important, timely and impressive new commission titled the "National Commission on COVID-19 and Criminal Justice" and headed by two former US Attorneys General.  That commission has produce a number of important works (examples here and here and here), and it helped produced a series of reports on recent crime trends under the heading "Pandemic, Social Unrest, and Crime in U.S. Cities."  The latest version of this report, called a June 2021 update, is available for download at this link.  Over at the CCJ website, one can find this press release titled "New Data Shows Homicide Rise Continues in U.S. Cities, but at Slower Rate," which provides this overview of the crime data and also details on additional CCJ work in this arena:

Murder counts in major American cities continued to rise throughout the first half of 2021, but the pace of the increase slowed from the first to the second quarter of the year, according to research released today by the Council on Criminal Justice (CCJ).

Examining homicide in 22 cities through the first six months of 2021, the study found that the number of murders was 16% greater than during the same period in 2020 — claiming an additional 259 lives — and 42% greater than during the first half of 2019, representing an additional 548 lives.  Gun assaults (+5%) and aggravated assaults (+9%) also were up during the first half of 2021 compared to the same time frame last year, while drug and most property crimes fell.

Even with the 2021 increase, the homicide rate for the cities studied was about half what it was for those cities at the peak of violent crime rates in the early 1990s (15 deaths per 100,000 residents in those cities versus 28 per 100,000 in 1993). Nevertheless, the study’s authors called for “urgent action” to address the spike in violence.

A new CCJ panel will investigate the causes of rising violence and help decisionmakers translate rigorous evidence and lived experience into effective policy and practice.  Launched this week, the Violent Crime Working Group includes 15 leaders from community violence intervention organizations, law enforcement, the public health sector, and academia. The group is chaired by violence-reduction expert Thomas Abt, a Council Senior Fellow....

Rates of other major offenses declined in the first half of 2021, the new data released today shows.  Robbery (-6%), residential burglary (-9%), nonresidential burglary (-9%), larceny (-6%), and drug offense (-12%) rates all fell from the same period in 2020.  Motor vehicle theft rates, however, were 21% higher in the first half of 2021 than the year before.

"The Informed Jury"

The title of this post is the title of this notable new paper authored by Daniel Epps and William Ortman now available via SSRN.  Here is its abstract:

The right to a criminal jury trial is a constitutional disappointment.  Cases almost never make it to a jury because of plea bargaining. In the few cases that do, the jury is relegated to a narrow factfinding role that denies it normative voice or the ability to serve as a meaningful check on excessive punishment.

One simple change could situate the jury where it belongs, at the center of the criminal process.  The most important thing juries do in criminal cases is authorize state punishment.  But today, when a jury returns a guilty verdict, it authorizes punishment without any idea of what is in store for the defendant.  This principle of jury ignorance is a profound mistake.  It is unmoored from history and the core function of the jury to authorize punishment.  Worse, it exacerbates the criminal legal system’s predilection for excessive severity.

This Article offers and defends a proposal to replace ignorant juries with informed ones, by requiring juries to be told of the statutory minimum and maximum punishment in every case before being asked to return a conviction.  Informed juries would change the dynamics of criminal justice for the better.  In individual cases, punishment information would make juries more careful before convicting and would sometimes lead juries to refuse to convict where punishment would be excessive and unjust.  But more importantly, informed juries would provide systemic benefits.  Requiring informed juries would set in motion a political feedback loop that would counteract existing incentives for legislators and prosecutors to prefer severity.  In addition to being good policy, there are powerful arguments that informed juries deserve to be recognized as part of the constitutional jury-trial right.

"Disrupting Death: How Dedicated Capital Defenders Broke Virginia's Machinery of Death"

The title of this post is the title of this new paper authored by Corinna Lain and Doug Ramseur now available via SSRN. Here is its abstract:

Virginia’s repeal of capital punishment in 2021 is arguably the most momentous abolitionist event since 1972, when the Supreme Court invalidated capital punishment statutes nationwide.  In part, this is because Virginia’s repeal marks the first time a Southern state abolished the death penalty.  And in part, it is because even among Southern states, Virginia was exceptional in its fealty to capital punishment.  Virginia had the broadest death penalty statute in the country, coupled with a post-conviction review process that was lightning fast and turned death sentences into executions at a rate five times the national average.  Virginia holds the record for the most executions in the history of the United States, so how did it go from all-in on the death penalty to abolition?

A critical piece of the puzzle was the fact that Virginia had not seen a new death sentence in ten years, and had only two people left on death row.  The death penalty was dying on the vine, and how that came to be owes largely to Virginia’s dedicated capital defenders, who literally worked themselves out of a job by disrupting the machinery of death at every turn.  In this Article, we (a law professor and a former regional capital defender) tell the story behind the story of Virginia’s plunging death sentences — what was happening in the trenches that the transcripts and plea deals don’t show. This is the backstory as we know it, and we share it here both to better understand Virginia’s journey, and to serve as a resource for others still navigating theirs.

Is the politics of crime and punishment now different than in our recent history?

