Sentencing Law and Policy

"'They’re Taking My Stuff!' What You Need to Know about Seizure and Forfeiture"

The title of this post is the title of this new report by Dan Greenberg with the Competitive Enterprise Institute.  Here is its executive summary:

Law enforcement officers in the United States seize billions of dollars in cash and other personal property from members of the public every year.  Most of this seized property is eventually forfeited to state and federal governments.  These seizures and forfeitures rarely require proof of criminal conduct; rather, they often rest merely on the suspicion that the property in question is related to a crime.  As critics of these practices have noted, seizure and forfeiture sometimes result in confiscation of the property of innocent, law-abiding civilians.  Furthermore, because the proceeds of forfeiture typically go straight to law enforcement budgets, this creates perverse incentives that make it more likely that law enforcement officers and prosecutors might devote disproportionate effort to this endeavor.

This paper explains how seizure and forfeiture work.  More precisely, it contains an account of the relatively minimal legal protections that law-abiding civilians have against both seizure and forfeiture.  The paper also provides strategies that the law-abiding civilian can use to reduce the chance of having property seized while traveling.

Making the important (but insufficient) claim that jurors should "know what the penalties for a guilty verdict will be"

A couple of month ago, I flagged here the notable new article by Daniel Epps and William Ortman titled "The Informed Jury."  I was pleased to see that this week Epps and Ortman brought their work to the pages of the Washington Post via this notable commentary under the headline "Jurors don’t know what the penalties for a guilty verdict will be. They should."  Here are some extended excerpts (with a bit of commentary to follow):

The American criminal justice system asks jurors to do something extraordinary: They make decisions that have enormous consequences for their fellow citizens’ lives — depriving them of freedom for decades, for example — without knowing those consequences in advance.  That’s because most American jurisdictions follow a rule of jury ignorance, meaning that neither judges nor lawyers may tell jurors what punishment a defendant could receive if convicted....

Keeping juries ignorant, however, exacerbates one of the U.S. criminal justice system’s worst tendencies — its inclination to grow more punitive.  Evidence from both history and social scientific experiments suggest that jurors are less likely to convict if they know a defendant’s punishment could be extremely harsh.  The rule of jury ignorance eliminates an important check on the system.  If politicians thought juries would be less likely to convict when a sentence was severe, for instance, they would be less likely to pass draconian laws.

Replacing ignorant juries with informed ones therefore could be an important criminal justice reform.  As a general rule, then, we propose that judges should tell jurors the range of sentences, including the statutory maximum and any mandatory minimums, that a defendant would face upon conviction. (We make the case in a forthcoming article in the Vanderbilt Law Review.)...

The argument that juries should be informed about sentences should appeal to both liberal and conservative justices of an “originalist” bent — with liberals focusing on how such a reform would democratize the criminal justice system, and originalists focusing on the fact that the ignorant jury lacks a solid historical foundation.

Indeed, juries informed about punishment were quite familiar to the founding generation.  In the 18th century, both in Britain and its American colonies, jurors understood that by finding a defendant guilty of a less serious crime (“libidinous actions,” say) instead of a more serious one (adultery), they could spare them from a death sentence.  Often they did exactly that, even when it was obvious to all that the defendant was guilty of the more serious offense.  It was only in the 19th century — when prisons and incarceration replaced the death penalty as the leading form of criminal punishment — that judges undermined jurors’ opportunity to shape punishment by shielding them from any knowledge of it....

Under our proposal, jurors would know about the punishments that await defendants on the other side of a guilty verdict: Judges would spell out the minimum and maximum sentences as part of their instructions to the jury.... In rare cases, juries would acquit even clearly guilty defendants where they saw the punishment as unjust.

But the transformative potential of informed juries goes beyond what they’d do in individual cases. Informing juries about punishment would alter the incentives for three key actors in criminal justice: Defendants might be more willing to roll the dice at trial (counting on juries to see the unfairness of sentences); prosecutors might think twice before “overcharging” (to avoid losing more cases); and lawmakers might hesitate before enacting severe penalties (after seeing the preceding developments). Informed juries could not single-handedly end mass incarceration or racial disparities, but they could be a step in the right direction....

