Sentencing Law and Policy

CCJ releases "Pandemic, Social Unrest, and Crime in U.S. Cities: Year-End 2021 Update"

Back in summer 2020, I noted here that the Council on Criminal Justice (CCJ) had launched an importantand 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), along with an on-going series of accounts of recent crime trends under the heading "Pandemic, Social Unrest, and Crime in U.S. Cities."  The latest version of this report, titled "Pandemic, Social Unrest, and Crime in U.S. Cities: Year-End 2021 Update," was released this week and can be accessed via this website.  Here is an overview:

This study updates and supplements previous reports by the Council on Criminal Justice on recent U.S. crime trends with additional crime data through the end of 2021. It examines monthly crime rates for ten violent, property, and drug offenses in 27 American cities. The crime data were obtained from online portals of city police departments that provided weekly updates for the period between January 2018 and December 2021.

The largest city in the sample is Los Angeles, with nearly 4 million residents. The smallest is Norfolk, VA, with 245,000 residents. The data are subject to revision, and not all cities reported data for each crime or for each week. Offense classifications also varied somewhat across the cities.

Findings:

• The number of 2021 homicides in the cities studied was 5% greater than in 2020 — representing 218 additional murders in those cities — and 44% greater than in 2019, representing 1,298 additional lives lost.

• Aggravated and gun assault rates were also higher in 2021 than in 2020.  Aggravated assaults increased by 4%, while gun assaults went up by 8%.  Robbery rates increased slightly after dropping in 2020.

• Burglary, larceny, and drug offense rates were lower in 2021 than in 2020, by 6%, 1%, and 12% respectively.  Motor vehicle theft rates were 14% higher in 2021 than the year before.

• Domestic violence incidents increased by nearly 4% between 2020 and 2021. But this result is based on just 11 of the 27 cities studied and should be viewed with caution.

• In response to continuing increases in homicide and serious assaults, the authors conclude that police and policymakers should pursue violence-prevention strategies of proven effectiveness and enact needed policing reforms to achieving durable reductions in violent crime in our cities.

Oklahoma completes first execution of 2022

As reported in this AP piece, "Oklahoma executed a man Thursday for the brutal slayings of two hotel workers during a robbery in 2001."  Here is more about the first execution completed in the United States in 2022:

Donald Grant, 46, received a lethal injection at the Oklahoma State Penitentiary in McAlester and was declared dead at 10:16 a.m. It was the first execution in the U.S. in 2022 and the third in Oklahoma since the state resumed lethal injections in October following a nearly seven-year hiatus....

Shirl Pilcher, the sister of one of Grant's victims, Brenda McElyea, said her family felt that justice had been served. “Although Donald Grant's execution does not bring Brenda back, it allows us all to finally move forward knowing justice was served," Pilcher said after witnessing his execution.

Grant had asked a federal judge to temporarily halt his execution, arguing that he should be reinstated as a plaintiff in a separate lawsuit challenging Oklahoma’s three-drug lethal injection protocol as presenting a risk of unconstitutional pain and suffering. But both a federal judge and a three-judge panel of the 10th U.S. Circuit Court of Appeals in Denver previously denied that request.  The U.S. Supreme Court denied Grant’s request on Wednesday.

Several Oklahoma death row inmates with pending execution dates have sought to delay their executions after John Grant convulsed on the gurney and vomited after receiving the first dose of midazolam, a sedative, during his October execution.  John Grant's execution was the state's first since problems with the state's lethal injection protocols in 2014 and 2015 led to a de facto moratorium.

Richard Glossip was just hours away from being executed in September 2015 when prison officials realized they received the wrong lethal drug.  It was later learned the same wrong drug had been used to execute an inmate in January 2015.  The drug mix-ups followed a botched execution in April 2014 in which inmate Clayton Lockett struggled on a gurney before dying 43 minutes into his lethal injection — and after the state’s prisons chief ordered executioners to stop.

During a clemency hearing in November, Donald Grant admitted killing Brenda McElyea and Felicia Suzette Smith so that there would be no witnesses to his robbery of the Del City hotel. Court records show both women were shot and stabbed, and Smith was also bludgeoned.  Prosecutors say both women also begged him to spare their lives before he killed them. During November's hearing, he expressed “deep, sincere remorse” and apologized for the killings, but the state’s Pardon and Parole Board voted 4-1 against recommending clemency....

Two of Donald Grant's attorneys, Susan Otto and Emma Rolls from the federal public defender's office, argued that he was mentally ill and had suffered brain damage that made him a candidate for mercy.  They also discussed Grant’s childhood growing up in a New York City housing project during the crack epidemic of the 1980s, a time when he was frequently beaten and members of his family experienced alcoholism, drug addiction and mental illness.  But the board also heard from members of McElyea's family, who tearfully urged them to reject clemency for him.

Some notable recent commentary on modern carceral stories

I have seen a variety of great new commentary on a number of notable carceral fronts.  Here is a quick round-up:

From The Hill by Jason Pye, "New head of prisons must embrace criminal justice reform"

From Inquest by Judah Schept, "Cages in the Coalfields: A growing carceral state has slowly replaced the coal industry in large swaths of Central Appalachia. But even here, a different future is possible."  

Also from Inquest, "Abolition Is Public Health: The largest public health professional organization in the U.S. took a stand against carceral systems as fundamentally antithetical to our nation's health. Here's why that matters."

From Slate by Eric Reinhart, "How Joe Biden Launched a New Prison Boom"

Justice Breyer indicates plan to retire ... and first big legacy review ignores landmark Booker ruling to focus on capital dissent

Major outlets are today a buzz with news that US Supreme Court Justice Stephen Breyer has told Prez Biden that he plans to retire soon.  Speculation about who Prez Biden might nominate as his replacement is already well underway, but I will save that discussion (with a sentencing spin) for future posts.  Here I want to start a discussion of Justice Breyer's sentencing and criminal justice legacy.

 I suspect all readers of this blog know that, in the sentencing universe, Justice Breyer's authorship of the advisory guideline remedy in Booker (and getting later Justice Ginsburg to sign on to it) has impacted many millions of criminal defendants.  And, of course, as a staffer and judge, Breyer helped write the legislation leading to the federal sentencing guidelines and then helped write those guidelines. But, frustratingly and tellingly, this big Vox piece providing a huge sweep of Breyer's career entirely ignores his work on the US Sentencing Commission, Booker and all sorts of other truly consequential criminal justice work by Justice Breyer and only talks about one dissent of his in a capital case:

Breyer’s commitment to democracy is profound, but it is not absolute. And the retiring justice did feel a special obligation to police arbitrary governmental practices.