The question in the title of this post is promoted by this recent Politico piece by Joshua Zeitz headlined "'Law and Order' has Worked for the GOP Before. This Crime Boom Might be Different." I recommend the piece in full, and here are a few excerpts:

In the 1970s and 1980s, Republican candidates successfully used violent crime as an issue to attract white voters. Fused with concerns over the economy, busing and neighborhood integration, “law-and-order” politics dislodged millions of working- and middle-class white voters from their former home in the Democratic Party. No politician did it better than Richard Nixon, whose White House staff aimed, in their own words, “to orient the Silent Majority toward issues other than foreign policy (e.g.: inflation, crime, law and order, etc.) and then to increase support for the President’s foreign and domestic proposals.”

But 2021 is not 1971. Even allowing for the public’s very real perception of violent crime as a top national priority, the nation’s political demography has changed dramatically over the last half century. Then, many working-class and middle-class voters lived in cities or inner-ring suburbs where crime was not a hypothetical concern; it was an everyday reality. By contrast, today most voters the GOP hopes to claw back inhabit increasingly diverse suburban areas where crime is not an everyday reality. Polls show that while most voters believe crime is on the rise, they don’t believe it threatens their neighborhoods.

It’s true that crime might function as a mechanism to motivate the conservative base. But to move voters from the Democratic to the Republican column, it will need to capture the independent voters who swung from Trump to Biden in the last election. And here the historical analogy breaks down....

[V]ast demographic changes over the past 50 years have re-sorted the American population.  Today’s swing voters are affluent suburbanites, not working-class residents of transitional urban neighborhoods.  The places where violent crime is on the rise — namely, cities — are deep blue and unlikely to change.  The places where violent crime is not on the rise — namely, suburbs — are the new political battleground....

Of course, none of this is to say that some of the urban voters affected by today’s rise in crime might not be up for grabs. Studies show that low-income non-white families are far more exposed to violent crime and more likely to perceive it as an immediate threat.  Republicans have made inroads with Latino voters, and in recent months, it has become clear that last year’s racial justice awakening obscured a more complicated reality about the Black electorate, which is diverse — not a monolith — but generally concerned about crime and welcoming of a greater police presence on the streets if and when that presence is protective of their safety....

The 2022 election cycle is still in the distant future, and in politics, things change quickly.  Judging by history and by polling, however, crime may not provide the winning message that the GOP is looking for.  Yesterday’s swing voters are not today’s swing voters, and in 2021, “law and order” doesn’t mean the same thing it did in 1971.

This article is focused on demographics to rightly observe that the politics of crime and punishment has evolved over the last half-century.  But I also think there is a lot more to the story of the changing political landscape, ranging from bipartisan disaffinity for (some parts of) the war on drugs and much greater public awareness — especially among younger Americans and libertarian-leaning conservatives — of the racial and economic impacts of mass incarceration and collateral consequences.  What all this means for elections in the 2020s remains to be seen, but nobody should forget that Donald Trump ran in 2016 on a "law and order" message and then signed a major federal criminal justice reform bill into law just two years later.  Put simply, in this century, I think both the politics and the practice of crime and punishment are quite nuanced and often quite unpredictable.

Ohio Justice provides insider take on "sentencing by ambush" due to plea bargaining process

This local court press piece, headlined "Justice Admonishes ‘Sentencing by Ambush’," reports on a notable new law review article authored by Ohio Supreme Court Justice Michael Donnelly. Here are excerpts from the press piece (with links from the original):

An Ohio Supreme Court justice is seeking reforms to plea deal processes, which he says are full of unknowns for defendants, who often surrender their constitutional rights.

Justice Michael P. Donnelly lists his concerns and solutions about discrepancies in plea agreements and their outcomes in an article published by the Akron Law Review titled, “Sentencing by Ambush: An Insider’s Perspective on Plea Bargaining Reform.”

In the piece, Justice Donnelly details observations from his 14 years as a Cuyahoga County Common Pleas judge and how his experiences on the trial court bench, paired with his perspective as a member of the Supreme Court, compelled him to write about the need for systemic change to plea arrangements.

“Would you ever enter into a contract when you had no idea what benefit you would receive… [or] without knowing the terms to which you were obligating yourself?” Justice Donnelly asks in the article. “Regrettably, … criminal defendants do that every single day.”

The article explains the legal course of plea bargaining: a prosecutor and defense attorney settle on a recommended punishment, and a judge ultimately determines the sentence. Justice Donnelly highlights multiple procedural flaws that occur in pursuit of this type of conclusion to a case.  The fundamental issues Justice Donnelly raises are magnified because U.S. Department of Justice researchers estimate 90% to 95% of cases — state and federal — are resolved through plea deals.

He notes that prosecutors can charge multiple and different offenses based on the facts from a single event as a means of leverage against a defendant.  The high court jurist also points out two main inconsistencies in plea proceedings: Not all judges accept settlements between the prosecution and defense, and not all plea negotiations are on the record.

“One of the biggest threats to public confidence in the criminal justice system [stems] from off-the-record sentencing representations, whether from a judge in chambers or a defense attorney’s informed speculation,” Justice Donnelly wrote.  As a means for transparency, the justice recommends that all discussions take place in open court. He believes a documented dialogue would ensure negotiations are fair between the prosecution and defense, which would include stating the rationale for the agreement....