Informed juries would also be more democratic juries; we’d effectively be asking a group of citizens to authorize a punishment before a judge could impose it. While most criminal laws are enacted at the state or national level, criminal juries are typically drawn more locally, from cities or counties.  Even when members of the communities impacted the most by punitive criminal justice are shut out of decision-making by lawmakers, they can still have a powerful impact in the jury room — if they have the relevant information on which to act.  Such juries would also better honor the spirit of the Constitution’s guarantee of a jury trial than the juries we have today.  Criminal juries were intended by the founders to be powerful checks on state power over criminal punishment; they weren’t supposed to just be narrow fact-finders.

How to bring this reform about?  Legislatures could direct courts to inform jurors about sentencing. Or courts could, on their own accord, reverse the wrong turn they made on juries more than a century ago. (Several federal court judges have expressed frustration over jury ignorance in recent years.)  By giving jurors the important power to determine the fate of those accused of crime, our system places a tremendous amount of trust in the judgment of ordinary people. We should trust juries with information that is critical to their making the soundest, most just decisions possible.

Long-time readers will not be surprised that I support this proposal.  Ever since being deeply moved by Justice Stevens' opinion in Apprendi and Justice Scalia's opinion in Blakely, I have been a avid supporter of having juries play a greater role in our criminal justice systems. (I even wrote an article some years ago making an originalist (and modern) argument that juries should be involved in federal habeas decision-making.) 

But I do not think it is enough to just have juries informed about sentencing possibilities, I think they should also have a direct role in sentencing decision-making.  Specifically, in order to better advance many of the sound goals that Epps and Ortman champion, I think citizen jurors, at least in the federal system, should be authorized and encouraged to provide sentencing advice to federal judges somewhat akin to how the federal sentencing guidelines now provide sentencing advice to federal judges.  That is, I would like to see citizen jurors provide a suggested sentencing range to federal judges, but that range would be advisory and serve as just one factor for the sentencing judge's consideration along with the other 3553(a) factors. 

Problematically, because roughly 95% of all criminal cases are resolved by pleas, informing jurors at a traditional trial only impacts a handful of cases.  I think Epps and Ortman are right that all other other actors in our criminal justice system will be impacted by informed jurors, but I am not sure the impact will always be significant (or positive).  But my vision of advisory federal sentencing juries includes the possibility of making them available in all cases even if the defendant chooses to accept guilt and plead guilty.  Of course, the parties could still bargain around these juries (just as now parties can sometimes bargain around the federal sentencing guidelines), but I suspect in a lot of challenging and important cases some or all of the parties would see the benefit of citizen juror involvement in making a suggested sentencing recommendation.

Second Texas inmate gets execution stay based on religion claim SCOTUS considering in Ramirez

As reported in this post, the Supreme Court last week stayed the execution of John Ramirez and granted certiorari to consider Ramirez’s request that his pastor be allowed to physically touch him and audibly pray in the execution chamber while Ramirez is put to death by the state of Texas.  In this follow-up post, titled "A short de facto execution moratorium?: could other condemned inmates secure a stay until SCOTUS decides new Ramirez case on religious liberty?", I wondered aloud if the SCOTUS cert grant in Ramirez could produce a short de facto execution moratorium based on other death row inmates making a religious liberty claim like Ramirez’s request.

This new AP piece, headlined "Judge delays another Texas execution over religious freedom claims," reports that at least one other Texas inmate has secured an execution stay on the basis of Ramirez.  Here are the details:

Another Texas inmate has had his execution delayed over claims the state is violating his religious freedom by not letting his spiritual adviser lay hands on him at the time of his lethal injection.

Ruben Gutierrez was set to be executed on Oct. 27 for fatally stabbing an 85-year-old Brownsville woman in 1998.  But a judge on Wednesday granted a request by the Cameron County District Attorney’s Office to vacate the execution date. Prosecutors said the U.S. Supreme Court’s upcoming review of similar religious freedom issues made by another inmate, John Henry Ramirez, whose execution the high court delayed last week, will impact Gutierrez’s case.

“As the Ramirez matter may be dispositive of any issue related to Gutierrez’s religious liberty claim, it is in the best interest of the state, the family of the victim of Gutierrez’s crimes, that his execution be delayed,” prosecutors said in a motion filed Tuesday.

