Sentencing Law and Policy

When might we get any data (or even a statement) from US Sentencing Commission about the COVID state of federal sentencing?

Today marks exactly four months since Prez Trump, on March 13, officially proclaimed that "the COVID-19 outbreak in the United States constitutes a national emergency."  In this post back in March, I expressed disappointment, but understanding, regarding the US Sentencing Commission's failure at that time to put out any data or statement about the coronavirus outbreak and its impact on the federal criminal justice system.  As I said in that post, USSC is not really geared up for producing real-time data even under the best of circumstances, and these are obviously not the best of circumstances.

But since March, the USSC has actually managed to produce and disseminate an impressive array of new publications even during a global pandemic. Here are links to the posts I have done in the last four months reporting on notable new USSC publications:

• US Sentencing Commission published its 2019 Annual Report and Sourcebook of Federal Sentencing Statistics (March 2020)
• US Sentencing Commission released new report on "Path of Federal Criminality: Mobility and Criminal History" (April 2020)
• US Sentencing Commission continues to publish helpful data about the pre-COVID federal sentencing world (April 2020)
• "Length of Incarceration and Recidivism" (April 2020)
• US Sentencing Commission releases awesome new data tool, "Interactive Data Analyzer" (June 2020)
• "Retroactivity & Recidivism: The Drugs Minus Two Amendment" (July 2020)

And this list is an incomplete accounting of the USSC's pandemic productivity, as it has also produced nearly 30 new insightful little data documents in its terrific series of reader-friendly "Quick Facts" publications, as well as a number of other notable and valuable documents like an updated new set of training  "Primers" on a wide array of topics. 

But, disappointingly, amidst all this impressive continued productivity, we are still awaiting the US Sentencing Commission producing any data (or even some kind of statement) about COVID's on-going (and evolving?) impact on the federal criminal justice system.  As I have mentioned before, it would prove extremely helpful to advocates, researchers and surely persons involved in the federal sentencing system to know just about anything about how and how many sentencings are being conducted in federal courts.  I suspect I am not the only one eager to see any data on, for example, how many sentencings are going forward each week given that, in normal times, about an average of 1500 federal sentences are imposed in federal courts every week of the year.  I would also be eager to know if a larger number than usual non-prison sentences are being imposed in those sentencings that are going forward.  And any data on sentence reductions motions involving § 3582(c)(1)(A) would also be so very interesting.

I do not mean to unduly assail the USSC during these challenging times, but I fear its failure to say publicly a single word about the COVID state of federal sentencing can make these times even more challenging for those working in the federal system.  In my view, having the USSC discuss ASAP what data it is trying to collect and when the USSC might report on this data could be of great service and could help advance the cause of thoughtful and consistent federal sentencing amidst uncertain times.

Seventh Circuit panel vacates stay to put federal execution back on schedule for July 13

As reported in this USA Today piece, a Seventh Circuit panel this evening "ruled that the first federal execution in 17 years should go forward Monday, despite concerns raised by the victims' family members that the resurgent coronavirus risked the health of those who planned to witness Daniel Lewis Lee's death by lethal injection."  Here is more:

The court found that the family's argument "lacks any arguable legal basis and is therefore frivolous."

U.S. District Judge Jane Magnus-Stinson on Friday sided with family members who asserted that the pandemic posed an unreasonable health risk to them as witnesses to execution in Terre Haute, Indiana. “The federal government has put this family in the untenable position of choosing between their right to witness Danny Lee’s execution and their own health and safety," the attorney for the family said Sunday.

The family had planned to attend Lee's execution, even though they are opposed to Lee's death sentence for the murders of William Mueller, his wife, Nancy, and her daughter, 8-year-old Sarah Powell. Earlene Branch Peterson, 81, the young victim's grandmother, and other family members have argued that Lee's co-defendant was the unquestioned ringleader in the 1996 robbery-murder yet was sentenced to life in prison.

The Arkansas judge who presided at trial and the lead prosecutor in the case also have expressed their opposition to Lee's death sentence.

"Because the government has scheduled the execution in the midst of a raging pandemic, these (family members) would have to put their lives at risk to travel cross-country at this time," the family's attorney said. "They will now appeal the Seventh Circuit Court of Appeals’ decision to the U.S. Supreme Court in an effort to seek reversal. My clients hope the Supreme Court and the federal government will respect their right to be present at the execution and delay it until travel is safe enough to make that possible.”

The full panel opinion in Peterson v. Barr, No. 20-2252 (7th Cir. July 12, 2020) (available here), runs ten pages and is unanimous.  When I saw that a stay had been entered late Friday by the district court, I was a bit surprised that it focused on the Federal Death Penalty Act and that no mention was made of the federal Crime Victims' Rights Act. The Seventh Circuit panel was plainly unimpressed with arguments based on the FDPA, and now it might be too late for any arguments based in the CVRA. 

I believe various other claims by defendant Lee have been rejected by lower courts, and I am sure they are all going to get to SCOTUS is short order.  But I will be surprised if a majority of the Justices are going to disrupts the feds execution plans.

Prior recent related post:

• With executions looming, lots of news and notes about the federal death penalty 

Tongues wagging about Prez Trump using his clemency pen to grant compassionate release to Roger Stone

Unsurprisingly, lots and lots of folks have lots and lots to say about Prez Trump's decision late Friday to commute the prison sentence of Roger Stone (basics covered here).  I will start this post with two quick points and then round up below some of the other copious commentary already making the rounds.

1. Now do more, Mr. Prez: I am pleased Prez Trump has finally delivered, at least for an old friend with dirt on him, on his promise back in March to look at freeing elderly "totally nonviolent" offenders from federal prisons amid the COVID pandemic.  I am being cheeky here, of course, but meaning to make a serious point: the Stone commutation bothers me far less than Prez Trump's failure to use his clemency powers far more — both before and especially since the coronavirus crisis — to release the many federal prisoners who, like Stone, are older, medically vulnerable and present no clear risk to public safety. 

Back in February 2020, Prez Trump coupled some high-profile clemency grants with commutations to three women of color with no political connections (details here).  I sure wish Prez Trump and key advisers — Kushner?  Kushner?  Kushner? — had tried to couple the Stone commutation with clemency relief for just a few other older federal prisoners whose incarceration may prove deadly and serves little public safety purpose.  But it is not too late to make up for lost time: now do more comparable commutations, Mr. Prez!

2. Now do even more, federal judges: As the title of this post is meant to suggest, the Stone clemency strikes me as another form of compassionate release.  The official statement announcing the commutation made much of an "improper investigation," of "overzealous prosecutors" and of "serious questions about the jury" while also stressing that "Mr. Stone would be put at serious medical risk in prison" and that "Roger Stone has already suffered greatly."  These comments suggest Prez Trump concluded, in the words of 18 USC § 3582(c)(1)(A), that there were "extraordinary and compelling reasons warrant[ing] a reduction" in Stone's prison sentence and that such a reduction was consistent with 3553(a)'s purposes of punishment. 

Thanks to the FIRST STEP Act, judges now have authority to grant comparable sentence reductions, and district judges have granted hundreds of compassionate release motions in response to the COVID crisis.  But thousands of compassionate release requests have been denied, many coming from prisoners who are likely even more vulnerable and even more sympathetic than Stone.  In more than a few cases, I have seen judges indicate considerable sympathy for the plight of a vulnerable older inmate, only to refuse release because the movant had not yet served enough time in prison.  But Roger Stone did not serve any prison time, and yet Prez Trump was still moved by his "medical risk" and by the fact he had "already suffered greatly" even before serving a single day in federal prison.  So this commutation should also be a message to federal judges: do more comparable compassionate releases, even if vulnerable offenders have served little or even no prison time.

I could go on, but rather than continue my tongue wagging about the Stone commutation, I will conclude here with a round-up of just a few other notable takes:

From Robert Mueller, "Roger Stone remains a convicted felon, and rightly so."