Addressing sentencing issues also is the aim of a larger initiative, led by Chief Justice Maureen O’Connor and Justice Donnelly, to develop a statewide sentencing database.

Both efforts emphasize the need for transparency as a way to provide more uniform and proportional sentences across the state, while limiting implicit bias.  “This reform would provide decision-makers (judges, prosecutors, defense counsel, and legislators) with information that is essential to ensure that better decisions are made regarding the most serious issue of incarcerating individuals,” Justice Donnelly said.

Prison Policy Initiative details "Nine ways that states can provide better public defense"

Ginger Jackson-Gleich and Wanda Bertram at Prison Policy Initiative have this new briefing fully titled "Nine ways that states can provide better public defense: We suggest a few questions to ask to assess the strength of your state's public defense system." Here is part of its introduction and conclusion:

One of the many reasons mass incarceration persists is because people too poor to afford their own lawyers are denied meaningful representation in court. This injustice happens because public defense systems — the systems tasked with providing attorneys to those in need — are severely underfunded and overburdened.

While every state and local public defense system is unique, we’ve identified nine urgent and common problems that plague public defense systems nationwide.  Unfortunately, there isn’t enough current data for us to explain how every state stacks up on these issues, but we’ve done the next best thing: We’ve created a list of nine questions you can ask to assess where your state’s public defense system might need help, and we’ve highlighted helpful and detailed resources that can assist reform efforts....

Even an excellent public defense system in every state would not, on its own, end mass incarceration, but ensuring that every person accused of a crime has satisfactory assistance of counsel would certainly help.  As many others have noted before us, the constitution’s promise that every criminal defendant has the right to legal counsel has never been a reality in this country.

Today, at least 4.9 million people are arrested annually, most of them poor, and virtually every public defense system struggles to represent all of the defendants who can’t afford their own lawyer.  Until states remove the many barriers to providing adequate public defense, this country will continue to be one where due process and equal protection are imaginary — a place where people are told to believe in a constitutional right that does not actually exist.

"Just Algorithms: Using Science to Reduce Incarceration and Inform a Jurisprudence of Risk"

The title of this notable new forthcoming book authored by Christopher Slobogin.  It is also the title of this new SSRN posting which provides a preview of the book and an article that sets forth some of its contents. Here is the SSRN posting abstract:

Statistically-derived algorithms, adopted by many jurisdictions in an effort to identify the risk of reoffending posed by criminal defendants, have been lambasted as racist, de-humanizing, and antithetical to the foundational tenets of criminal justice.  Just Algorithms argues that these attacks are misguided and that, properly regulated, risk assessment tools can be a crucial means of safely and humanely dismantling our massive jail and prison complex.

The book explains how risk algorithms work, the types of legal questions they should answer, and the criteria for judging whether they do so in a way that minimizes bias and respects human dignity. It also shows how risk assessment instruments can provide leverage for curtailing draconian prison sentences and the plea-bargaining system that produces them.  The ultimate goal of the book is to develop the principles that should govern, in both the pretrial and sentencing settings, the criminal justice system's consideration of risk.  Table of Contents and Preface are provided, as well as a recent article that tracks closely two of the book's chapters.

House hearing to explore "How Court-Imposed Fees and Fines Unjustly Burden Vulnerable Communities"

Tomorrow morning at 10am ET, the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security will hold a hearing titled "A Fine Scheme: How Court-Imposed Fees and Fines Unjustly Burden Vulnerable Communities." This hearing should be live-streamed at this link.

Via email, I received notice that Alexes Harris will testify, and that her essay “Monetary Sanctions as a Pound of Flesh” was just published today as part of the Brennan Center's Punitive Excess series.  Here is a paragraph from that essay: 

The system of monetary sanctions reinforces our two-tiered system of justice: one for people with financial means and one for people without.  Within a society riven by so much inequality, a system of punishment based on economic resources can never be fair or just.  This “coerced financialization” perfectly and purposefully places the freedom of poor and racially marginalized people on a perpetual layaway plan.  It’s a system so fully embedded in our criminal legal system that the American Rescue Plan Act, passed by Congress in March 2021 to alleviate the financial pains of the Covid-19 pandemic, allowed private collectors and courts to seize the $1,400 stimulus grants from people burdened with unpaid penal debt, either public or private.

Shouldn't federal prosecutors already be doing what they can to minimize the unjust crack-powder sentencing disparity?

At last month's Senate Judiciary Committee Hearing on "Examining Federal Sentencing for Crack and Powder Cocaine," the Biden Administration through the testimony of Regina LaBelle rightly stated that the crack-powder sentencing disparity produces "significant injustice":

The Biden-Harris Administration strongly supports eliminating the current disparity in sentencing between crack cocaine and powder cocaine.  The current disparity is not based on evidence yet has caused significant harm for decades, particularly to individuals, families, and communities of color.  The continuation of this sentencing disparity is a significant injustice in our legal system, and it is past time for it to end.  Therefore, the Administration urges the swift passage of the “Eliminating a Quantifiably Unjust Application of the Law Act,” or the “EQUAL Act.”