Gutierrez was previously an hour away from execution in June 2020 when the Supreme Court granted him a stay because his spiritual adviser was not allowed to accompany him in the death chamber.

Last month, Gutierrez’s attorneys filed a complaint in federal court alleging the Texas Department of Criminal Justice was violating his right to practice his religion by denying his request to have his priest touch his shoulder, pray out loud and perform last rites when he was executed.

Gutierrez, 44, said that these three things need to be done “to ensure my path to the afterlife,” according to his complaint.  His attorneys cited the Constitution’s First Amendment and a federal statute that protects an inmate’s religious rights. Ramirez made similar claims when he was granted a stay.

The Supreme Court has dealt with the presence of spiritual advisers in the death chamber in recent years but has not made a definitive ruling on the issue.  That could change after it hears oral arguments in Ramirez’s case on Nov. 1.

Prior related posts:

• SCOTUS stays Texas execution and grants cert on death row inmate's request for pastor's touch during execution 
• A short de facto execution moratorium?: could other condemned inmates secure a stay until SCOTUS decides new Ramirez case on religious liberty? 

US Sentencing Commission releases FY 2021 third quarter sentencing data showing COVID's continued (but reduced) impact on federal sentencings

I just noticed that the US Sentencing Commission this week published here its latest quarterly data report which is described as a "3rd Quarter Release, Preliminary Fiscal Year 2021 Data, Through June 30, 2021."  These new data provide another official accounting of how COVID challenges continued to reduce the usual total number of federal sentences imposed, though in the latest quarter we are seeing a return almost to pre-pandemic norms. 

Specifically, as reflected in Figure 2, in pre-pandemic years, quarterly cases sentenced generally averaged around 17,000 to 19,000.  But in the three quarters closing out 2020, amid the worst early periods of the pandemic, there were only between about 12,000 and 13,000 cases being sentenced each quarter.  In the most recent quarter report, which ran from April 1 to June 30, 2021, about 15,000 cases were sentenced in federal court.  Figure 2 also shows that major declines in the total number of immigration cases sentenced are what primarily accounts for the decrease in overall federal cases sentenced.  For the other big federal case categories -- Drug Trafficking, Firearms and Economic Offenses -- the total number of cases sentenced in recent quarters are not off that much from recent historical norms.

Consistent with what I noted in this prior post about pandemic era USSC data, these data show an interesting jump in the percentage of below-guideline variances granted in the last four quarters (as detailed in Figures 3 and 4).  But I remain unsure if these data reflect significantly different behaviors by sentencing judges over the last year or is just primarily a product of the altered mix of cases now that the number of immigration cases being sentenced has declined dramatically.

Prior recent related post:

• US Sentencing Commission releases FY 2021 first quarter sentencing data showing COVID's continued impact on federal sentencings (and USSC data) 

"Punishment and the Body"

The title of this post is the title of this notable new article authored by Christopher Belshaw that I just saw in the new Journal of Controversial Ideas.  Here is its abstract:

Suppose we accept that punishment can be legitimate.  What form should it take?  Many of us believe that it can be acceptable to fine or imprison someone, but that capital punishment, along with corporal punishment in its various manifestations, is wholly unacceptable.  I suggest that it is hard to account for or justify this distinction.  But granting that resistance to these latter forms is unlikely to be dislodged, and granting too that imprisonment in particular is hardly problem-free, it is worth considering whether there might be alternatives.  And I argue here that we should consider enforced coma as a procedure having many advantages over the more familiar methods of delivering a penalty.  Of course, there are disadvantages also.  The aim isn’t to offer a detailed and practical solution to the problem of crime, but to explore some of the presumptions and principles involved in our thinking about punishment.

Making the case for a ceiling on the trial penalty

Marc Levin has this notable new commentary on plea practices and the trial penalty over at The Crime Report under the headline "‘Planning for Losing’: A Lesson on Justice Reform from Afghanistan." I recommend the piece in full, and here is a taste:

Akin to a peace deal in the American justice system, plea agreements enable defendants to avoid the worst possible scenario in exchange for waiving their right to a battle at trial.  However, the current approach to these deals means a defendant who does not concede defeat upfront can obtain no assurance regarding their sentence if convicted.