From Politico, "'Historic corruption': 2 Republican senators denounce Trump's commutation of Stone"

From Brett Tollman and Arthur Rizer, "Romney wrong to attack Trump commutation of Roger Stone prison sentence"

From Jack Goldsmith and Matt Gluck, "Trump’s Aberrant Pardons and Commutations"

From Jonathan Turley, "Why this Roger Stone commutation is not as controversial as some think"

From Jeffrey Tobin, "The Roger Stone Case Shows Why Trump Is Worse Than Nixon"

"State Violence, Legitimacy, and the Path to True Public Safety"

The title of this post is the title of this new commentary authored by David Kennedy that was one of my very favorite reads this week.  The piece is mostly about police reform and is quite lengthy, but its worth the time (and even a re-read).  Among the many virtues of the piece is the reminder that if — I fear I should say when — we see a considerable spike in crime in the coming months, increased criminality may well primarily reflect decreased trust in law enforcement by the community, not decreased activity by law enforcement in the community.  (I recall making in this post a less-eloquent version of this important point five years ago as there was on-going debate about crime spikes after Ferguson.)   Here is an excerpt:

The protest movement represents core American values and deserves broad bipartisan support.  It is no threat to our efforts to prevent crime and violence; indeed, it represents an opportunity to make those efforts much more successful.  That is because it can support the emergence of a fundamentally better way to produce public safety.  The evidence from the scholarly literature suggests that the more legitimate the law and the police are in the eyes of America’s communities, the less we will actually have to use them.  And while “law and order” has traditionally been a platform for the political right, this goal — using the state’s coercive power no more than absolutely necessary — is one that conservatives should find easy to embrace. In a very real way, more legitimacy in the realm of policing means less government.

Legitimacy is a core element in democracy: the belief of the people in the institutions of government and their power to set rules and gain compliance.  When people think of the law and of policing, they think of the power of the courts, jail and prison, of the gun and the badge.  In fact, that power is trivial compared to voluntary compliance with the law. Most of the time, people do not need to be threatened by the state in order not to kill, rape, and rob.  Most people know that when the law says not to do terrible things, the law is right; when they are tempted, they believe that the law has the standing to say, Don’t.  Scholars like Tom Tyler point out that even criminals obey the law most of the time: They buy groceries, stop at red lights, and seldom kill the people they’re mad at.  Policing research shows very clearly that as legitimacy goes up, violence goes down, voluntary compliance with the law goes up, people call 911 when they need help, and the like.  When legitimacy goes down — as after incidents of police violence — research shows that Black communities withdraw from the police and violence goes up.  

Contrary to what many think “high crime” Black communities are deeply law-abiding.  Research shows that residents in the most troubled areas of those communities have a very high regard for the law, want their neighbors to obey the law, want to be safe, and even want to have good relationships with the police.  But they don’t trust the police, don’t think the police respect them, don’t think the police share their values, think the police are biased, and don’t trust the police to govern themselves.  

Scholars have long characterized this as “legal cynicism“: belief in the law, but not in its institutions, especially the police.  More recently, scholars like Monica Bell have gone beyond this to a profoundly more dire — and in my experience, more accurate — notion of “legal estrangement.”  Bell reminds us that more than 50 years ago, the Kerner Commission found that “police have come to symbolize White power, White racism, and White repression.”  Those beliefs are driven by hundreds of years of history and collective memory and experience, present treatment and mistreatment by police, and the vicarious experience of the endless series of police killings.  “Much literature has shown that, regardless of how trust is measured or conceived, African Americans, particularly those who are poor or who live in high-poverty or predominantly African American communities, tend to have less trust not only in the police, but also in other governmental institutions, in their neighbors, and even in their intimate partner relationships in comparison to other racial and ethnic groups in the United States,” Bell writes.  “Most discussions of African American distrust of the police only skirt the edges of a deeper well of estrangement between poor communities of color and the law — and, in turn, society.” 

This is not about every officer or all officers.  Policing is full of — and in my personal experience dominated by—good and frequently amazing people who do often extraordinary work under unimaginable circumstances. I have had former public defenders come into my organization, hating the police.  Yet as they get to know the officers we work with, they’ve taken me aside to say, “This is really weirding me out; I like them.”  That’s not the point. The point is not the tired argument about good officers and bad officers, or “bad apples” or the lack thereof.  It is that the institution of policing has been ungovernable.  Officers do terrible things, and nothing happens.  Departments make terrible choices — Let’s “protect” communities by swamping them with officers and stopping everybody who moves — and there’s no way to stop them.  Disrespect is rampant — in many cities, the single most frequent complaint is officers cursing the public — and nothing happens or changes.  The Supreme Court of the United States creates case law that makes it nearly impossible to hold officers accountable for killings and shootings.  Cities, pressured by the political clout of police unions, give away the powers that would let chiefs fire officers they know are toxic and make departments reinstate the officers they have managed to get rid of.  Police union heads sully the names of Black men killed by their members and get reelected.  No institution is perfect; doctors kill patients all the time.  But when a doctor kills through gross malpractice, the head of his hospital doesn’t throw a press conference to talk about how the dead man had a criminal record and really deserved it. 

Prior related post:

• Keeping in mind the research that may suggest crime increases resulting from a different kind of "Ferguson Effect" 

As was widely expected, Prez Trump commutes Roger Stone's sentence just before he was due to report to federal prison

As detailed via this official statement from the White House, this evening "President Donald J. Trump signed an Executive Grant of Clemency commuting the unjust sentence of Roger Stone, Jr."  Here is more from the statement:

Roger Stone is a victim of the Russia Hoax that the Left and its allies in the media perpetuated for years in an attempt to undermine the Trump Presidency.... As it became clear that these witch hunts would never bear fruit, the Special Counsel’s Office resorted to process-based charges leveled at high-profile people in an attempt to manufacture the false impression of criminality lurking below the surface.  These charges were the product of recklessness borne of frustration and malice.  This is why the out-of-control Mueller prosecutors, desperate for splashy headlines to compensate for a failed investigation, set their sights on Mr. Stone.  Roger Stone is well known for his nearly 50 years of work as a consultant for high-profile Republican politicians, including President Ronald Reagan, Senator Bob Dole, and many others. He is also well known for his outspoken support for President Donald J. Trump and opposition to Hillary Clinton.

Mr. Stone was charged by the same prosecutors from the Mueller Investigation tasked with finding evidence of collusion with Russia.  Because no such evidence exists, however, they could not charge him for any collusion-related crime. Instead, they charged him for his conduct during their investigation. The simple fact is that if the Special Counsel had not been pursuing an absolutely baseless investigation, Mr. Stone would not be facing time in prison.

In addition to charging Mr. Stone with alleged crimes arising solely from their own improper investigation, the Mueller prosecutors also took pains to make a public and shameful spectacle of his arrest....

Not only was Mr. Stone charged by overzealous prosecutors pursing a case that never should have existed, and arrested in an operation that never should have been approved, but there were also serious questions about the jury in the case.  The forewoman of his jury, for example, concealed the fact that she is a member of the so-called liberal “resistance” to the Trump Presidency.  In now-deleted tweets, this activist-juror vividly and openly attacked President Trump and his supporters.

Mr. Stone would be put at serious medical risk in prison.  He has appealed his conviction and is seeking a new trial. He maintains his innocence and has stated that he expects to be fully exonerated by the justice system.  Mr. Stone, like every American, deserves a fair trial and every opportunity to vindicate himself before the courts.  The President does not wish to interfere with his efforts to do so.  At this time, however, and particularly in light of the egregious facts and circumstances surrounding his unfair prosecution, arrest, and trial, the President has determined to commute his sentence. Roger Stone has already suffered greatly.  He was treated very unfairly, as were many others in this case. Roger Stone is now a free man!