In addition, the US Department of Justice submitted testimony (linked below) that rightly stated that "it is long past time" to end the crack-powder sentencing disparity:

The Department strongly supports the legislation, for we believe it is long past time to end the disparity in sentencing policy between federal offenses involving crack cocaine and those involving powder cocaine.  The crack/powder sentencing disparity has unquestionably led to unjustified differences in sentences for trafficking in two forms of the same substance, as well as unwarranted racial disparities in its application.  The sentencing disparity was based on misinformation about the pharmacology of cocaine and its effects, and it is unnecessary to address the genuine and critical societal problems associated with trafficking cocaine, including violent crime.

Download DOJ EQUAL Act Testimony- FINAL

In light of these forceful statements, I have been optimistic that the EQUAL Act might move forward in Congress fairly soon even though the pace of congressional action is always uncertain.  At the same time, I hoped that federal prosecutors under the authority of Attorney General Garland might do what they could ASAP, in the exercise of their charging and sentencing authority, to minimize the impact of the crack-powder disparity as Congress works on a permanent legislative fix.  After all, if DOJ really believes that "it is long past time to end the disparity" and that the disparity is based on "misinformation" which produces "unwarranted racial disparities," then a department purportedly committed to justice surely ought not keep charging crack mandatory minimums and advocating for guideline sentences based on this disparity.

But I have heard from defense attorneys in the know that statements about existing crack sentencing provisions creating "significant injustice in our legal system" have seemingly not trickled down to federal prosecutors, who are still generally charging crack mandatory minimums and arguing for within-guideline crack sentences.  And I have be authorized to share this recent statement from the Federal Defenders to DOJ: "We were glad to see the Department’s recent support for legislation to end the crack-powder disparity but reports from the field indicate that line prosecutors continue to indict mandatory-minimum crack cases and seek guideline sentences that rely on the discredited ratio."

Talking the talk to Congress about reform is an important aspect of what the executive branch can do to improve our justice system. But the Justice Department can and should also be expected to walk the walk.  But so far, it seems, federal prosecutors are not really ready to give up the crack-powder disparity, even though DOJ asserts that "it is long past time" to do so. Sigh.

Excited for the launch of Inquest, "a forum for advancing bold decarceral ideas"

I was pleased to receive via email this morning the first official announcement of Inquest, which as explained here "is published by the Institute to End Mass Incarceration [but] not the voice of the Institute."   Here are excerpts from the Inquest mission page:

Inquest is a forum for advancing bold ideas to end mass incarceration in the United States. Here, you will find original, insightful work by thinkers and doers across a broad range of experience and expertise, united in the belief that mass incarceration is an epic injustice that can and must urgently end.

Our authors include leading and new voices across fields, from activism and community organizing, to law and policy, to academia, journalism, and public health. Drawing on their lived experience and their accumulated wisdom, they come here to share ideas, narratives, and analyses that boldly explore the causes and consequences of mass incarceration and that provoke rigorous discussion — all aimed at driving thoughtful action....

Rather, our mission is to create a space where the voices of those doing the thinking and the work — the people closest to the problem, including those directly impacted by mass incarceration — can come together to share ideas and be heard as they pursue bold solutions.

And here is some of the text from the introductory email that I received along with links to the first set of materials and essays on the site:

We are so excited to share this new publication and its core mission with you.  Our opening slate of original, thought-provoking essays is below.  We hope you will take a look today and come back often. Inquest is a forum for advancing bold ideas to end mass incarceration.  The publication features original, insightful work by thinkers and doers across a broad range of experience and expertise, united in the belief that our system of mass incarceration can and must urgently end....

Read a welcome note from our founding editors and visit Inquest to check out our opening slate of essays, all linked below:

Joel Castón, the first incarcerated person ever elected to public office in Washington, D.C., shares his story and vision with Inquest.

Tomas Keen, incarcerated in Washington State, highlights the problems with a prison closure plan.

"To get to real justice, we have to stop depending on the department bearing that name." — Rachel Barkow & Mark Osler

Maneka Sinha on forensics: "[M]any of the reforms proposed to date . . . serve to shore up the legitimacy of the field in the same ways that conventional reform proposals do in the policing context."

All these essays look great, and I am very excited to keep up with both Inquest and the new Institute to End Mass Incarceration.

Reviewing Biden Administration's uninspired criminal justice reform efforts

Law360 has this lengthy new article, headlined "Advocates Frustrated By Biden's Silence On Justice Reform," that provides a lengthy review of various criminal justice reform efforts to date by the Biden Administration.  As the headline suggests, advocates are so far underwhelmed.  Here are excerpts from a piece worth reading in full:

One of President Joe Biden's most powerful tools for advancing criminal justice reform is his voice and yet, despite his campaign promises, he has been mostly silent on the issue while in office, frustrating criminal justice reform advocates.