In recent years, for example, Breyer became the Court’s most outspoken opponent of the death penalty — in large part because of his belief that it cannot be fairly administered. “Death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual,” Breyer wrote in his dissenting opinion in Glossip v. Gross (2015), quoting from a 1972 opinion by Justice Potter Stewart.  Rather than handing down death sentences exclusively to the worst criminals, such sentences are doled out to a “capriciously selected random handful” of the most serious offenders.

Breyer bolstered this argument with empirical studies showing that an offender is far more likely to be sentenced to die if their victim is white. Or if their victim is a woman. Or if the offender is merely unfortunate enough to be tried in the wrong location. “Within a death penalty State,” Breyer wrote in his Glossip dissent, “the imposition of the death penalty heavily depends on the county in which a defendant is tried.”

For these and other reasons, Breyer concluded that it is “highly likely that the death penalty violates the Eighth Amendment,” and he called upon his Court to receive full briefing on whether the death penalty should be allowed to exist at all.

Sigh.  Oh well, I am hopeful some other outlets will give some attention to his sentencing and criminal justice legacy.  Perhaps readers can start in the comments.

Articulating concerns while celebrating implementation of FIRST STEP earned-time credits

As first discussed in this post, the Department of Justice a few weeks ago officially announced its new rule for "implementing the Time Credits program required by the First Step Act"; as noted in this follow-up post, the process of awarding retroactive credits to prisoners who were eligible and had already done the work to earn credits resulted in an immediate significant reduction of the federal prison population.  And though there is much to celebrate about this stage of implementation of a huge part of the FIRST STEP Act — which was enacted with overwhelming bipartisan support in Congress and signed by President Trump way back in late 2018 — I have noticed a number of new commentaries and other press pieces flagging concerns to watch.

This CNN opinion piece, by Michael Cohen, E. Danya Perry and Joshua Perry, carries a headline that is most celebratory: "This is an unmistakable win for incarcerated people."  But, after an effective review of the positives of the new DOJ rules on earned-time credits, it closes with these sentiments:

There is still a lot of work to be done. There are strong indications that the BOP is not offering enough high-quality programs to help support people in prison, particularly during the pandemic.  While unquestionably impactful, the act was indeed only a "first step" towards broader changes that are desperately needed to reduce our cruel and counterproductive overreliance on incarceration.  And even this welcome development does not erase the needless suffering of too many people, while the BOP pushed back against inmates seeking time credit and initially proposed a rule that cut against Congress' intent.

This Forbes piece by Walter Palvo picks up these themes with even more concern for the implementation particulars under the headline "Bureau Of Prisons Begins Implementing First Step Act With Release Of Thousands In Custody":

One concern is that there does not appear to be a consistent way these ETCs are being calculated at each institution.  Case managers, who have been keying in classes that prisoners have taken over the past two years, seem to have a liberal way of calculating ETC and those who I have spoke to about their release have no idea how their release date was calculated.  As one man told me, “I was just happy to be released and don’t care how they calculated it.”  However, for the man or woman sitting in prison, it makes a huge difference.  Many advocates may be giving one another high-fives, but, as history has demonstrated, the BOP somehow finds a way to mess up a good thing. The law. already has flaws as there are a number of exceptions carved out to prevent some offenses from being ineligible from earning ETC. 

And this new NPR piece from Carrie Johnson spotlights long-standing concerns about the PATTERN risk-assessment tool central to these new prison policies.  The lengthy piece is headline "Flaws plague a tool meant to help low-risk federal prisoners win early release," and here are excerpts:

Thousands of people are leaving federal prison this month thanks to a law called the First Step Act, which allowed them to win early release by participating in programs aimed at easing their return to society. But thousands of others may still remain behind bars because of fundamental flaws in the Justice Department's method for deciding who can take the early-release track. The biggest flaw: persistent racial disparities that put Black and brown people at a disadvantage.

In a report issued days before Christmas in 2021, the department said its algorithmic tool for assessing the risk a person in prison would return to crime produced uneven results. The algorithm, known as Pattern, overpredicted the risk that many Black, Hispanic and Asian people would commit new crimes or violate rules after leaving prison. At the same time, it also underpredicted the risk for some inmates of color when it came to possible return to violent crime....

Risk assessment tools are common in many states. But critics said Pattern is the first time the federal justice system is using an algorithm with such high stakes. Congress passed the First Step Act in 2018 with huge bipartisan majorities. It's designed to prepare people in prison for life afterwards, by offering credits toward early release for working or taking life skills and other classes while behind bars....

Only inmates who pose a low or minimal risk of returning to crime can qualify for the programs, with that risk level determined using the Pattern algorithm.... The implementation has been rocky. The Justice Department finished the first version of Pattern in a rush because of a tight deadline from Congress. It then had to make tweaks after finding Pattern suffered from math and human errors. About 14,000 men and women in federal prison still wound up in the wrong risk categories. There were big disparities for people of color.

Prior recent related posts:

• Thousands of federal prisoners finally to get FIRST STEP Act credits as DOJ implements earned time rules
• Helpful FAMM "Explainer" talks through DOJ rule for implementing earned time credits under FIRST STEP Act
• Due surely to implementation of FIRST STEP earned-time credits, federal prison population drops by nearly 4,000 in one week 

"Child Pornography and Criminal Justice Reform"

The title of this post is the title of this notable new article now available via SSRN and authored by Dawinder Sidhu and Kelsey Robinson. Here is its abstract:

Drug offenses lie at the heart of the movement for criminal justice reform, and for good reason.  The defining attributes of prevailing drug policy — severe and disproportionate penalties owning to a retributive, factually flawed, and hurried congressional process — apply to the child pornography context as well.  In this Article, we identify the common issues with drug and child pornography sentencing and outline the doctrinal implications of this shared foundation, especially as to district court discretion to vary under Kimbrough v. United States.

Though drug sentencing is problematic enough, child pornography is arguably worse.  The U.S. Sentencing Commission has disavowed these guidelines and invited judges to vary from them.  Judges have done just that, varying in 63% of all cases, more than any other offense type.  Thus, in this Article, we also suggest how the improvements to this uniquely distressed area of law can inform criminal justice reform more generally, especially as to substantive reasonableness review under Gall v. United States, mandatory minimum sentences, and sunset provisions for penalty levels.

Child pornography is not part of the conversation for criminal justice reform.  We take on child pornography sentencing, and in doing so hope to ensure that the movement for criminal justice reform is both correct and complete.