I am disinclined to comment at length on this use of the clemency power or this very Trumpian statement explaining it.  But I must note that, because Prez Trump only commuted the sentence and did not pardon the Stone's felony convictions, it is not really accurate to say "Roger Stone is now a free man!"  There are thousands of laws that restrict the rights and opportunities of persons with a felony conviction and so Stone is, for example, not free to possess a firearm.

Prior related posts:

• For Roger Stone, federal prosecutors advocate for within-guideline sentence of 7.3 to 9 years in prison ... which Prez Trump calls a "miscarriage of justice!" 
• DOJ now says "sentence of incarceration far less than 87 to 108 months [for Roger Stone] would be reasonable under the circumstances"  
• Would it be improper for a President to write a character letter for a defendant facing federal sentencing?
• Roger Stone case generating some useful reflections on federal sentencing challenges and problems and lessons
• Roger Stone gets 40-month federal prison sentence ... but will he ever actually serve it?
• Is Prez Trump legally unable to grant clemency to Roger Stone? 
• Will Prez Trump use his clemency pen to "rescue" his pal Roger Stone from federal prison? 
• Donald Trump hinting that he will use his clemency powers on behalf of Roger Stone 

With executions looming, lots of news and notes about the federal death penalty

Last month, as noted here, Attorney General William Barr directed the federal Bureau of Prisons to schedule the executions of four federal death-row inmates for this summer.  As of this writing, according to this DPIC page, the federal executions scheduled for Monday, July 13 (of Daniel Lewis Lee) and Friday, July 17 (of Dustin Lee Honken) are going forward.  Unsurprisingly, the prospect of the first federal executions in nearly two decades has led to lots of folks paying a lot more attention to the federal death penalty,  Here are just some of the press pieces catching my eye recently:

From Bloomberg Law, "Vast Majority on Federal Death Row Have Significant Impairments"

From The Crime Report, "Victim Relatives, Priest Seek to Delay Federal Executions"

From The Hill, "EU condemns U.S. for resuming federal executions"

From The Hill, "Executing four white men won't erase death penalty racism"

From the National Catholic Reporter, "Cardinal Tobin asks Trump to grant clemency to federal death-row inmate"

From Reuters, "Special Report: How the Trump administration secured a secret supply of execution drugs"

From USA Today, "Re-opening federal death chamber: Victim opposition, pandemic threaten first execution in 17 years"

Is releasing people from prison really that hard? I suppose it is if you cannot shake a carceral mindset.

The question in the title of this post is my response to this recent lengthy Atlantic commentary by Barbara Bradley Hagerty headlined "Releasing People From Prison Is Easier Said Than Done: As the pandemic threatens the lives of those behind bars, the country must confront a system that has never had rehabilitation as its priority."  This piece is reform-minded, and I recommend it, but its headline, much of its prose, and its overall spirit embrace a kind of carceral mentality that serves to reify a mass incarceration message.  These excerpts, as I will explain below, spotlight my concerns:

Some governors, alarmed at the deaths in prisons and jails and worried about the risk to surrounding communities, are listening — sort of, with an ear attuned to the political liability. More than half of the states have agreed to release people convicted of low-level crimes, people who are nearing the end of their sentences, or people who merit compassionate release, such as pregnant people or older, vulnerable inmates.

“It’s been helpful. I know that people have gotten out, and I am moved by their release,” says Nicole Porter, the director of advocacy at the Sentencing Project, a research organization that campaigns for sentencing reform. “But none of it has been substantial.  And what I hope this moment tells us is that our incarceration rate is a function of politics — because there are many questions about who needs to be incarcerated.”

To meaningfully reduce America’s prison population and slow the pandemic will require cutting away not just fat but muscle, releasing not just nonviolent drug offenders but those convicted of violent crimes.  The difficulty of doing so, in both practical and moral terms, is enormous.  Which people convicted of murder or armed robbery do we release? How do we decide?  And how do we guarantee that they won’t offend again, especially as they try to restart their life during the worst economic collapse in nearly a century?...

Advocates say prisons are brimming with candidates who deserve a second chance—men and women who made egregious mistakes when they were young, whose crimes say more about the impulsiveness of youth and the trickiness of navigating inner-city violence than they do about character.  Yet in large part, these are not people whom the system has been preparing for release.

Prison can serve many purposes — to deter people from committing crimes in the first place, to punish them if they do, or to rehabilitate them and usher them back to normal life. America has by and large chosen the punitive path, imposing decades-long sentences intended to reduce crime on the streets.  During that time, inmates usually don’t receive the kind of training or care that would enable them to return to the outside world and build a new, stable life. This presents a giant hurdle for those who would wish to release prisoners now....

Those are the practical challenges.  The moral question — who deserves to be released? — is even more daunting.  Is the inmate truly penitent, or merely saying the right words? Has he matured past his violent tendencies, or is he a tinderbox waiting to ignite once he’s out?  Does the family of the victim agree, or will his release only add to their pain?  Is the crime simply so heinous that even a perfect record cannot overcome it?

The last paragraph I have excerpted here is perhaps the clearest example of a carceral mindset: when asking "who deserves to be released?", the writer is necessarily assuming that everyone incarcerated not only already "deserves" to be incarcerated, but also "deserves" to continue to be incarcerated.  Further, the author then suggests that, to "deserve" release, an "inmate" must be "truly penitent" AND must have "matured past his violent tendencies" AND must have the "family of the victim agree." And, even then it seems, a "perfect record" still should not permit release amidst a global pandemic killing hundreds of prisoners if a person's crime is "simply so heinous."

For anyone eager to see a US criminal justice system operating with a deep commitment to liberty and justice, this thinking should be — must be — completely flipped.  The proper "daunting" moral question  is who deserves to still be incarcerated, especially amidst a global pandemic with inherently and worsening inhumane prison conditions.  If an incarcerated person is "truly penitent" OR likely has "matured past his violent tendencies" OR has the "family of the victim" in support, then that person ought no longer be incarcerated.  And, even without anything close to a "perfect record," an alternative to incarceration should still be the presumption for any and everyone whose crime or criminal record is not truly heinous.

Similar rhetoric earlier in the piece is comparably problematic, such as the query "how do we guarantee that they won’t offend again" when considering who to release from prison.  It is important — and I think this piece means to get us usefully thinking about — the importance of prison programming and outside support that seeks to minimize the risk of recidivism for persons leaving prison.  But we are never going to be able to "guarantee" that any cohort of individuals will never commit any kind of crime.  When we consider building a new highway, nobody expects public officials to "guarantee" there will never be an accident on that highway.  We want a new road to be as safe as possible, but we recognize that the array of benefits that can come from having a new road generally justify the inevitable public safety risks it creates.   Similarly, we must be ever mindful of the array of benefits that can come from having less people in prison and not demand or even suggest that people should be released from prison only if and only when public officials can "guarantee that they won’t offend again."

Finally, for now at least, I must again lament the tendency in so many of these kinds of discussions to start with the framing that meaningful action here "will require cutting away not just fat but muscle, releasing not just nonviolent drug offenders but those convicted of violent crimes."  I agree that cutting away the "fat" may not alone be enough, but let's focus on getting that hard work done before we fixate on the additional challenges of cutting "muscle."  As this great Prison Policy Initiative pie chart reminds us, roughly 50% of our national prison and jail populations are serving time for what are deemed "non-violent" offenses.  When we let out all or most or even some significant portion of this million+ people in cages, then I will be more than ready to wring my hands over which "violent" offenders to release.  But to now get deeply concerned about exactly which "people convicted of murder or armed robbery" should be released risks creating the impression that these types of offenders are the bulk of our prison populations, when they comprise less than 25% of all the people put in cages in the so-called home of the free and land of the brave.  (Also, for the very most serious of offenders, the debate is much less complicated since presumptive release when they are elderly or ill generally makes the most sense.)