Advocates for ending mass incarceration and mandatory minimum sentencing would have liked Biden to do more than just talk about criminal justice reform in his first six months in office, but they are even more frustrated by the fact that he isn't loudly advocating for reform and isn't letting people know when he will act on his reform promises....

Criminal justice advocates acknowledge that Biden started his presidential term with a full plate of pressing issues to address: the COVID-19 pandemic, an economic downturn, extreme political division and a migrant crisis at the southern border that could have sidelined criminal justice reform in his administration's early days.  And now, six months later, Biden's administration is still grappling with these issues in addition to combating a spike in homicides and surges in coronavirus cases in areas with low vaccination rates.

But advocates and experts say that Biden could at least publicly support more criminal justice reform legislation that has been introduced in Congress and dispel myths being perpetuated by some Republican lawmakers that releasing people from prison increases crime....

Biden alluded to criminal justice reform in his inaugural speech and in a presidential address marking his first 100 days in office.  He also included snippets of criminal justice reform in his plans for revitalizing jobs, helping American families and fighting gun violence....

Udi Ofer, director of the American Civil Liberties Union's justice division, said that Biden's crime prevention plan doesn't recognize that the majority of what police do is arrest people for low-level offenses like drug possession, and these arrests don't stop homicides and gun violence. "President Biden has invested so much political capital in laying out his crime prevention plan, and we have not seen the same sort of commitment laid out for criminal justice reform and for police accountability," Ofer said.

A lot of people are waiting to hear him say loud and clear that he recognizes the flaws in the justice system and genuinely wants to help fix them.

Some experts say that Biden's silence on criminal justice reform could be a calculated political move to straddle party lines and keep members of his own party together.  Republicans and Democrats are in disagreement about police reform. Progressive Democrats are calling for defunding the police and older party members fear that is too radical a move, according to Jacinta Gau, a criminal justice professor at the University of Central Florida....

Rumblings of Biden's early plans for handling criminal justice reform-related issues has already sparked outcry from lawmakers and advocates.  A coalition of 20 advocacy organizations sent a July 19 letter to Biden urging him not to reimprison people who were released to home confinement during the pandemic and instead commute their sentences....

Even though advocates and experts want Biden to move more quickly on criminal justice reform, they also don't want him to make reactionary "tough on crime" policies that have been devastating for communities of color and led to mass incarceration.  However, they say Biden and his administration don't need to "reinvent the wheel" on criminal justice reform because organizations and scholars have already done the research on what works and what doesn't work.  The administration just needs to follow their lead, they say.

Though I am not surprised it goes unmentioned in this article, I have to bring up again in this context that the Biden Administration has so far missed the opportunity to appoint reform-minded persons to the US Sentencing Commission.  Of course, as I have lamented in post after post, the Biden Administration has so far failed to appoint anyone to the USSC.  As I stressed here, the US Sentencing Commission, when functional, has the power and the ability to be a significant agent for federal criminal justice reform.  But, unless the Biden Administration makes a lot of appointments very soon, I fear this important agency might not be functional until 2022 or perhaps even later.  Sigh. 

"Death Penalty Exceptionalism and Administrative Law"

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

Prosecutors ask for death sentences, and judges and juries impose them, but the people who actually carry out those sentences are corrections department officials — administrative agency personnel. In this symposium contribution, I explore a little known nook of administrative law, examining how administrative law norms work in the execution setting of lethal injection.  What I find is death penalty exceptionalism — the notion that “death is different” so every procedural protection should be provided — turned on its head. 

Lethal injection statutes just say “lethal injection,” providing no guidance whatsoever to those who must implement them. Prison personnel have no expertise in deciding what drugs to use or how to perform the procedure.  And the usual administrative law devices that we rely on to bring transparency and accountability to the agency decision-making process are noticeably absent.  The culmination of these irregularities is a world where lethal injection drug protocols are decided by Google searches and other decision-making processes that would never pass muster in any other area of administrative law.

In the execution context, death penalty exceptionalism means that the minimal standards that ordinarily attend administrative decision-making do not apply.  It means that when the state is carrying out its most solemn of duties, those subject to its reach receive not more protection, but less.  In the end, when the death penalty meets administrative law, administrative law norms get sullied and the death penalty loses the one comfort one might otherwise have: that when the state takes human life, it takes extra care to do it right.  What happens at the intersection of these two great bodies of law is a result not good for either.

US Sentencing Commission releases more detailed "Compassionate Release Data Report" for 2020

As detailed in this post, last month the US Sentencing Commission released a short data report titled "Compassionate Release Data." That report provided notable but very basic numbers on the grants and denials of federal compassionate release motions nationwide for calendar year 2020.  The report revealed, as further discussed in this follow-up post, that judges granted a good number of these motions once COVID hit, but that the Bureau of Prisons approved stunningly few compassionate release applications and that there were considerable disparities in grant rates in different judicial districts.

I was quite pleased to see the USSC promulgate any compassionate release data, but I was eager for additional data beyond circuit and district breakdowns of these motions.  In my prior post, I hoped we might at some point see "a lot more offender demographic information (e.g., race, gender, age of movant) and sentence modification information (e.g., primary sentenced offense and amount of sentence reduction)."  Excitingly, the USSC has now released this updated expanded data report that provides a lot more details about compassionate release grants for calendar year 2020.