Notable new report on juve LWOP reviews "Montgomery v. Louisiana Six Years Later: Progress and Outliers"

This morning I received this email from the folks at the Campaign for the Fair Sentencing of Youth that highlighting this new report "Montgomery v. Louisiana Six Years Later: Progress and Outliers." The full short report is worth a full read, and the emails provides this brief accounting of the report's coverage:

Six years ago today, the U.S. Supreme Court issued its decision in Montgomery v. Louisiana, making Miller v. Alabama’s requirement that judges consider the mitigating attributes of youth retroactive and offering new hope to thousands of people who had been sentenced to life without parole as children.  For many, that hope has led to shorter prison sentences, and for hundreds of others, it’s meant freedom.  At the time of the decision, 2,800 individuals in the U.S. were serving life without parole for crimes committed as children.  In the six years since, 835 individuals formerly serving this sentence have been released from prison. 

Today, 25 states and the District of Columbia ban life-without-parole sentences for children, and in six additional states, no one is serving life without parole for a crime committed as a child.  While we celebrate this inspiring progress, we recognize that far too many others have not yet received the relief they rightfully deserve.  Thus, we are pressing forward in the fight for these individuals across all areas of our work, with a particular focus on state legislatures and advocacy in outlier states. You can read more about how far we have come and the challenges we still face in this report authored by Rebecca Turner, the CFSY’s Senior Litigation Counsel.  

The full report gives particular attention to developments in Pennsylvania, Michigan, and Louisiana, which "each had more children sentenced to life without parole than any other state in the country" when Montgomery was handed down.  Here is how the report describes subsequent developments in those states and nationwide:

A majority of the 2,800 individuals serving juvenile life without parole (JLWOP) following Miller have been resentenced in court or had their sentences amended via legislation, depending on the jurisdiction in which they were convicted.

Yet despite the 80% reduction in people serving JLWOP, jurisdictions have varied significantly in their implementation of Miller. As a result, relief afforded to individuals serving JLWOP is based more on jurisdiction than on whether the individual has demonstrated positive growth and maturation.

The uneven implementation of Miller disproportionately impacts Black individuals, who represent 61% of the total JLWOP population....

Within that population [serving JLWOP when Montgomery was decided], 29% have been released, over 50% have had their sentences reduced from JLWOP, about 17% have not yet been afforded relief, and approximately 3% have been resentenced to JLWOP.

Connecticut Supreme Court reverses sentence based "materially false information" that defendant was in "mythical group of teenage 'superpredators'"

A few helpful folks made sure I did not miss the notable ruling by the Connecticut Supreme Court this past Friday in State v. Belcher, No. SC 20531 (Conn. Jan 21, 2022) (available here). The start of the unanimous opinion sets out the basics:

The defendant, Keith Belcher, a juvenile offender, appeals from the trial court’s denial of his motion to correct an illegal sentence. After his conviction, the defendant received a total effective sentence of sixty years of incarceration.  He claims, inter alia, that the trial court improperly denied his motion to correct on the basis of the court’s conclusion that the sentencing court did not impose the sentence in an illegal manner by relying on materially false information.

Our review of the record reveals that the defendant established that the sentencing court substantially relied on materially false information in imposing his sentence, specifically, on the court’s view that the defendant was a ‘‘charter member’’ of a mythical group of teenage ‘‘superpredators.’’  Therefore, we conclude that the trial court abused its discretion in denying the defendant’s motion to correct.  Accordingly, we reverse the judgment of the trial court, and the case is remanded with direction to grant the defendant’s motion and for resentencing.

The full opinion merits a full read for many reasons.  Therein, one learns that the defendant here was only 14 when committing his crimes way back in 1993 (meaning he has now already served nearly three decades).  Also of note, the court avoids resolution of constitutional claims by deciding he gets resentencing based on the illegal manner of the original sentence's imposition. Here are a few highlights from the interesting opinion:

We conclude that the superpredator theory was baseless when it originally was espoused and has since been thoroughly debunked and universally rejected as a myth, and it therefore constituted false and unreliable information that a sentencing court ought not consider in crafting a sentence for a juvenile offender....

In the context of the sentencing of the defendant, a Black teenager, the court’s reliance on the materially false superpredator myth is especially detrimental to the integrity of the sentencing procedure for two reasons.  First, reliance on that myth invoked racial stereotypes, thus calling into question whether the defendant would have received as lengthy a sentence were he not Black.  Second, the use of the superpredator myth supported treating the characteristics of youth as an aggravating, rather than a mitigating, factor....

In summary, by invoking the superpredator theory to sentence the young, Black male defendant in the present case, the sentencing court, perhaps even without realizing it, relied on materially false, racial stereotypes that perpetuate systemic inequities — demanding harsher sentences — that date back to the founding of our nation.  In addition, contrary to Roper and its progeny, in relying on the superpredator myth, the sentencing court counted the characteristics of youth as an aggravating factor against the defendant.  Although we do not mean to suggest that the sentencing judge intended to perpetuate a race based stereotype, we cannot overlook the fact that the superpredator myth is precisely the type of materially false information that courts should not rely on in making sentencing decisions.  Whether used wittingly or unwittingly, reliance on such a baseless, illegitimate theory calls into question the legitimacy of the sentencing procedure and the sentence.

CCRC releases "From Reentry to Reintegration: Criminal Record Reforms in 2021"

As detailed at this post over at the website of the Collateral Consequences Resource Center, "each year since 2017, CCRC has issued a report on legislation enacted in the past year that is aimed at reducing the barriers faced by people with a criminal record in the workplace, at the ballot box, and in many other areas of daily life."  True to form, CCRC has now released this 55-page report titled  "From Reentry to Reintegration: Criminal Record Reforms in 2021."  The CCRC post about the report provide this helpful review of the full document (emphasis and links from the original):

The title of this post introduces our annual report on new laws enacted during the past year, and emphasizes the continuum from reentry (for those who go to jail or prison) to the full restoration of rights and status represented by reintegration.  Recent research indicates that most people with a conviction never have a second one, and that the likelihood of another conviction declines rapidly as more time passes. The goal of full reintegration is thus both an economic and moral imperative.

In the past year the bipartisan commitment to a reintegration agenda has seemed more than ever grounded in economic imperatives, as pandemic dislocations have brought home the need to support, train, and recruit workers who are essential to rebuilding the businesses that are the lifeblood of the economy.  If there is any one thing that will end unwarranted discrimination against people with a criminal history, it is a recognition that it does not pay.