I could go on and on, but I hope my point is clear.  Even as we discuss reform and recognize all the challenges surrounding decarceration efforts, we must be ever mindful of how decades of mass incarceration has not only badly hurt our nation and our values, but also badly hurt how we talk and think about doing better.

Notable review of worldwide decarceration efforts in response to COVID-19

Via this webpage overview and this key findings document, the group Harm Reduction International has assembled some interesting information about how countries around the world have been approaching decarceration efforts in response to the coronavirus.  Here are excepts of the overview and key findings:

Harm Reduction International monitored prison decongestion measures adopted around the world between March and June 2020 in response to COVID-19, and found evidence of such schemes in 109 countries.  We tracked criteria for eligibility and implementation of the measures. Noting that UN experts recommended countries release "those charged for minor and non-violent drug and other offences" in the context of COVID-19, we further focused on how these measures impact on people in prison for drug offences.

Despite a scarcity of official information, we found that around a fourth of countries implementing decongestion schemes explicitly excluded people incarcerated for drug offences; effectively prioritising punitive approaches to drug control over the health of the prison population and the individual.

Looking at the cumulative effect of COVID-19-related schemes, we observe that in total, they reduced the global prison population by less than 6%, as at 24 June 2020.  This falls significantly short of expectations and the significant political commitments made in the name of public health.

109 countries and territories adopted decongestion measures in an attempt to curb the risk of COVID-19 transmission within prisons. The main measures introduced are:

• early releases, often through sentence commutation (54 countries),
• pardons (34 countries),
• diversion to home arrest (16 countries), and
• release on bail/parole (8 countries).

In some countries (including Belgium, Colombia, Costa Rica and Iran) release measures are temporary, therefore prisoners are expected to return to prisons at the end of the emergency....

A close up on countries:  

• No decongestion measures were reported in China and Russia, the countries with respectively the 2nd and 4th highest prison populations in the world.
• The majority of countries in Africa and Latin America introduced decongestion schemes.
• The most significant gap in uptake can be observed in Eastern Europe and Central Asia, where only Belarus and Kyrgyzstan adopted ad-hoc measures.  Several Southeast Asian countries adopted measures to decongest prisons, which are severely overcrowded — mainly due to the high rate of incarceration for drug offences. Indonesia, the Philippines, Myanmar and Thailand released a total of 90,000 prisoners.  However, people detained for certain drug offences are excluded from eligibility in Indonesia and the Philippines.
• Hundreds of foreign nationals, many of whom are migrant workers, were repatriated following pardons and other early release measures adopted in the Middle East —  including 150 Bangladeshi nationals imprisoned for drug offences in Bahrain.

Great sentencing pieces in 'New Developments in Public Defense Research" collection in Criminal Justice Policy Review

I just came across this great collection of articles under the title "New Developments in Public Defense Research," which appears in the July 2020, issue of the journal Criminal Justice Policy Review. The volume includes seven original papers and an introduction on a range of topics related to public defenders and public defense.  The whole issue is worth checking out, and sentencing fans might be especially interested in these articles:

Including Assets-Based Mitigation in Sentencing by Elizabeth S. Vartkessian

Abstract:  Mitigation evidence consists of information about an accused person that is typically used to advocate for a less severe sentence.  Such evidence most frequently consists of information related to the crime and personal factors that can be separated into two broad categories: deficits and assets-based mitigation.  This article focuses on the importance of assets-based mitigation in sentencing and evaluates if and how state sentencing procedures contemplate and allow for consideration of such evidence.  A content analysis of available state sentencing procedures reveals that states tend to circumscribe mitigation to factors related to the crime or deficits, but largely neglect to give a vehicle to consider assets-based mitigation, which should play a central role in achieving just outcomes.  This article therefore argues for reform to sentencing laws to better accommodate assets-based mitigation by including information related to the defendant’s capacity for growth, self-improvement, and redemption.

 

Decision-Making and Holistic Public Defense Post-Montgomery v. Louisiana by Jeanette Hussemann and Jonah Siegel

Abstract: In 2012, the U.S. Supreme Court ruled in Miller v. Alabama that mandatory sentences of life without the possibility of parole (LWOP) for youth are unconstitutional.  In 2016, the Court held in Montgomery v. Louisiana that the ruling in Miller should be applied retroactively. Drawing from qualitative interviews with justice actors, and individuals who were sentenced to LWOP as juveniles and paroled, this article examines the implementation of Miller-Montgomery in Michigan, the factors that influence decisions to release juvenile lifers, and their reentry process.  In doing so, we focus specific attention to the role of publicly appointed defense attorneys and the application of holistic defense practices to support Montgomery case mitigation and juvenile lifer reentry.  Findings indicate that institutional disciplinary and programming records, emotional wellness, statements by victims’ family members, political considerations, and reentry plans are key considerations when deciding whether a juvenile lifer should be eligible for parole.

Michael Cohen, Prez Trump's former lawyer, sent back to federal prison because he "refused the conditions of his home confinement"

As reported in this new AP piece, "President Donald Trump’s former personal lawyer and fixer, Michael Cohen, was returned to federal prison Thursday, weeks after his early release to serve the remainder of his sentence at home because of the coronavirus pandemic, the federal Bureau of Prisons said."  Here is more:

In a statement to The Associated Press, the Bureau of Prisons said Cohen had “refused the conditions of his home confinement and as a result, has been returned to a BOP facility.” His return to prison comes days after the New York Post published photos of him and his wife enjoying an outdoor meal with friends at a restaurant near his Manhattan home.

Roger Adler, one of Cohen's attorneys, called his jailing an “overly draconian response to what was at worst poor judgment.”  He said it was Cohen's belief that being on medical furlough “did not prohibit venturing beyond his apartment and dining out.”

“It's not a crime to eat out and support local businesses," Adler told the AP, adding Cohen had been “thrown back into a petri dish of coronavirus.”

Cohen, who pleaded guilty to tax evasion, campaign finance fraud and lying to Congress, had been released May 21 on furlough as part of an attempt to slow the spread of the virus in federal prisons. Cohen, 53, began serving his sentence in May 2019 and had been scheduled to remain in prison until November 2021.

Cohen’s convictions were related to crimes including dodging taxes on $4 million in income from his taxi business, lying during congressional testimony about the timing of discussions around an abandoned plan to build a Trump Tower in Russia, and orchestrating payments to two women to keep them from talking publicly about alleged affairs with Trump.  Prosecutors said the payments amounted to illegal campaign contributions.  Trump, who denied the affairs, said any payments were a personal matter....

A federal judge had denied Cohen’s attempt for an early release to home confinement after serving 10 months in prison and said in a May ruling that it “appears to be just another effort to inject himself into the news cycle.” But the Bureau of Prisons can move prisoners to home confinement without a judicial order.

Intriguingly, this New York Daily News article, headlined "Michael Cohen arrested after refusing gov’t demand to not publish Trump book during sentence: friend," suggests that Cohen's decision to eat out at a restaurant is not the real reason he is headed back to federal prison:

Michael Cohen was thrown back into prison on Thursday after refusing to sign a home confinement agreement requiring him to not publish a tell-all book about President Trump for the duration of his sentence, according to Lanny Davis, his friend and former attorney.

Cohen was presented with the hush contract while sitting down with his probation officer in downtown Manhattan for a meeting that he expected to be about fitting an electronic surveillance bracelet to his ankle, Davis told reporters on a conference call.  In addition to not publishing a book, the agreement required Cohen to not talk to any media outlets for the remainder of his three-year sentence, according to Davis, who wasn’t present but said he got the play-by-play recounted to him by Cohen attorney Jeffrey Levine.

“That disturbed him because he pointed out that he could talk to the media when he was in Otisville — why not in home confinement?” Davis said, referring to the upstate New York prison where Cohen was doing hard time.  After making clear he would not sign, the probation officer left the room, Davis said.  “The next thing that they saw coming out of an elevator was three U.S. marshals holding shackles,” Davis continued....