Specifically, this latest report includes data on "Demographic Characteristics Of Offenders Receiving Compassionate Release" and on "Selected Sentencing Factors For Offenders Receiving Compassionate Release" and on "Type Of Crime For Offenders Receiving Compassionate Release" and on "Original Sentence Length For Offenders Receiving Compassionate Release." I am so very pleased to see this additional data, although the extent of sentence reductions is still a data point not covered which seems to me to be important to understand the full compassionate release story (e.g.,ten granted sentence reduction motions that reduce sentences by five months seem quite different than ten granted motions reducing sentences by five years.)   

Upon first glace, it is hard to see if there are any particularly distinctive or disturbing patterns in this enhanced USSC compassionate release data.  Interestingly, looking at the demographics, I noticed that the percentage of black prisoners securing a sentence reduction in 2020 (which was 45.2% according to the USSC data) appears to be greater than the percentage of black prisoners in federal prison (which was 34.9% as of this USSC report with March 2021 data).  Likewise, I was intrigued to see that the percentage of prisoners convicted of drug trafficking securing a sentence reduction in 2020 (which was 53% according to the USSC data) appears to be greater than the percentage of such prisoners in federal prison (which was 43% as of this same USSC report).   

I hope that the US Sentencing Commission not only continues to release more and more granular data about sentencing reduction grants.  I also hope the USSC will (a) track recidivism rates for this population over time, and (b) learn about which guidelines might be seen to produce excessively long sentencing in retrospect as documented through these grants.  The kind of second-look sentencing mechanism now operating the the federal system is not only valuable and important as a means to achieve better justice in individual cases, but also should serve as an important feedback loop providing a kind of on-going audit of the operation of the entire federal sentencing system. 

A few of many prior related posts:

• US Sentencing Commission releases fascinating (and bare bones) "Compassionate Release Data Report" 
• More good coverage of the not-so-good (but still not-so-bad) realities of federal compassionate release realities
• Notable data on BOP resistance to compassionate release requests from federal prisoners
• "How Compassionate? Political Appointments and District Court Judge Responses to Compassionate Release during COVID-19" 
• Tangible example of continuing big sentence reductions in COVID era thanks to the FIRST STEP Act 
• Spotlighting remarkable (but still cursory) data on "compassionate release" after FIRST STEP Act 
• Notable new review and accounting of COVID and federal compassionate release results 
• Another dive into the ugly BOP realities of federal compassionate release during the pandemic

Interesting review of African (and global) trends in capital punishment abolition

The New York Times has this interesting new article on capital punishment around the world under the headline "One by One, African Countries Dismantle Colonial-Era Death Penalty Laws."  Here are excerpts:

Lawmakers in Sierra Leone voted unanimously on Friday to abolish the death penalty, a momentous step that made the West African country the 23rd on the continent to prohibit capital punishment.

The decision was one more step in a long-sought goal of civil society organizations and legal practitioners who see the death penalty as a vestige of Africa’s oppressive colonial history.  “This is a horrible punishment and we need to get rid of it,” said Oluwatosin Popoola, a legal adviser at the rights group Amnesty International, a leading critic of capital punishment.

A vast majority of the 193 member states of the United Nations have either abolished the death penalty or do not practice it.... The vote in Sierra Leone came against the backdrop of a steady march in Africa to discard brutal laws imposed by past colonial masters.  In April, Malawi ruled the death penalty unconstitutional.  In May of 2020, Chad did the same. Nearly half of Africa’s 54 independent countries have abolished the punishment, more than double the number from less than two decades ago.

While death sentences and executions have declined globally in recent years, they do not necessarily reflect the growing number of countries that have banned capital punishment.  At least some of the declines are attributable to the Covid-19 pandemic, which slowed or delayed judicial proceedings in many countries.  And in some, like the United States, federal executions were ramped up in 2020.

As in previous years, China led the 2020 list of countries that execute the most people, killing thousands, according to Amnesty International, which compiles capital punishment statistics.  The exact figures for China are not known, as its data remains a state secret.  Next in 2020 came Iran, which executed at least 246 people, and then Egypt, Iraq, Saudi Arabia, and in sixth place the United States, with 17 executions.  Most of the American executions were of federal prisoners in the last six months of President Donald J. Trump’s term, a turnaround after years of an informal moratorium.

The legislators in Sierra Leone on Friday replaced the death sentence with a maximum life sentence for certain crimes, including murder and treason.  This means that judges will have the power to consider mitigating factors, such as whether the defendant has a mental illness.  They would have had no such flexibility if the lawmakers had voted instead to replace the death penalty with a mandatory life sentence....

Sierra Leone is the first of the English-speaking West African countries to abolish the punishment.  A decade ago, a commission in Ghana recommended abolition, but in recent years efforts have stalled.