Our 2021 report highlights key developments in reintegration reforms from the past year. It documents that 40 states, the District of Columbia, and the federal government enacted 152 legislative bills and took a number of additional executive actions to restore rights and opportunities to people with an arrest or conviction history. As in past years, a majority of these new laws involved individual record clearing: All told, an astonishing 36 states enacted 93 separate laws that revise, supplement or limit public access to individual criminal records to reduce or eliminate barriers to opportunity. Most of these laws established or expanded laws authorizing expungement, sealing, or set-aside of convictions or arrest records.  Several states enacted judicial record clearing laws for the very first time, and a number of states authorized “clean slate” automatic clearing.  Executive pardoning was revived in several states where it had been dormant for years.

In addition, many of the new laws enacted general provisions limiting considering of criminal record in economic settings: 17 states enacted 26 new laws regulating employment and occupational licensing, and more than a dozen other states enacted laws facilitating access to housing, education, driver’s licenses, and public benefits.

Finally, civil rights restoration continued to make progress: Four states took steps to restore voting rights upon release from prison, bringing the total in that category to 21 (with another two states and D.C. not disenfranchising at all). Three other states and the federal government took steps to expand awareness of voting eligibility by those in jail or prison or after release, and four states acted to restore eligibility for jury service and public office....

From Reentry to Reintegration, Criminal Record Reforms in 2021 is available here.  It includes our third annual legislative Report Card recognizing the most (and least) productive legislatures in 2021.  The body of the report provides topical discussions of last year’s reform measures, followed by an appendix documenting and summarizing the new laws by jurisdiction. More detailed analysis of each state’s law is available in the CCRC Restoration of Rights Project.

Brennan Center reviews "Criminal Legal Reform One Year into the Biden Administration"

I received via email news this morning that the Brennan Center for Justice had published this notable new short report titled "Criminal Legal Reform One Year into the Biden Administration." Here is the first part of the email, which serves as an overview of the report's coverage:

During his campaign, President Biden pledged to “strengthen America’s commitment to justice and reform our criminal justice system.” Brennan Center experts conclude that, after his first year in office, some progress has been made — but significant missed opportunities remain.  They identify eight key federal reform measures that the administration could achieve easily, in many cases without needing to rely on Congress, and detail the progress that has been made (if any), ranking them as follows:

Little or no progress

• Overhauling federal clemency process
• Empowering the U.S. Sentencing Commission

Limited policy changes

• The First Step Act and the Bureau of Prisons
• Federal death penalty
• Private, for-profit prisons and detention centers

Notable progress

• Federal home confinement
• Nominations for U.S. Attorney positions and federal judgeships
• Commitment to funding community anti-violence programs

Guest post #2 on big Seventh Circuit Wilks decision on Bail Reform Act’s "presumption of detention"

As explained in this post from last week, Alison Siegler, Clinical Professor of Law and Director of the University of Chicago Law School's Federal Criminal Justice Clinic, wrote to me to highlight a big Seventh Circuit ruling on the Bail Reform Act (BRA).  I suggested that she do a guest post series on this Wilks ruling (as she previously did a series of guest posts on her stash-house sting litigation).  Alison  prepared two  posts on the topic; the first is at this link, the second is here:

The Wilks opinion is groundbreaking not only for its clarification of the BRA’s presumption of detention, but also because it is the first opinion from the Seventh Circuit to address the standard of review for a revocation decision under 18 U.S.C. § 3148.  The court sets the same standard of review for both an initial detention decision under 18 U.S.C. § 3142 and a revocation decision under § 3148: “‘independent review’ of the decision below, though with deference to the judge’s findings of historical fact and his greater familiarity with the defendant and the case.” United States v. Wilks, 15 F.4th 842, 847 (7th Cir. 2021); id. (“We conclude that the same standard of review governs an appeal from an initial detention decision and a decision to revoke pretrial release.” (emphasis in original)).

Moreover, Wilks is also the first Seventh Circuit case to address the legal standard for revocation of pretrial release in 18 U.S.C § 3148 (a different issue from the standard of review).  The court holds, in relevant part: “A finding that the defendant violated a release condition does not alone permit revocation; the judge must make findings under both § 3148(b)(1) and (b)(2) before he may revoke release” and must also “weigh the factors listed in § 3142(g).” Id. at 848.

The court ultimately determines that the judge’s findings were insufficient to satisfy the legal standard: “[T]he judge did not find by clear and convincing evidence that Wilks violated a condition of release. See § 3148(b)(1)(B).” Id.  The court finds fault for two reasons.

First, as a factual matter, the judge did not focus on the correct alleged bond violations and did not give the defense an opportunity to respond to new allegations: “Though it was not improper for the judge to reframe the inquiry, the fact remains that Wilks’s counsel did not have an opportunity to address the specific issue that the judge was concerned about.” Id. For the judge to permissibly order detention, the defense must have an opportunity to meaningfully rebut the court’s justification for detention, especially if the court orders detention on the basis of an argument not raised by the government.

Second, the judge did not make sufficient factual findings or properly apply the legal standard to the facts: “A recitation of the statutory language ‘devoid of any discussion, analysis, or explanation as to why the district court concluded that the criteria for release had not been met’ cannot justify detention even after conviction, when the presumption of innocence has been extinguished.” Id. (emphasis in original) (citation omitted).  In other words, before revoking pretrial release, the judge must provide detailed factual findings that are connected to the relevant legal standard — notably, even if the accused has already been convicted and is pending sentencing.

Finally, Wilks reminds us that “the government’s interest in ensuring the safety of the community and securing the defendant’s appearance in court” must be balanced against “the defendant’s interest in his personal liberty.” Id. at 847. As the Supreme Court has emphasized, “[f]reedom from bodily restraint has always been [ ] the core liberty protected by the Due Process Clause.” Foucha v. Louisiana, 504 U.S. 71, 90 (1992). And in the pretrial detention context, “the individual[ ] [has a] strong interest in liberty.” United States v. Salerno, 481 U.S. 739, 750 (1987).  Too often, the government’s interests are treated as paramount, despite the fact that the BRA and precedent require a meaningful consideration of an accused’s “importan[t] and fundamental” interest in liberty. Id.

Federal practitioners seeking to obtain their clients’ release on bond should file written bond motions incorporating the foregoing arguments and applying § 3142(g) to the facts of their case.  My Federal Criminal Justice Clinic at the University of Chicago Law School has written a template motion for pretrial release in presumption cases and other bond motions that are available on fd.org at this link (click on “Bail Handout”) and via NACDL at this link.  If you do not have access to these websites you can obtain the FCJC’s template bond motions by emailing the clinic’s assistant, Kyla Norcross, knorcross @ uchicago.edu. For more tips for getting federal clients released on bond, see Alison Siegler & Erica Zunkel, Rethinking Federal Bail Advocacy to Change the Culture of Detention, THE CHAMPION 46, 50 (July 2020); Erica Zunkel & Alison Siegler, The Federal Judiciary’s Role in Drug Law Reform in an Era of Congressional Dysfunction, 18 OHIO STATE JOURNAL OF CRIMINAL LAW 238 (2020).