“The next thing that happened is the marshals said they had an order signed by somebody from BOP and the order was to arrest him and put him in jail and they started to put shackles on him,” Davis said, using an acronym for the Bureau of Prisons.  Having a change of heart, Cohen told the marshals: “I’ll sign exactly what you want me to sign so I don’t have to go back to jail,” according to Davis. 

But the marshals didn’t budge, Davis said.  “It’s out of our hands,” one of them told Cohen, according to Davis. Davis said Cohen was taken to either the Metropolitan Correctional Center in Manhattan or the Metropolitan Detention Center in Brooklyn.

A spokesman for BOP confirmed Cohen had been taken into custody for having “refused the conditions of his home confinement,” but declined to elaborate.

Prior Michael Cohen posts:

• Michael Cohen, Prez Trump's fixer, cuts a plea deal to fix his federal sentence between 46 to 63 months in federal prison
• Prez Trump advocating for a whole new kind of sentencing reform: he says cooperation deals "almost ought to be outlawed. It’s not fair." 
• Michael Cohen, former lawyer to Prez trump, pleads guilty to lying to Congress 
• Michael Cohen makes pitch for "time-served and restitution to the IRS" based largely on his continuing cooperation
• Feds request for Michael Cohen a "substantial term of imprisonment" though with a "modest downward variance" from Guideline range of 51-63 months in prison 
• New letter from Prez Trump's former lawyer, Michael Cohen, seeking sentence modification citing this blog's coronavirus coverage 
• Michael Cohen reportedly among those being moved by feds from prison to home confinement 
• Michael Cohen reportedly really getting released to home confinement now

SCOTUS holds in McGirt, via 5-4 vote with Justice Gorsuch authoring majority opinion, that big part of Oklahoma is a reservation precluding state prosecutions

Proving yet again that he is fully prepared to rule in favor of criminal defendants when he believes he is required to do so by the rule of law, Justice Gorsuch this morning voted with the Supreme Court's more liberal justices to hold in McGirt v. Oklahoma, No. 18–9526 (S. Ct. July 9, 2020) (available here) that a huge part of the state of Oklahoma "remains an Indian reservation for purposes of federal criminal law."  Here is how the opinion of the Court, authored by Justice Gorsuch, gets started:

On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever.  In exchange for ceding “all their land, East of the Mississippi river,” the U.S. government agreed by treaty that “[t]he Creek country west of the Mississippi shall be solemnly guarantied to the Creek Indians.” Treaty With the Creeks, Arts. I, XIV, Mar. 24, 1832, 7 Stat. 366, 368 (1832 Treaty).  Both parties settled on boundary lines for a new and “permanent home to the whole Creek nation,” located in what is now Oklahoma. Treaty With the Creeks, preamble, Feb. 14, 1833, 7 Stat. 418 (1833 Treaty). The government further promised that “[no] State or Territory [shall] ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves.” 1832 Treaty, Art. XIV, 7 Stat. 368.

Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law.  Because Congress has not said otherwise, we hold the government to its word.

The import and impact of this ruling is most clear from the first paragraphs of Chief Justice Roberts' dissent:

In 1997, the State of Oklahoma convicted petitioner Jimcy McGirt of molesting, raping, and forcibly sodomizing a four-year-old girl, his wife’s granddaughter. McGirt was sentenced to 1,000 years plus life in prison.  Today, the Court holds that Oklahoma lacked jurisdiction to prosecute McGirt — on the improbable ground that, unbeknownst to anyone for the past century, a huge swathe of Oklahoma is actually a Creek Indian reservation, on which the State may not prosecute serious crimes committed by Indians like McGirt.  Not only does the Court discover a Creek reservation that spans three million acres and includes most of the city of Tulsa, but the Court’s reasoning portends that there are four more such reservations in Oklahoma.  The rediscovered reservations encompass the entire eastern half of the State — 19 million acres that are home to 1.8 million people, only 10%–15% of whom are Indians.

Across this vast area, the State’s ability to prosecute serious crimes will be hobbled and decades of past convictions could well be thrown out.  On top of that, the Court has profoundly destabilized the governance of eastern Oklahoma.  The decision today creates significant uncertainty for the State’s continuing authority over any area that touches Indian affairs, ranging from zoning and taxation to family and environmental law.

None of this is warranted. What has gone unquestioned for a century remains true today: A huge portion of Oklahoma is not a Creek Indian reservation. Congress disestablished any reservation in a series of statutes leading up to Oklahoma statehood at the turn of the 19th century. The Court reaches the opposite conclusion only by disregarding the “well settled” approach required by our precedents. Nebraska v. Parker, 577 U. S. 481, ___ (2016) (slip op., at 5).

Federal prison population, per BOP report of "Total Federal Inmates." drops below 160,000

Two months ago, I noted in this post that federal Bureau of Prisons' official "Total Federal Inmates" count hit a notable milestone when the population dropped down below 170 thousand to an official total of 169,080 as of May 7, 2020.  Though I have been speculating that historic weekly declines would at some point stop or at least significantly slow, that has not happened yet.  In fact, the first part of July brings another modern low and another milestone passed: the new BOP numbers at this webpage now report "Total Federal Inmates" at 159,692.  (For recent context, the BOP reported population dropped from 163,441 (as of June 11) to 162,578 (as of June 18) to 161,640 (as of June 25) to 160,690 (as of July 2).)

Given that the COVID-19 crisis does not seem to be letting up, especially in large jurisdictions that historically generate lots of federal criminal cases like Arizona, California, Florida and Texas, I am lately starting to think these federal prison population declines might now be expected to continue for the foreseeable future.  Given that, as recent research notes, "COVID-19 case rates have been substantially higher and escalating much more rapidly in prisons than in the US population" and especially given that the death rate in the prison population is "3.0 times higher than would be expected" in the general population, responsible criminal justice and public health officials should still be seeking to drive down all prison populations as quickly and as robustly as possible.

A few of many prior related posts:

• Federal prison population, thanks in part to the FIRST STEP Act, hits lowest level in over 15 years (from July 2019)
• Federal prison population, due seemingly to COVID responses, hits another modern low (which is still very high) (from April 2020)
• According to BOP reporting, federal prison population now shrinking about 1,000 persons per week (from April 2020)
• Federal prison population drops below 170,000 for first time in nearly two decades (from May 2020)
• As federal prison population continues remarkable decline, can anyone predict what might be a new normal? (from May 2020)
• Is the number of federal prisoners about to spike up as BOP moves nearly 7000 new inmates into federal facilities? (from May 2020) 
• Federal inmate population, as reported by BOP, continues steady decline (which continues my wondering about data)(from May 2020)
• "Total Federal Inmates," as reported by BOP, drops below 165,000 (from June 2020)
• "Total Federal Inmates," as reported by BOP, drops another 1000 down to 163,441 (from four weeks ago)
• BOP accounting of "Total Federal Inmates" continues to drop, though pace may be slowing (from three weeks ago)
• Federal prison population, per BOP accounting of "Total Federal Inmates," drops down to 161,640 (from two weeks ago)
• As July starts, "Total Federal Inmates" as reported by BOP, down to 160,690 (from last week)

Texas completes second US execution in COVID era of a defendant who committed murder at age 18

As reported in this local article, "Texas executed Billy Joe Wardlow on Wednesday night for a 1993 East Texas robbery and murder. It was the state's first execution since the coronavirus swept through the state."  Here is more:

In late appeals, Wardlow's lawyers argued that his death should be stopped because of the dangers presented by the rising pandemic and his young age at the the time of the crime. Neuroscientists and a group of Texas lawmakers also raised concerns with sentencing people who had committed crimes under 21 to death because of brain immaturity.  All of Wardlow's appeals were denied by the U.S. Supreme Court just after 6 p.m., the scheduled time of execution.