This dynamic has led to a disparity or “trial penalty” that is so pronounced that, in addition to expending the processing of the guilty, it effectively coerces many innocent defendants to plead guilty.

A National Association of Criminal Defense Lawyers report, for example, found that the average sentence for fraud defendants who went to trial in 2015 was three times higher than the sentence for those who pleaded guilty; for defendants charged with burglary and embezzlement, the sentence at trial was almost eight times higher.

Indeed, one simulation suggests that more than half of participants in an experiment would be willing to confess to a crime they didn’t commit in exchange for a significantly lower sentence. Some 15 percent of DNA exonerations, which generally involve charges for the most serious crimes, involve those who pleaded guilty....

The trial penalty that coaxes both the guilty and innocent to enter pleas is exacerbated by mandatory minimum statutes, which trigger automatic penalties if invoked by the prosecutor, as well as sentencing enhancements within the discretion of the prosecutor, such as whether to file notice with the court of a prior offense.

One potential solution for reining in the trial penalty is to require that any plea deal offered by prosecutors include a contingency guaranteeing that the sentence would be similar upon conviction at trial.  Under this scenario, defendants who exercise their right to go to trial might be entitled to a sentence that is the same or no more than 15 percent longer than the best offered deal.

Russell Covey, a professor at Georgia State University College of Law who has studied plea bargaining, has outlined how this sentence “ceiling” tied to the best plea offer could work in practice.  The late dean of Harvard Law School, James Vronberg, has also weighed in, arguing that a differential of 10 to 20 percent would be sufficient to entice defendants who are guilty to enter mutually beneficial plea agreements, and would not be coercive....

Whether in peace deals or plea bargaining, there is value in reaching an advance agreement on at least a range of ultimate outcomes that is contingent on one party’s defeat.  Yet current plea bargaining practice offers defendants an all-or-nothing proposition, requiring them to accept the risk of a far more severe sentence in order to pursue their constitutional right to trial and thereby test the evidence against them.

The imperative for ensuring a sentence bears some relationship to the plea offer is not just about avoiding people pleading guilty to crimes they didn’t commit.  It is also essential at the systemic level to achieve greater fairness and reduced sentencing disparities in the resolution of comparable cases.  Reining in the trial penalty will ensure the efficiency imperative does not sideline the pursuit of equity and due process.

Utah prosecutors urge repeal of death penalty as "grave defect that creates a liability for victims of violent crime, defendants' due process rights, and for the public good"

As reported in this local article from Utah, a "coalition of district attorneys and county prosecutors from around the state made noise on Tuesday, presenting a joint letter to be sent to Governor Spencer Cox and the State Legislature, asking for a repeal of the death penalty."  Here is more:

Citing six specific reasons, the four attorneys; Christina Sloan of Grand County, Margaret Olson of Summit County, David Leavitt of Utah County, and Sim Gill of Salt Lake County combined their influence to pen a recommendation to replace the death penalty sentence for aggravated murder to a term of 45 years to life....

The last person to be executed by the state in Utah was Ronnie Lee Gardner on June 18, 2010. His execution by firing squad (yes, that is still an option if lethal injection is held unconstitutional, unavailable, or if the convicted selected that method before May 3, 2004) was highly publicized at the time.  However, it came 26 years after his murder of an attorney during an escape attempt while being transported to a hearing for a separate robbery and murder.

Following his death sentence, which was given in October 1985, Gardner’s case was trapped in a series of appeals and defense motions that delayed his execution. Likely, the court and legal fees that were involved in finally carrying out his sentence were in the hundreds of thousands of dollars, if not more....  The coalition of attorneys in Utah referred to another study concluding that death penalty convictions cost taxpayers $1.12 million more than holding them for life. “A death sentence also carries the inevitable expenses of appeal.  The taxpayers must pay for both the prosecution and the defense in these hearings,” the letter reads....

Attempts have been made before to repeal the death penalty in Utah. In 2018, a death penalty amendment was introduced in the state legislature as House Bill 379.  The provisions were filed in the house but didn’t pass, even after a favorable recommendation from the Law Enforcement and Criminal Justice Committee.