SCOTUS takes up reach of McGirt's limit on state prosecution in "Indian country"

The Supreme Court via this order last night granted cert in one case, Oklahoma v. Castro-Huerta, a criminal case concerning the reach of a notable Court ruling from a few terms ago.  This SCOTUSblog post provides the details and context, and here is an excerpt:

Less than two years ago, the Supreme Court ruled in McGirt v. Oklahoma by a vote of 5-4 that a large portion of eastern Oklahoma, which was reserved for the Creek Nation in the 19th century, remains a reservation for purposes of a federal law that gives the federal government sole power to try certain major crimes committed by “any Indian” in “Indian country.” On Friday, the justices — with Justice Amy Coney Barrett having replaced the late Justice Ruth Bader Ginsburg, who was in the McGirt majority — agreed to consider how broadly McGirt applies, but they declined to reconsider the decision itself, which the state describes as having a “more immediate and destabilizing effect on life in an American State” than any of the court’s other recent decisions.

The justices granted review in the case of Victor Manuel Castro-Huerta, who was convicted of neglecting his five-year-old stepdaughter.  Although Castro-Huerta is not a Native American, his stepdaughter is a member of the Eastern Band of Cherokee Indians, and the Oklahoma Court of Criminal Appeals vacated his conviction because the crime occurred in Indian country.  The decision rested on the court’s conclusion that McGirt applies not only to major crimes committed by Native Americans but also to crimes committed by others in Indian country.

Oklahoma filed more than 30 separate petitions asking the justices to overrule McGirt.  It told the justices that the effects of the decision have been “calamitous and are worsening by the day.”  Thousands of crime victims are now seeking justice from federal and tribal prosecutors, the state wrote, overwhelming those offices and federal district courts and leaving many crimes “uninvestigated and unprosecuted.”...

In a brief order on Friday afternoon, the justices agreed to take up only the first question presented by the state’s petition, relating to the application of McGirt to bar state prosecutions of non-Native defendants who commit crimes against Native Americans in “Indian country.”  The court set the case for argument in its April 2022 argument session, with a decision to follow by summer.

"The First Step Act, The Pandemic, and Compassionate Release: What Are the Next Steps for the Federal Bureau of Prisons?"

The title of this post is the title of this congressional hearing taking place this morning conducted by the Subcommittee on Crime, Terrorism, and Homeland Security of the US House Judiciary Committee.  I cannot yet find links to any written testimony, but here are the scheduled witnesses from this Witness List:

Homer Venters, Adjunct Clinical Associate Professor, NYU School of Global Public Health

Alison Guernsey, Clinical Associate Professor of Law, University of Iowa College of Law

Gwen Levi, Baltimore, MD

Melissa Hamilton, Professor of Law and Criminal Justice, University of Surrey, School of Law

Gretta L. Goodwin, Director, Homeland Security and Justice, U.S. Government Accountability Office

Julie Kelly, Senior Contributor, American Greatness

Eleventh Circuit panel decides law enforcement violates First Amendment by placing Halloween warning signs on registered sex offenders' lawns

A couple of days ago, a unanimous Eleventh Circuit panel issued an interesting and notable ruling in McClendon v. Long, No. 21-10092 (11th Cir.  Jan. 19, 2022) (available here).  Here is how the court's opinion gets started:

In October 2018, two deputies from the Butts County Sheriff’s Office placed signs in the front yards of the residences of all 57 registered sex offenders within the County, warning “STOP” and “NO TRICK-OR-TREAT AT THIS ADDRESS.” Before Halloween 2019, three registered sex offenders living in Butts County sued, seeking to enjoin the Sheriff from placing the signs again. The district court denied a permanent injunction and granted summary judgment in favor of the Sheriff.

After review and with the benefit of oral argument, we conclude that the Sheriff’s warning signs are compelled government speech, and their placement violates a homeowner’s First Amendment rights.  Thus, we vacate the district court’s judgment in favor of the Sheriff and remand for further proceedings consistent with this opinion.

For many years, I have seen reports about (and have blogged a bit about) all sorts of "special" formal and informal rules applied to registered sex offenders by many localities around Halloween. Some of these rules have been challenged in various courts and a few have been enjoined.  But I cannot recall seeing any other federal circuit opinions on this recurring issue, and I suspect this ruling will be widely cited in future litigation over these kinds of issues.

January 6 riot prosecutions continuing to spotlight realities of federal criminal justice case processing

This morning I saw two interesting, though not especially surprising, reviews of some of federal criminal justice realities being put in the spotlight by the many prosecutions of January 6 rioters.  Here are the headlines, links and an excerpt:

From Zoe Tillman at BuzzFeed News, "Alleged Capitol Rioters Are Getting In Trouble For Guns And Other Violations After Going Home: A common theme popping up in violations among those on pretrial release has come from defendants who are reluctant to give up access to firearms."

[Joshua] Pruitt is one of 11 people charged in connection with the attack on the US Capitol who were ordered into custody after initially being released; eight of those cases involved defendants who violated conditions of their pretrial release.  Prosecutors have a pending request to put another defendant behind bars, and BuzzFeed News identified at least 16 cases where judges tightened restrictions or issued warnings after finding defendants failed to be in full compliance with the letter, or spirit, of their release conditions.

The vast majority of people charged in the Jan. 6 investigation have been allowed to go home while their cases are pending; there are more than 550 defendants with active cases on pretrial release. Most have stayed out of trouble. The small but steady trickle of problems that have cropped up speak to some of the broader challenges judges have faced in deciding when it’s appropriate to send someone back into the community who is accused of being part of the insurrection but isn’t charged with a specific act of violence or a more serious crime.

From Roger Parloff, "Are Judges Showing Their Political Colors in the Jan. 6 Criminal Cases?"

Earlier this month, a Washington Post analysis suggested that the sentences of Jan. 6 Capitol riot defendants may reflect political bias on the part of the judges handling these cases.

Is the Post right and, more broadly, are judges showing their political colors in other ways involving these defendants? The evidence is mixed.  On the one hand, as we’ll see, judges have shown commendable bipartisanship in how they’ve handled certain key issues.  At the same time, the Post is clearly onto something. At least an undercurrent of low-grade tribalism has often surfaced in the judges’ handling of these cases....