After 25 years on death row, Wardlow, aided by neuroscientists, asked the U.S. Supreme Court to rule that at 18, he was too young to face Texas’ death penalty. Nearly 60 Texas lawmakers also informed the Texas Board of Pardons and Paroles, which could recommend a delay to the execution, that they plan to take up the issue of age and the death penalty in the 2021 Legislature.  But on Monday, the board voted against halting the execution until then....

Since 2005, the Supreme Court has held that death sentences are unconstitutional for those 17 or younger at the time of the crime because of their vulnerability, comparative lack of control and still-undefined identity.  Some state and lower federal courts have questioned in recent years whether the upper limit of 18 is too young as new science emerges that shows the brains of people ages 18 to 20 are “functionally indistinguishable” from those of 17-year-olds in terms of moral culpability, according to Wardlow’s brief.

In a plea to stop his execution and invalidate his death sentence, Wardlow asked the high court to rule that the death penalty is unconstitutional for those under 21 — but just in Texas. That’s because a Texas death sentence requires a jury to unanimously agree that a person convicted of capital murder would likely be a future danger to society — a decision Wardlow’s attorney and a group of brain researchers said is impossible to make for an 18-year-old....

Before Wednesday, Texas had not held an execution since the pandemic took hold of the state in March — a long stretch for the state that carries out the most executions by far. The Court of Criminal Appeals halted four scheduled executions from March to May "in light of the current health crisis and the enormous resources needed to address that emergency."...

Texas executions are held at the Huntsville Unit in Huntsville, a prison that on Wednesday reported active infections among inmates and staff in a city that has seen a high surge of cases, largely due to the fact that it has seven prisons and many prison employees. Wardlow’s attorneys argued that holding an execution was still too dangerous, potentially exposing to the virus employees who have to attend the execution, witnesses and the community.

Wardlow was the third person to be executed in Texas this year and the second in the country since the coronavirus swept the nation.

Notable criminal justice reform recommendations from Biden-Sanders Unity Task Force

As reported in this NPR piece, a "joint effort by former Vice President Joe Biden and Vermont Sen. Bernie Sanders to unify Democrats around Biden's candidacy has produced a 110-page policy wish list to recommend to the party's presumptive presidential nominee."  Here is a bit more context:

The policy document [available here] — the work of six joint task forces appointed by Biden and Sanders in May — would give the former vice president a road map to that goal. "The goals of the task force were to move the Biden campaign into as progressive a direction as possible, and I think we did that," Sanders told NPR. "On issue after issue, whether it was education, the economy, health care, climate, immigration, criminal justice, I think there was significant movement on the part of the Biden campaign."...

Biden's campaign has yet to publicly commit to doing anything other than "reviewing" the recommendations. If he adopts them, the recommendations would shift Biden to the left, but they would not completely transform the platform he's been running on for more than a year.

The criminal justice discussion and recommendations, which are lengthy and appear at pp. 6-10 and 56-62 of this huge document, cannot be easily summarized. But these prosecutorial, sentencing and rentry reform recommendations are among the ones I find most notable and salutary:

Federal Prosecutorial Guidelines: Immediately withdraw the Trump Administration’s guidance advising prosecutors to pursue the harshest penalties possible, even for low-level offenses. Reinstate the Obama-Biden Administration's Smart on Crime Initiative, and issue new federal guidelines that advise prosecutors not to overcharge cases in order to coerce plea deals, or to pursue harsher sentences in order to penalize citizens for exercising their right to a jury trial....

Support Progressive Prosecutors: Support new state prosecutors through funding and technical support in their efforts to ensure public safety while reducing incarceration....

Marijuana: Decriminalize marijuana use and legalize marijuana for medical purposes at the federal level.  Allow states to make their own decisions about legalizing recreational use. Automatically expunge all past marijuana convictions for use and possession.  Lift budget rider blocking DC from taxing and regulating legal marijuana and remove marijuana use from the list of deportable offenses.  Encourage states to invest tax revenue from legal marijuana industries to repair damage to Black and brown communities hit hardest by incarceration.

Support Diversion Programs: Reduce criminal penalties for drug possession and support increased use of drug courts and treatment diversion programs instead of incarceration for those struggling with substance use disorders.

Death Penalty: Abolish the death penalty at the federal level, and incentivize states to follow the federal government’s example.

Mandatory Minimums: Empower judges to determine appropriate sentences, by fighting to repeal mandatory minimums at the federal level and give states incentives to repeal their mandatory minimums.

Retroactive Reforms: Make all sentencing reforms retroactive to allow for individualized resentencing.

Crack/Cocaine Sentencing Disparity: End the federal crack and powder cocaine disparity in sentences, and make the change retroactive.

Clemency Board: To avoid possible institutional bias and ensure people have a fair and independent evaluation, establish an independent clemency board, composed and staffed by people with diverse backgrounds.  Expand Obama-era criteria for proactive clemency initiative to address individuals serving excess sentences.

Compassionate Release: Reinvigorate compassionate release so that the sick and elderly are transitioned out of incarceration so long as they do not pose a public safety risk....

Sentence Length and Early Release: Task the U.S. Sentencing Commission with conducting a comprehensive review of existing sentencing guidelines and statutory sentencing ranges, with the goal of generating legislative recommendations, promulgating new guidelines, and issuing formal guidance to reduce unreasonably long sentences and promote rehabilitation.  The Commission should make recommendations regarding early release options, including expanding good time credits, reinstating federal parole, and creating a “second look” mechanism permitting federal judges to reevaluate sentences after a certain amount of time served.  Any such options should use a systematic, evidence-based approach that reduces risks to public safety, prevents racially disparate implementation, reduces the total number of people under federal custody and supervision, and limits the duration and conditions of supervision....

Removing barriers to reentry: Remove restrictions on access to public housing, employment, occupational licenses, driver’s licenses, and public benefits.  Create a U.S. Reentry Commission to conduct a comprehensive review of barriers to reentry, with the goal of taking executive action and proposing legislation to remove as many as possible.  Include recommendations for reforming parole and probation, including preventing reincarceration for technical violations, as well as expungement and sealing of convictions.

"COVID-19 Cases and Deaths in Federal and State Prisons"

The title of this post is the title of this new Research Letter just published in JAMA authored by Brendan Saloner, Kalind Parish, Julie A. Ward, Grace DiLaura and Sharon Dolovich.  Here are some excerpts:

Novel coronavirus disease 2019 (COVID-19) represents a challenge to prisons because of close confinement, limited access to personal protective equipment, and elevated burden of cardiac and respiratory conditions that exacerbate COVID-19 risk among prisoners.  Although news reports document prison outbreaks of COVID-19, systematic data are lacking. Relying on officially reported data, we examined COVID-19 case rates and deaths among federal and state prisoners....

By June 6, 2020, there had been 42 107 cases of COVID-19 and 510 deaths among 1 295 285 prisoners with a case rate of 3251 per 100 000 prisoners.  The COVID-19 case rate for prisoners was 5.5 times higher than the US population case rate of 587 per 100 000.  The crude COVID-19 death rate in prisons was 39 deaths per 100 000 prisoners, which was higher than the US population rate of 29 deaths per 100 000 (Table).  However, individuals aged 65 years or older comprised a smaller share of the prison population than of the US population (3% vs 16%, respectively) and accounted for 81% of COVID-19 deaths in the US population.  The Table provides a standardized calculation showing that the adjusted death rate in the prison population was 3.0 times higher than would be expected if the age and sex distributions of the US and prison populations were equal....

COVID-19 case rates have been substantially higher and escalating much more rapidly in prisons than in the US population.  One limitation of the study is that it relied on officially reported data, which may be subject to inaccuracies and reporting delays, but are the only data available.  Comprehensive data on testing rates were not available, and testing rates in both prisons and the overall population were uneven, with many facilities testing no prisoners or only symptomatic persons.  Mass testing in select prisons revealed wide COVID-19 outbreaks, with infection rates exceeding 65% in several facilities.  Reported case rates for prisoners therefore likely understated the true prevalence of COVID-19 in prisons.