This four-page prosecutor letter, styled as "An Open Letter to Governor Spencer Cox and the Utah State Legislature," is worth a full read. It starts and ends this way:

As attorneys and duly elected public prosecutors, we have sworn to support, obey, and defend the Constitution of the United States and the Constitution of Utah.  We also have a statutory duty to call to the State Legislature's attention any defect in the operation of the law.  In fulfillment of that oath and responsibility, we alert legislators and the people of a grave defect that creates a liability for victims of violent crime, defendants' due process rights, and for the public good. The defect which we urge the Legislature to repeal is the death penalty....

Doctors take the Hippocratic oath to do no harm to people when they become licensed.  The promise of an attorney is one to uphold and defend the Constitution.  Yet as prosecutors, our client is the public.  We file our cases in the name of the state of Utah.  We work to protect public safety, preserve the privacy and dignity of crime victims and to hold the guilty accountable.  Then, once a defendant is convicted, we seek to make victims whole and ensure that a defendant does not harm others again.  When someone commits a violent murder, nothing can repair the damage that person has caused.  No earthly court can order restored life to a murdered son or daughter or a healed heart to a crushed husband or wife.  However, we can ensure that the offender goes to prison.  If the Legislature repeals the death penalty, the available sentences for aggravated murder will be life without parole or 25 years to life.  Twenty-five years is far too short of a time for our most violent offenders.  Most people convicted of aggravated murder are young men.  We believe that justice requires the third optionof45 years to life to be made available. As prosecutors, we are not seeking mercy for the murderer but justice for the people.  A 45 to life sentence will mean that if an offender ever gets out, it will not be until the twilight of their lives.  That will protect the public and, to the extent possible, provide a small measure of justice for what that person has taken away.  Accordingly, we call on the Legislature to remedy this defect in the law by repealing the death penalty and creating a new possible alternative to life without parole of 45 years to life.

Convicted January 6 rioter, who (below-guideline) sentence of eight months in federal prison, seeks to undo his plea and sentence

This new Politico piece, fully headlined "First Jan. 6 rioter sentenced for a felony seeks to unwind plea deal; Paul Hodgkins is claiming through a new attorney that his signature on the deal was forged," reports on a notable post-sentencing effort by a notable defendant to undo his plea.  Here are just some of the interesting details:

The first Jan. 6 rioter sentenced for a felony charge began mounting a desperate bid Wednesday to unravel his plea agreement, claiming through a newly retained attorney that his signature on the deal was forged.  But the federal judge in the case, Randy Moss, expressed skepticism about the claim and noted it could even put Paul Hodgkins at legal risk, since he said under oath that he had reviewed and accepted the plea deal.

Hodgkins was charged with felony obstruction of Congress for breaching the Capitol and making his way to the floor of the Senate, where images show him donning gloves and rifling through some papers left in the evacuated room.  He pleaded guilty to the charge in June, while being represented by attorney Patrick Leduc, a JAG Reserve officer who later deployed to Qatar, where he is assisting with Afghan refugee rescue operations.

Moss sentenced Hodgkins in July to an eight-month jail term, far below the government’s recommended 16-month sentence, an acknowledgment that Hodgkins was among the first to accept responsibility for his role in the breach.  But Hodgkins’ new claim puts the matter into turmoil.  Hodgkins had asked Moss to delay his jail sentence, which is set to begin on Sept. 20, until January, giving him time to mount his effort to unwind the plea agreement.  But Moss rejected that attempt Wednesday afternoon, saying Hodgkins "has not demonstrated good cause for the requested four-month delay."

His new attorney, Carolyn Stewart, made the forgery allegation during a hearing called by Moss to address Hodgkins’ claim that Leduc provided ineffective counsel. She said she retained handwriting expert Curt Baggett to review the document and confirmed that it was not Hodgkins’ signature on the agreement.  Baggett, she said, would be willing to testify to it in court.  Stewart suggested that the allegedly forged signature was one of many irregularities tainting the case. “It’s mind boggling,” the defense attorney said, mentioning that she is attuned to such patterns because of her work as an intelligence analyst in Afghanistan. “These kinds of things keep popping up ... I’m floored.”

LeDuc said in an email to POLITICO that the claim of a forged signature was "insane" and that he painstakingly reviewed the deal with Hodgkins.  "I went over every single line of that plea agreement with Paul for about three hours to include the factual stipulations and he signed the thing in front of me and then came back and [re-signed] the other form as well," he said.  "Nothing happened in the case without Paul’s consent.  I don’t understand any of this this. It is insane and I am just so over it all."