Here’s what the Post did.  It reviewed the 74 sentences that had been handed down by the U.S. District Court for the District of Columbia (where all the Jan. 6 Capitol riot cases are being filed) as of the first anniversary of the event.  Then it compared those sentences to the terms the prosecutors had sought.

As an initial matter, the Post found that 49 defendants — two-thirds — received lighter sentences than prosecutors had recommended....

Still, when the paper drilled down, it uncovered some unmistakable trends. Of the 49 sentences that were lighter than prosecutors sought, 30 (61 percent) had been handed down by Republican appointees. This tilt could not be explained by the distribution of Republican appointees on the bench. Of all the judges who have sentenced a Capitol riot defendant, 10 were appointed by Democrats, while eight were appointed by Republicans.

Upon swiveling the tables — homing in on which judges imposed sentences that were harsher than the prosecutors requested — a mirror-image pattern emerged.  Of the 11 sentences that were tougher than the government sought, nine (82 percent) were imposed by Democratic appointees.

Some of many prior related posts:

• "Many Capitol rioters unlikely to serve jail time" because some facing only misdemeanor convictions
• Noting the importance of charging policies and practices (and consistency?) as federal rioting charges get resolved from coast-to-coast
• Federal judges expressing some concern about lenient plea deals for some Capitol riot defendants
• Notable accounting of federal prosecutions and sentences responding to riots both before and during January 6
• Recent Jan 6 rioter sentencings showcase different judges with different sentencing perspectives
• Coverage and commentary as 100th guilty plea entered for federal charges in January 6 riots 
• Is longest prison term for Jan 6 rioter, and a possible new benchmark, coming this week?
• Feds get 41 months for one high-profile January 6 rioter and seek 51 months for another
• Accounting for the first 50 sentences imposed on January 6 rioters 
• Lots of new January 6 riot sentencings producing lots of notable new headlines and sentencing stories 
• Reviewing federal criminal prosecutions of January 6 rioters one year later

Due surely to implementation of FIRST STEP earned-time credits, federal prison population drops by nearly 4,000 in one week

As noted in this prior post from last Thursday, the Department of Justice last week officially announced its new rule for "implementing the Time Credits program required by the First Step Act" and began awarding retroactive credits to those who were eligible and had already done the work to earn credits.  In my post, I commented that, with the retroactive application of these credits, it would be interesting to see if the federal prison population (which as of Jan 13 BOP reported at 157,596 "Total Federal Inmates") would start to decline.  

A week later, on the first day that BOP updates here its reports of "Total Federal Inmates," there is a dramatic change in the total federal prison population.  Specifically, this morning BOP reports 153,855 "Total Federal Inmates," a decline of 3,741 persons now federal inmates.  This roughly 2.5% drop in the federal inmate population in one week is surely the result of the implementation of FIRST STEP Act earned-time credits, and it will now be interested to see if there are continued drops in the weeks ahead.  (I suspect there will be as implementation must take more than just a week, though I will be very surprised if there are subsequent drops as large as this one.)

Among the notable parts of this story is that it represents a bi-partisan, multi-Congress, multi-administration achievement many years in the making.  Of course, the formal law making this possible was the FIRST STEP Act which was enacted with overwhelming bipartisan support in Congress in 2018 and which President Trump signed after he helped get to the bill to the finish line.  But, well before that bill was passed, congressional leaders and the Justice Department during the Obama years had started drafting and building consensus around the prison reform elements of the Sentencing Reform and Corrections Act of 2015 (first discussed here in October 2015).  And now, of course, it is the Justice Department of the Biden Administration that finalized and now implements this important earned-time credits program required by the FIRST STEP Act.   

Prior recent related posts:

• Thousands of federal prisoners finally to get FIRST STEP Act credits as DOJ implements earned time rules
• Helpful FAMM "Explainer" talks through DOJ rule for implementing earned time credits under FIRST STEP Act

Frustrating (but still fascinating) SCOTUS argument on crack offense resentencing under FIRST STEP Act

The Supreme Court heard oral argument today in Concepcion v. US, No. 20-1650, to address this technical question as presented by the Petitioners: "Whether, when deciding if it should 'impose a reduced sentence' on an individual under section 404(b) of the First Step Act of 2018, 21 U.S.C. § 841 note, a district court must or may consider intervening legal and factual developments."  Perhaps in part because the federal government agrees that a district court "may" consider new facts at crack offense resentencing, it seems likely that the defendant here will secure some form of relief.  But, perhaps in part because of the federal government's position, a number of Justices seemed quite eager to talk up the virtues of limiting the scope of a crack offense resentencing.  And because everyone talked at great length about sentencing laws and practices — save Justices Barrett and Thomas, who were mostly quiet — all federal sentencing fans will want to make time to listen to (or read) the oral argument available here.

Many aspects of the argument were fascinating, included Justice Breyer's persistent eagerness to talk up the US Sentencing Commission and even USSC staff documents.  But I found the tenor and tone of the entire argument to be somewhat frustrating given the historical context of unjust crack sentencing.  The advocates and the Justices often suggested it was exceptional that Congress provided for crack resentencings, and the Assistant SG repeatedly spoke of the defendant's original "lawful sentence."  Nobody really mentioned at all the exceptionally unjust and unfair original 100-1 crack sentencing ratio and how that injustice was overwhelmingly acknowledged by Congress through the Fair Sentencing Act of 2010 and finally fixed retroactively  though the FIRST STEP Act of 2018.  Put more directly, Congress has twice made quite clear that it believes that crack defendants sentenced before 2010 received unjust and wrong sentences, even if those sentences may have been technically "lawful."  

In other words, what is fundamentally at issue in Concepcion is whether a group of defendants (almost all of whom are persons of color) who have been serving unjust and wrong federal sentences for more than a decade should be limited in how they can argue for now getting a more just and rightful sentence.  Most fundamentally, these crack defendants want to argue that they should also benefit at resentencing from other improvements in the guidelines apart from crack reforms.  But the Assistant AG expressed concern that allowing arguments for a more just and rightful sentence based on new guidelines could lead to an "unjustified windfall for a select subset of crack cocaine offenders."  But, as I see it, understanding how these defendants have been subject to unjust sentencing for many years, it is functionally impossible for them to really get any "windfall."  Indeed, allowing current new and improved law to inform a new and improved sentence for these crack defendants is the exact opposite of "unjustified windfall."  It is what all should recognize as justice, years late, but hopefully not short.