A second limitation is that departments of corrections generally did not report demographic data on decedents, and therefore we could not adjust death rates to account for race/ethnicity and comorbidity.  This study focused on prisons but did not include jails or other detention facilities where there have been notable COVID-19 outbreaks.  Although some facilities did engage in efforts to control outbreaks, the findings suggest that overall, COVID-19 in US prisons is unlikely to be contained without implementation of more effective infection control.

"Retroactivity & Recidivism: The Drugs Minus Two Amendment"

The title of this post is the title of this notable new US Sentencing Commission report.  A summary of the report is provided on this USSC webpage and provides these basics:

Summary

This publication analyzes recidivism rates among drug offenders who were released immediately before and after retroactive implementation of the 2014 "Drugs Minus Two" Amendment.

The report tracked the recidivism rate of two study groups:

• Retroactivity Group: 7,121 offenders who received sentence reductions through retroactive application of the Drugs Minus Two Amendment and who were released early from October 30, 2015, to May 31, 2016.
• Comparison Group: 7,132 offenders who would have been eligible for sentence reductions through retroactive application of the Drugs Minus Two Amendment but were released between May 1, 2014, and October 29, 2015, having served their full sentences before the Drugs Minus Two Amendment could be retroactively applied

Findings 

The Commission's report aims to answer the research question, "Did the reduced sentences for the Retroactivity Group result in increased recidivism?"  The Commission found the following:

• There was no statistically significant difference in the recidivism rates of offenders released early pursuant to retroactive application of the Drugs Minus Two Amendment and a comparable group of offenders who served their full sentences.
• This outcome may be attributed, at least in part, to the eligibility criteria required by the Commission, and the careful consideration of those criteria by judges — particularly public safety considerations — in exercising their discretion to grant or deny retroactivity motions.

Interestingly, though apparently not reaching a level of statistical significance, the Sentencing Commission's data actually show that the group who received reduced sentences had a lower rate of recidivism.  From the Key Findings at page 6 of the full report (with my emphasis added):

There was no statistically significant difference in the recidivism rates of the Retroactivity Group (offenders who were released on average 37 months early through retroactive application of the Drugs Minus Two Amendment) and the Comparison Group (offenders who would have been eligible for retroactivity but had served their sentences before retroactivity took effect). Over a three-year period following their release from prison, the Retroactivity Group had a recidivism rate of 27.9 percent compared to 30.5 percent for the Comparison Group. This outcome may be attributed, at least in part, to the eligibility criteria required by the Commission, and the careful consideration of those criteria by judges — particularly public safety considerations — in exercising their discretion to grant or deny retroactivity motions.

The similarity in the recidivism rates of the Retroactivity Group and the Comparison Group held true across all drug types. Among offenders convicted of offenses with the same primary drug type — Powder Cocaine, Crack Cocaine, Heroin, Marijuana, Methamphetamine, and Other Drugs — offenders in the Retroactivity Group had similar recidivism rates to offenders in the Comparison Group, although the recidivism levels varied by drug type. The highest rates were observed among Crack Cocaine offenders (35.1% in the Retroactivity Group and 37.5% in the Comparison Group) and the lowest rates among Powder Cocaine offenders (19.5% in the Retroactivity Group and 22.3% in the Comparison Group).

I am quite inclined to embrace the USSC's assertion that the exercise of wise judicial discretion in deciding who should get the benefit of retroactive implementation of the 2014 "Drugs Minus Two" Amendment explains why recidivism rates were relative low for those defendants who received reduced sentences. Among other benefits of this conclusion, it should make Congress and the USSC ever more confident that they can safely (and should as a matter of fairness and justice) make any any all reduced sentences fully retroactive (subject to discretionary judicial review upon implementation).

Two thoughtful new commentaries on the role of prosecutors in criminal justice reform

Anyone who understands criminal justice systems knows the critical importance of the work of prosecutors, and these two new commentaries speak in thoughtful ways to their work: 

"The False Choice Between ‘Progressive’ and ‘Old-Fashioned’ Prosecutors" by Marc Levin

Excerpt: "Overcoming the failures of the past does not require being “progressive,” but rather an approach to prosecution that draws at least as much from traditionally conservative priorities such as limiting government and measuring results.  Fulfilling the unique obligation of prosecutors to do justice for victims, communities, and defendants should not imply a political agenda.  Instead, it should depend on gathering and analyzing data, being transparent with the public, and collaborating with partners to provide a full spectrum of responses to crime so that liberty is limited only to the degree needed to protect public safety.

 

"Want to Reform the Criminal Justice System? Focus on Prosecutors" by Joyce White Vance

Excerpt: "Prosecutors’ offices are not factories that produce widgets, and their success should not be assessed based on the number of cases they indict or convictions they obtain, nor the speed with which they obtain them.  Instead, prosecutorial decisions in both the federal and state systems should be the product of critical review that determines whether a case merits indictment and the investigation was sound.  Careful, objective review at each stage in prosecution, from charging to sentencing to post-conviction review, must be an intrinsic part of the culture.  A prosecutor’s job is about doing justice, not getting convictions. If prosecutors take the lead at getting it right, the rest of the system will follow."

Highlighting just one way that, even after the FIRST STEP Act, "Justice Still Eludes Crack Offenders"

Sarah E. Ryan has this notable new Crime Report commentary headlined simply "Why Justice Still Eludes Crack Offenders." I recommend the whole piece, and here are excerpts:

In early 2007, Carl Smith sold 1.69 grams of crack, less than half a teaspoon.  He also sold a teaspoon of powder cocaine.  A New Hampshire federal judge sentenced him to seventeen-and-a-half years imprisonment, the lowest end of the sentencing guidelines recommendation.

Last spring, Smith sought a sentence reduction under the First Step Act.  The district court denied the request because he was convicted under a statutory subsection unaffected by the new law. In essence, he had sold too little crack to go free.  According to an early 2020 analysis by the U.S. Sentencing Commission, the New Hampshire district courts granted just four sentence reductions under the First Step Act.  The district of Rhode Island granted four times more reductions; the district of Connecticut granted five times as many.

Nationally, the average sentence reduction was 71 months.  As a result, many defendants had served their time and could be released from incarceration.  But not Carl Smith. He remained locked up during a pandemic.  He appealed, arguing that the First Step Act covered his conviction.

After analyzing more than 500 First Step Act cases, including 90 relevant circuit court opinions, I know two things: this area of law remains in disarray and the circuit courts have largely dodged the tough issues.  They remain complicit in a decades-old mass incarceration scheme.

The now-familiar history of the crack laws omits one key fact: Congress knew early on that the drug laws were disproportionately affecting Black defendants.... In 1995, the Sentencing Commission told Congress that Black defendants accounted for nearly 90 percent of crack cocaine convictions and that most of their customers were white.  In 1996, the Bureau of Justice Statistics (BJS) reported the changing nature of the federal prison population using bold-faced sub-headers such as: “An increasing percentage of the Nation’s prisoners are black or Hispanic.”  In 1999, the BJS reported that the length of federal prison sentences had increased 40 percent. 

By the mid-1990s, lawmakers understood that dealers like Carl Smith were serving prison terms usually reserved for second-degree murder, or intentional murder demonstrating an extreme indifference to human life.  Yet Congress provided no relief, for decades.

In 2010, Congress raised the quantity necessary for future statutory minimum sentences in the Fair Sentencing Act; the law did not help defendants sentenced at the height of the drug war.  A few thousand people remained incarcerated under the old crack laws.  Their only hope was an historic reform amounting to an admission of Congressional guilt. The First Step Act was that law.  A bipartisan coalition heralded the First Step Act as the end of the draconian drug laws.  The Act gave sitting judges the authority to reopen the old crack cases and impose more appropriate sentences.... The intent of the law was clear, but some judges wavered.