In Nigeria, Africa’s most populous country, at least 2,700 people are on death row — the highest number by far on the African continent. Gambia had been on track to abolish the death penalty last year, when a new Constitution was drafted. But it was rejected by Parliament. Still, Gambia’s president has made some significant moves away from capital punishment, Mr. Popoola said.  These are all countries that, like Sierra Leone, obtained independence from the Britain in the late 1950s and 1960s — around the same time as that colonial power was carrying out its own last executions.

"The Boundary Problem of Rights Restoration"

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

By conditioning restoration of felons’ political rights on the repayment of legal financial obligations, states have kept millions of potential voters from participating politically — profoundly altering the shape of the American electorate. Courts have universally upheld the practice by treating the conferral of political rights to nonmembers of the political community as an exercise of legislative grace subject to few constraints, while critics argue that the practice conditions political participation on wealth status and is therefore subject to heightened review.

This Essay traces the disagreement back to a first-order question that has gone overlooked by both sides: how should the juridical status of a disenfranchised citizen’s “lost” rights be understood?  The conventional position, which I call “depoliticization,” imagines that a sentence of disenfranchisement casts a citizen outside the democratic community, thereby voiding all prospective constitutional interests predicated on political membership. However, disenfranchisement is better characterized as the subordination — not the wholesale elimination — of a citizen’s constitutional interests in voting or otherwise participating politically, just as incarceration suppresses but does not eliminate a person’s constitutional interest in physical liberty.  It follows that rights restoration is not the conferral of a new statutory benefit to a political outsider, as courts have assumed, but instead marks the endpoint of state-sustained subordination.

Redescribing the disenfranchisement-to-restoration process in this way aligns with the Richardson Court’s reading of Section 2 of the Fourteenth Amendment, resolves a number of doctrinal contradictions, and — most critically for future litigation challenges — sharpens the constitutional symmetry between fee-based restoration and paradigmatic forms of wealth discrimination like poll taxes and debtors’ prisons.  By framing re-enfranchisement as a constitutional default and drawing attention to disenfranchised citizens’ enduring claim to political presence, this account may also be of use in popular restoration efforts currently underway outside the courts.

"Talking Back in Court"

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

People charged with crimes often speak directly to the judge presiding over their case.  Yet, what can be seen in courtrooms across the U.S. is that defendants rarely “talk back” in court, meaning that they rarely challenge authority’s view of the law, the crime, the defendant, the court’s procedure, or the fairness of the proposed sentence.

With few exceptions, legal scholars have treated the occasions when defendants speak directly to the court as a problem to be solved by appointing more lawyers and better lawyers.  While effective representation is crucial, this Article starts from the premise that defendants have important things to say that currently go unsaid in court.  In individual cases, talking back could result in fairer outcomes.  On a systemic level, talking back could bring much needed realism to the criminal legal system’s assumptions about crime and punishment that produce injustice.

This Article analyzes three types of power that prevent defendants from talking back in court: sovereign, disciplinary, and social-emotional power.  While sovereign power silences defendants through fear, disciplinary power silences defendants by imposing a system of order within which talking back seems disorderly.  Finally, social-emotional power silences defendants by imposing an emotional regime in which self-advocacy is both a breach of decorum and an affront to the court’s perception of itself as a source of orderliness and justice.  The dynamics of social-emotional power are particularly critical to evaluating court reform efforts focused on improving courtroom culture.  Paradoxically, the more solicitous the judge, the less the defendant may feel comfortable raising concerns that challenge the court’s narrative of justice.

Across political spectrum, insightful folks saying in insightful ways that Prez Biden must do better on criminal justice reform

The news to start this work week that the Biden Justice Department is not disputing the legal opinion that federal prisoners released into home confinement would be returned to prison after the pandemic has likely contributed to the end of this work week bringing a number of effective commentaries rightly asserting that Prez Biden continues to come up short on criminal justice issues.  Notably, these commentary are coming from across the political spectrum as evidenced by these pieces:

From Samantha Michaels at Mother Jones, "Biden Said He’d Cut Incarceration in Half. So Far, the Federal Prison Population Is Growing."

From Lars Trautman at The Washington Examiner, "Biden’s criminal justice inaction is nothing but malarkey"

I recommend both of these shorter pieces, but I especially want to encourage everyone to read this lengthy Washington Post magazine commentary by Piper Kerman headlined "She accidentally provided the ‘Lose Yo Job’ soundtrack to Biden victory memes this fall.  He could learn a lot from hearing her story."  In fact, we can all learn a lot from her story, as brilliantly told and contextualized by Piper Kerman, and her piece is a useful reminder that Vice-President Harris ought not be left out of discussions and criticisms of the tepid criminal justice reform efforts of the Biden Administration to date.