Pope Francis speaking out again on behalf of "our brothers and our sisters who are in prison"

This new AP article, headlined "Pope on prisons: No inmate should ever be deprived of hope," reports on some of the latest comments from Pope Francis about prisons and prisoners.  Here are the highlights along with some Italian backstory that may account for the pope's latest remarks:

Pope Francis issued a plea on behalf of prison inmates Wednesday, saying they should never be deprived of hope and always be given the opportunity to redeem themselves.

In remarks at his weekly public audience at the Vatican, Francis told the faithful that “we risk being imprisoned in a justice that doesn’t allow one to easily get back up again and confuses redemption with punishment.”

“For this, I want to recall today in a particular way our brothers and our sisters who are in prison,” the pontiff said. “It’s right that those who have made a mistake pay for their mistake, but it’s even more right that those who have done wrong should be able to redeem oneself from their mistake. There can’t be sentences without windows of hope.’’

Francis didn’t cite the prison policies or justice systems of any particular countries as problematic. Catholic teaching holds that the death penalty has no justification in modern society. During his papacy, Francis has made attention to the needs of communities on society’s margins, including prison populations, a priority.

“Let’s think of our incarcerated brothers and sisters, and let’s think about the tenderness of God for them and pray for them so that they may find in that window of hope a way out toward a better life,” Francis said in concluding his remarks Wednesday.

Italy’s justice minister, while briefing lawmakers in Parliament on criminal justice reform Wednesday, decried overcrowding in the country’s prisons, describing it as the most serious of all the problems plaguing the penal system.  Justice Minister Marta Cartabia said Italy’s prisons were 14% overcrowded. “It’s a condition that aggravates the relationships among inmates and which makes the work of prison personnel, often victims of aggression, even more difficult,” she said. “Overcrowding means greater difficulty in guaranteeing security and greater difficulty in proposing activities that facilitate paths to rehabilitation.”

Cartabia said reforms were under way to allow for sentences that provide alternatives to prison. But she noted that 69,000 persons are already serving their sentences outside prison walls, compared to some 54,000 inmates in Italy’s criminal justice system.

Notably, the United States has about 5 times the population of Italy, but has about 25 times as many prisoners.  According to this site, the US violent crime rate and murder rate is also five times the rate in Italy.

A few prior related posts about Pope Francis'  "sentencing advocacy":

• Pope Francis, speaking to Congress, urges abolishing death penalty (and LWOP)
• Pope Francis categorically condemns death penalty as "inadmissible" in today's world 
• Papal prison priorities: "to care for wounds, to soothe pain, to offer new possibilities" 
• Pope Francis now advocating for total abolition of LWOP sentences as well as the death penalty 
• Pope Francis' new encyclical clearly condemns the death penalty (as well as life imprisonment)

Guest posts on big Seventh Circuit Wilks decision on Bail Reform Act’s "presumption of detention"

I hope readers recall the series of guest posts from a few years ago authored by Alison Siegler, Clinical Professor of Law and Director of the University of Chicago Law School's Federal Criminal Justice Clinic, concerning the extraordinary litigation her clinic has done in response to so-called "stash house stings."  Not too long ago, Alison wrote to me to highlight a big new Seventh Circuit ruling on the Bail Reform Act that related to another focus of her work.  I suggested that she do another guest post series on the ruling because this was a legal space I know little about.  She has prepared two long posts on the topic, and here is the first:

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GUEST BLOG POSTS RE WILKS AND THE PRESUMPTION OF DETENTION by ALISON SIEGLER

PART I

This is the first of two guest posts discussing a groundbreaking opinion that addresses the Bail Reform Act’s “presumption of detention.”

The BRA’s presumption of detention applies to “nearly half of all federal criminal cases and to 93 percent of all drug cases.” Alison Siegler & Erica Zunkel, Rethinking Federal Bail Advocacy to Change the Culture of Detention, THE CHAMPION 46, 50 (July 2020); 18 U.S.C. § 3142(e)(2)–(3). The most common types of cases in which the presumption applies are drug cases, § 924(c) gun cases, and minor victim cases. A study from the Administrative Office of the United States Courts finds that the “presumption of detention . . . is driving high federal detention rates,” and that in practice, the presumption “has become an almost de facto detention order.” Amaryllis Austin, The Presumption for Detention Statute’s Relationship to Release Rates, 81 FED. PROBATION 52, 56, 61 (2017).  The same study found that “the presumption increases the detention rate without advancing community safety. Rather than jailing only the worst of the worst, the presumption over-incarcerates the lowest-risk offenders in the system.” Siegler & Zunkel, supra, at 50 (citing Austin, supra, at 57). “Now, with the presumption as a driving force, federal pretrial detention rates have skyrocketed, with three in four people jailed before trial — a 75 percent detention rate that falls disproportionately on people of color. This is mass incarceration in action.” Alison Siegler & Kate Harris, How Did the Worst of the Worst Become 3 Out of 4?, N.Y. TIMES (Feb. 24, 2021).  Courts often assume that the presumption ties their hands, and defense attorneys sometimes waive the right to seek release in presumption cases because challenging pretrial detention feels futile.

An important recent Seventh Circuit opinion reminds us that is not how the presumption is supposed to operate as a matter of law. United States v. Wilks, 15 F.4th 842, 844 (7th Cir. 2021) (reversing a district court’s revocation of pretrial release because “the judge did not hew to the statutory framework in making the revocation decision”). Wilks illuminates the operation of the presumption in a way that enables lawyers to push back on the presumption’s worst manifestations.

Wilks clarifies numerous key aspects of the limits of the § 3142(e) presumption of detention.

First, even when a presumption of detention is triggered, “the burden of persuasion always rests with the government.” Wilks, 15 F.4th at 846–47.

• Even in a presumption case, the defense never bears the ultimate burden of persuasion or proof. That is, the defense never has to persuade the judge that there exist conditions of release that will reasonably assure his or her appearance and the safety of the community.  See 50 GEO. L.J. ANN. REV. CRIM. PROC. 404 (2021) (“The presumptions of detention shift the burden of production to the defendant, but the government retains the burden of persuasion.”).
• Rather, the burden of persuading the judge that no conditions of release exist that will reasonably assure the accused’s appearance and the safety of the community continues to rest at all times with the government, despite the presence of the presumption. See Wilks, 15 F.4th at 846–47; see also Dominguez, 783 F.2d at 707 (“[T]he burden of persuasion remains with the government” at all times and never shifts to the defense); Jessup, 757 F.2d at 381 (“[T]he burden of persuasion does not shift.”); Alatishe, 768 F.2d at 254 (“[I]t [i]s not the responsibility of the [defendant] to carry the Government’s burden of proof or persuasion.”).