There are two plausible ways to read the resentencing section — section 404 — of the First Step Act: as a small fix to the Fair Sentencing Act of 2010 or a broad mandate to rectify thousands of unjust sentences.  The broad reading is historically, legally and morally correct.  But hundreds of hearings in, the nation’s district courts remain divided on the law’s most basic tenets, like which defendants can be resentenced or what Section 404 empowers judges to do.

Some judges apply Section 404 narrowly.  A subset dismiss cases involving too little or too much crack without a review of the other facts.  Still others review all cases implicating a Fair Sentencing Act statute, but only to perform a new mathematical calculation.  They do not consider a defendant’s post-sentencing conduct or intervening changes in the law, even favorable state and federal supreme court rulings.  Their narrow interpretations of the law unnecessarily depress the length of sentence reductions.

Other judges construe Section 404 broadly.  They view the First Step Act as a gateway to relief.  Some find that they can revisit the sentences of small-time dealers or inmates serving hybrid sentences for interconnected drug and weapons crimes.  Some believe that they may consider a defendant’s good conduct, prison coursework and recent high court rulings.  Broad-view judges find that Congress empowered them to mitigate the damage of the old crack laws.  Their proof? The text of the law, including the word “impose” as a mandate to issue an independent sentence — and the testimony of a dozen or more senators, of both parties, characterizing the First Step Act as redress for the old drug laws.

Recently, the First Circuit adopted a broad view in Carl Smith’s case [opinion here]. That appellate opinion is reason for hope that the circuit courts will raze the remains of the old crack laws.  This summer, the appellate courts should adopt a broad reading of the First Step Act.  That reading should require sitting judges to issue meaningful sentence reductions, including ‘timed served’ in many cases.

And, it should hold sitting judges accountable for the continued incarceration of non-violent drug dealers who have served a decade or more.  Amidst global protests for freedom, liberation and justice for Black citizens, and a raging pandemic, the courts must fully enact the First Step Act as Congress intended.

I am pleased to see this new commentary calling out lower courts for not giving full effect to remedial aspects of the FIRST STEP Act.  But this analysis should not leave out the problematic role of the Justice Department.  I surmise that DOJ has consistently argued for narrow and limiting approaches to the application of Section 404.  Decades ago, DOJ could reasonably contended that its arguments for severe application of federal sentencing laws were consistent with congressional intent.  Now, DOJ arguments for severe application of federal sentencing laws often clearly fly in the face of congressional intent.

New BREATHE Act proposes, among lots and lots of reforms, eliminating federal mandatory minimums and life sentences

As reported in this new AP piece, headlined "Movement for Black Lives seeks sweeping legislative changes," a big new federal criminal justice reform bill includes some big new ideas for sentencing reform. Here are some of the details:

Proposed federal legislation that would radically transform the nation’s criminal justice system through such changes as eliminating agencies like the Drug Enforcement Administration and the use of surveillance technology is set to be unveiled Tuesday by the Movement for Black Lives.

Dubbed the BREATHE Act, the legislation is the culmination of a project led by the policy table of the Movement for Black Lives, a coalition of more than 150 organizations.  It comes at an unprecedented moment of national reckoning around police brutality and systemic racism that has spurred global protests and cries for change after several high-profile killings of Black Americans, including George Floyd....

The legislation was first shared with The Associated Press, and is scheduled to be revealed in a Tuesday press conference that is slated to include an appearance by singer John Legend.  The proposed changes are sweeping and likely to receive robust pushback from lawmakers who perceive the legislation as too radical.

University of Michigan professor and criminal justice expert Heather Ann Thompson acknowledged the uphill battle, but noted that that the legislation is being introduced at a highly opportune time.  “I think those programs that they’re suggesting eliminating only look radical if we really ignore the fact that there has been tremendous pressure to meaningfully reform this criminal justice system,” said Thompson, author of “Blood in the Water.”...

No members of Congress have yet said they plan to introduce the bill, but it has won early support among some of the more progressive lawmakers, including Ayanna Pressley and Rashida Tlaib, who also are due to participate in the news conference.

The bill is broken into four sections, the first of which specifically would divest federal resources from incarceration and policing.  It is largely aimed at federal reforms because Congress can more easily regulate federal institutions and policy, as opposed to state institutions or private prison facilities.  The other sections lay out a detailed plan to achieve an equitable future, calling for sweeping changes that would eliminate federal programs and agencies “used to finance and expand” the U.S. criminal-legal system.

The elimination would target agencies such as the Immigration and Customs Enforcement, which has come under fire in recent years for its aggressive deportation efforts, and lesser-known programs such as Department of Defense 1033, which allows local law enforcement agencies to obtain excess military equipment.  The act, which also seeks to reduce the Department of Defense budget, would institute changes to the policing, pretrial detention, sentencing and prosecution practices...

It would establish the Neighborhood Demilitarization Program, which would collect and destroy all equipment like military-grade armored vehicles and weapons in the hands of local, state, and federal law enforcement agencies by 2022.  Federal law enforcement also would be unable to use facial-recognition technology, which many communities across the nation already have banned, along with drones and forms of electronic surveillance such as ankle-monitoring.

The bill would end life sentences, abolish all mandatory minimum sentencing laws and create a “time bound plan” to close all federal prisons and immigration detention centers....

The bill would direct Congress to establish a Community Public Safety Office that would conduct research on non-punitive, public safety-focused interventions that would be funded through new grants, and programs like a “Free Them All” Matching Grant Program offering a 50% federal match for projected savings when states and communities close detention facilities, local jails, and state or youth prisons.

According to the document, it also would bring about numerous changes for parents and children, such as removing police, school resource officers and other armed security and metal detectors from schools.

I suspect that there is little chance that this entire piece of legislation advances in Congress anytime soon, but there may well be a chance that some pieces of this big bill could get incorporated into other proposals. Even if just a statement of aspirations, this new bill is noteworthy and could prove to be quite significant.

Some summer criminal justice highlights from Marijuana Law, Policy & Reform

It has been far too long since I thought to do a round-up of posts of note from my blogging over at Marijuana Law, Policy & Reform, though that is certainly not because there has been any shortage of interesting COVID-19 or social justice issues arising these days at the intersection of marijuana policy and criminal justice policy.   Rather than try to do a comprehensive review, I will be content to stoplight some favorites with an emphasis on criminal-justice-related stories in this abridged list of posts of note from recent months at MLP&R:

• Is marijuana reform really a "Superweapon Biden Refuses to Use"?

• Reviewing direct democracy marijuana/drug reform initiatives as we celebrate America's birthday

• "Struggling Through the Pandemic: Cannabis Social Equity During Covid-19"

• "Understanding Social Equity"

• Is it growing clearer that marijuana reform is criminal justice reform and racial justice imperative ?

• "Retroactive Legality: Marijuana Convictions and Restorative Justice in an Era of Criminal Justice Reform"

• Timely reminders that marijuana reform is criminal justice reform ... especially when Black Lives Matter

• Noticing how marijuana reform now intersects with religious leaders

• "What’s the best minimum legal age for cannabis?"

• Nevada Gov announces plan to secure pardons for "tens of thousands of Nevadans previously convicted for possession of small amounts of marijuana"

• Notable new research and commentary on marijuana reforms and traffic fatalities

• "Why Marijuana Legalization Funds The Police"

• New research on racial disparities in traffic stops and searches highlights how marijuana reform reduces searches (but not racial disparities)

• Is anyone closely tracking state or national marijuana arrest data during this coronavirus era?  

• "Weeding Out Injustice: Amnesty for Pot Offenders"

• Terrific coverage at CCRC on "Legalizing marijuana and expunging records across the country"

• "States with recreational marijuana laws view the legislation as a success"

• In a post-COVID economy, will job creation and tax revenue from marijuana reform become irresistible?