As Eleventh Circuit works though ACCA "occasions different" mess, Judge Newson flags Apprendi "prior conviction" issues

A helpful reader alerted me to an interesting new split Eleventh Circuit panel decision in US v. Dudley, No. 19-10267 (7th Cir. July 22, 2021) (available here), concerning application of the severe mandatory minimum in the federal Armed Career Criminal Act.  As regular readers know, ACCA converts the 10-year maximum prison term for illegal gun possession by a felon into a 15-year mandatory minimum if the defendant has the wrong kind of prior convictions.  The basic issue in Dudley is a topic also to be considered by the Supreme Court this fall in Wooden v. US, namely ACCA's requirement that key prior offenses needed to be "committed on occasions different from one another."  In Wooden, the facts of the prior convictions are not in dispute, and so the Supreme Court will likely just explore the legal meaning of "occasions different from one another."  In Dudley, part of the debate concerns uncertainty about the facts of the prior convictions, and so the Eleventh Circuit panel has to discuss how these facts can be proved.

Working through a variety of complicated ACCA precedents, the majority in Dudley ultimately decides that "the district court did not err in relying on the prosecutor’s factual proffer in Dudley’s plea colloquy to find by a preponderance of the evidence that the three qualifying prior convictions for Alabama assault occurred on three separate, distinct occasions."  For hard-core ACCA fans, the majority's discussion might be interesting.  But hard-core Sixth Amendment fans will especially want to check out Judge Newsom's lengthy partial dissent which flags the significant Apprendi issues raised by prior rulings and this case.  Here is are some passages from the partial dissent to show why the whole opinion is worth checking out:

For starters, why doesn’t judicial factfinding involving ACCA’s different-occasions requirement itself violate the Sixth Amendment?  After all, we’ve described the different-occasions inquiry as a factual one....

Of course, I recognize that we and other circuits have repeatedly rejected constitutional challenges to ACCA’s different-occasions inquiry.  See Maj. Op. 18–19 (collecting cases).  We’ve justified ourselves on the ground that the date of an offense is part of the “factual nature” of the conviction — and thus falls under Almendarez-Torres’s exception to Apprendi....

But that explanation, while plausible at first blush, is tough to square with the Court’s characterization of Almendarez-Torres as a “narrow exception” to Apprendi’s general rule.  See Alleyne, 570 U.S. at 111 n.1.  As interpreted by Apprendi, Almendarez-Torres exempts only “the fact of a prior conviction” from the bar on judicial factfinding.  Apprendi, 530 U.S. at 490 (emphasis added).  After all, Almendarez-Torres itself involved only the bare fact that the defendant had been convicted of a prior aggravated assault.  523 U.S. at 226.   Although I don’t question Almendarez-Torres’s continuing vitality — above my pay grade — it seems that we do more than just faithfully apply that decision when we extend its “narrow exception” for the mere “fact of a prior conviction” to include other related facts, such as the date or time of the underlying offense.  Indeed, if Almendarez-Torres authorizes factfinding about more than just the fact of a prior conviction, what’s the limiting principle?  What differentiates the timing of the offense from the fact that it was “violent” for ACCA’s predicate-felony inquiry?  Both, it seems to me, are equally part (or not part) of the “factual nature” of the prior conviction.

Noticing Biden Administration's withdrawal of pursuit of the death penalty in many cases

This new New York Times article, headlined "U.S. Won’t Seek Death Penalty in 7 Cases, Signaling a Shift Under Biden," reports on a notable set of pending case developments suggesting one way that the Biden Administration is making good on its stated antipathy toward capital punishment.  Here are excerpts:

One man was charged in Orlando, Fla., with kidnapping and fatally shooting his estranged wife. Another man was indicted in Syracuse, N.Y., in the armed robbery of a restaurant and the murders of two employees. And a third man was charged in Anchorage with fatally shooting two people during a home invasion.

Those cases and four others prosecuted in federal courts around the country all had a common theme — they were among cases in which the Justice Department under President Donald J. Trump directed federal prosecutors to seek the death penalty if they won convictions.

But now, under a new presidential administration, the Justice Department has moved to withdraw the capital punishment requests in each of the seven cases. The decisions were revealed in court filings without fanfare in recent months. The decision not to seek the death penalty in the cases comes amid the Biden administration’s broad rethinking of capital punishment — and could signal a move toward ending the practice at the federal level....

Some legal experts said it was too early to tell what the seven scattered cases signified, and one lawyer suggested Mr. Garland could have been even more assertive. “I think it’s a good and important step by the attorney general, but there’s no question that it’s not far enough,” said Cassandra Stubbs, director of the Capital Punishment Project at the American Civil Liberties Union. “President Biden should issue a much broader moratorium,” Ms. Stubbs added. “He should ask for a moratorium on all death penalty prosecutions.”

But Michael Rushford, president of the Criminal Justice Legal Foundation, a nonprofit group in Sacramento, Calif., that supports crime victims and the death penalty, was critical of Mr. Garland’s decisions in the seven cases. “The families of murder victims are clearly not included in the calculus when ordering U.S. attorneys not to pursue capital punishment in the worst cases,” he said.

Under Mr. Garland, the Justice Department has continued to fight the appeal of the death sentence imposed on Dylann Roof, the white supremacist who murdered nine Black churchgoers in Charleston in 2015. And in the case of Dzhokhar Tsarnaev, who was convicted of helping to carry out the 2013 Boston Marathon bombing, which killed three people and injured more than 260, the Justice Department has asked the Supreme Court to reinstate the death penalty, which had been overturned on appeal.