Second, the presumption is intended to be easy to rebut. See 18 U.S.C. § 3142(e)(3) (“Subject to rebuttal by the person . . .”); see also Wilks, 15 F.4th at 846 (“A defendant charged with a serious drug crime . . . is subject to a rebuttable presumption.”).

• Rebuttal, in theory, should be exceedingly easy, as the presumption “places a light burden of production on the defendant” to rebut the presumption. Wilks, 15 F.4th at 846 (emphasis added); see also United States v. Dominguez, 783 F.2d 702, 707 (7th Cir. 1986) (“The burden of production is not a heavy one to meet.”); United States v. Jessup, 757 F.2d 378, 380–84 (1st Cir. 1985) (holding that to meet the burden of production required for rebuttal, the defendant need only produce “some evidence” under § 3142(g)); United States v. Chimurenga, 760 F.2d 400, 405 (2d Cir. 1985) (same); United States v. Alatishe, 768 F.2d 364, 371 (D.C. Cir. 1985) (same); 50 GEO. L.J. ANN. REV. CRIM. PROC., supra, at 404 (“Once defendants ‘[come] forward with some evidence that [they] will not flee or endanger the community if released,’ the presumption of flight risk and dangerousness is rebutted.” (quoting Dominguez, 983 F.3d at 707) (bracketed alteration in original)).
• The defense rebuts the presumption and meets its burden of production by presenting “some evidence” related to the § 3142(g) factors, including any “evidence of economic and social stability.” Dominguez, 783 F.2d at 707; see also Siegler & Zunkel, supra, at 52 & n.110 (collecting cases). “Once this burden of production is met, the presumption is ‘rebutted.’” Dominguez, 783 F.2d at 707.
• Any evidence under § 3142(g) rebuts the presumption! If a judge finds otherwise, that violates the statute and caselaw.
  • Examples in Dominguez of the kind of evidence that rebuts the presumption include “evidence of their marital, family and employment status, ties to and role in the community, clean criminal record and other types of evidence encompassed in § 3142(g)(3).” Dominguez, 783 F.2d at 707; see also Jessup, 757 F.2d at 384.
• The defense does not have to “‘rebut’ the government’s showing of probable cause to believe that [the accused] is guilty of the crimes charged,” nor do they have to “demonstrate that [the type of crime charged] is not dangerous to the community.” Dominguez, 783 F.2d at 706.
  • For example, someone charged in a drug case or a § 924(c) gun case does not have to prove that distributing drugs or possessing a firearm is not dangerous.

Third, “an unrebutted presumption is not, by itself, an adequate reason to order detention. Rather, the presumption is considered together with the factors listed in § 3142(g).” Wilks, 15 F.4th at 847 (citation omitted).

• This is a hugely important statement of the law.  Very few judges and practitioners understand this.  Even if the defense does not carry its light burden of production by not coming forward with some evidence under § 3142(g) that rebuts the presumption, that lack of rebuttal does not, standing alone, authorize detention in a presumption case.  The government continues to bear the “burden to justify detention” by establishing that there are no conditions of release that will reasonably assure the accused’s appearance and the safety of the community. Id.  And the judge must still analyze all of the factors listed in § 3142(g) in determining whether the government has met that burden.
• Whether or not the defense rebuts the presumption, the ultimate burden of persuasion and proof always rests with the government to justify detention and to establish that there are no conditions short of detention that will reasonably assure the accused’s appearance in court and the safety of the community.  See GEO L.J., supra, at 404 (“Even when a presumption of detention applies, the government continues to bear the ultimate burden of proving that no conditions of release will reasonably assure the defendant’s appearance and the safety of the community.”). If the government does not carry that burden, the law requires the judge to release the accused on bond.
  • Even if the presumption is unrebutted, “[i]f the government does not carry its burden to justify detention, the judge must order the defendant’s release pending trial subject to the least restrictive combination of conditions that will reasonably assure his appearance and the safety of the community. 18 U.S.C. § 3142(c)(1)(B).” Id.
  • See also Chimurenga, 760 F.2d at 405, 403 (holding that even in a presumption case, “the government continue[s] to have the burden to prove by clear and convincing evidence that [the defendant is] dangerous” and that there are no conditions that will reasonably assure their appearance and the safety of the community despite all of the evidence of social stability the defendant presents); United States v. Munchel, 991 F.3d 1273, 1289 (D.C. Cir. 2021) (Katsas, J., concurring in part) (clear and convincing evidence is “a heightened standard of proof under which the fact finder must ‘give the benefit of the doubt to the defendant.’” (citation omitted)).
• In fact, if the judge shifts the burden of persuasion to the accused, that arguably violates due process because the constitutionality of the presumption depends in part on the fact that the defense does not bear the burden of proving that the accused is not a danger or a flight risk. See, e.g., Jessup, 757 F.2d at 386 (“Given [inter alia] . . . the fact that the presumption does not shift the burden of persuasion, . . . the presumption’s restrictions on the defendant’s liberty are constitutionally permissible.”). The canon of constitutional avoidance thus strongly militates in favor of the Wilks court’s interpretation of this meaning of the presumption.

Fourth, once the presumption is rebutted, it carries a lot less weight.

• The rebutted presumption remains in consideration but is just one factor among many. “While the rebutted presumption does not disappear, a judge must weigh it against all of the mitigating evidence that the defense presents, and assign it no more weight than any other § 3142 factor.” Siegler & Zunkel, supra, at 52 (citing Jessup, 757 F.2d at 384).
• When the defense rebuts the presumption, it has demonstrated that the general purpose animating the presumption is inapplicable in that particular case. So even if drug offenses in general raise a presumption of dangerousness, someone who has rebutted the presumption has introduced evidence that his or her own personal risk of continuing to sell drugs is lower.

SCOTUS to hear argument over terms of crack offense resentencing under FIRST STEP Act

The Supreme Court will be hearing oral argument on Wednesday morning in Concepcion v. US, No. 20-1650, which presents the following sentencing issue as phrased by the petitioner in this brief:

Whether, when deciding if it should “impose a reduced sentence” on an individual under section 404(b) of the First Step Act of 2018, 21 U.S.C. § 841 note, a district court must or may consider intervening legal and factual developments.

The Government articulates the issues somewhat differently in its brief:

Whether a district court is required to consider all legal and factual developments occurring after an offender’s original sentencing — whether or not related to the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 — in connection with a motion for a reduced sentence under Section 404 of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5222.

I was happy to be able to join this law professors' amicus brief which stresses the centrality of the 3553(a) factors at federal sentencing, which calls for analysis of all relevant considerations at initial sentencings and at any resentencings.