In a phone interview, Baggett confirmed he conducted the analysis of Hodgkins’ handwriting at Stewart's request and indeed concluded the signature had been forged.  It’s unclear, though, what bearing the allegation has on Hodgkins’ guilt, since he entered the plea in an open court hearing and acknowledged his guilt for the alleged offenses, and Moss ran through many of the provisions of the deal with him.

The judge didn’t opine directly on the forgery allegation Wednesday, but he did note that the reason “a lot of time” was spent on the colloquy with Hodgkins is to “guard against” subsequent claims that the defendant didn’t understand the agreement or the consequences of pleading guilty.  Moss also warned Stewart that by claiming the signature was forged she could be suggesting that her client lied under oath in his statements at the plea hearing in June....

Stewart’s allegation appeared to rankle prosecutor Mona Sedky, who called the Florida-based lawyer a “relatively new” attorney and said some of the messages she’d gotten from the lawyer were unconventional.  “I’ve been tolerant of a lot of very strange and and unorthodox communications, for lack of a better word, and I’ve been not putting it in my pleadings and not raising it with the court out of respect to her,” the prosecutor said.

Prior related posts on Hodgkins:

• Second Capitol rioter reaches plea deal with reported guideline range of 15 to 21 months in prison
• Feds advocate for (mid-guideline) prison term of 18 months for first Jan 6 defendant due to be sentenced on felony charge 
• First Jan 6 rioter to be sentenced on felony charges gets (below-guideline) sentence of eight months in federal prison

"COVID-19 Relief and the Ordinary Inmate"

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

As scholars and advocates have lamented the deficiencies of remedies pre- and post-conviction for the extraordinary, the “ordinary” are not saddled with slow and deficient remedies -- they have none.  This Essay explores this absence of such relief for those unable to make an extraordinary claim during the COVID-19 public health crisis of 2020.  For the ordinary men, women, and children held in custody in 2020 and beyond, pretrial detention and sentencing laws make no exception in the face of a potentially fatal contagion or the public health crisis it creates.  Yet, the pandemic highlights the reality that systematic flaws -- carceral systems that permit mass infection within and outside their walls and release triggers premised on extraordinary circumstances or conditions -- are a sort of roulette of disaster for ordinary people in custody who lack access to pre- and post-conviction relief.  As problematic as these flaws are, they also represent an opportunity to reconsider the priorities that animate such relief and to question (or reimagine) systems that rebalance those priorities not just around the lives of the extraordinary, but around the lives of the ordinary. 

Yet more must-read new essays in Brennan Center's "Punitive Excess" series

I highlighted here back in April the terrific new essay series assembled by the Brennan Center for Justice under the title "Punitive Excess."  I have blogged about sets of new essays repeatedly (as linked below) because each new set of new essays are must reads (like all that come before).  Here is the latest trio:

• "The Prosecutor Problem" by Paul Butler

• "A Holistic Approach to Legal Advocacy" by Blake Strode

• "Surviving a Daily Storm" by Asia Johnson

Prior related posts:

• Brennan Center launches notable new essay series titled "Punitive Excess"
• More notable new essays in Brennan Center's "Punitive Excess" series
• Three more great new essays in Brennan Center's "Punitive Excess" series 
• Still more great new essays in Brennan Center's "Punitive Excess" series
• Another rounds of terrific new essays in Brennan Center's "Punitive Excess" series 

New letter with prominent signers urges Prez Biden to pardon all non-violent marijuana offenders

As reported in this press release, "150+ artists, athletes, producers, lawmakers, law enforcement officials, academics, business leaders, policy experts, reform advocates, and other professionals, signed a letter to U.S. President Joseph R. Biden, Jr. requesting a full, complete, and unconditional pardon to all persons subject to federal criminal or civil enforcement on the basis of a nonviolent marijuana offense."  (Disclosure: I am a signer of this letter.)  The full letter is available at this link, more about the effort is available here as well as from the press release:

The letter, which was spearheaded by the advocacy group The Weldon Project, includes signatures from celebrities such as Drake, Killer Mike, Deion Sanders, Al Harrington and Kevin Garnett.  Kazan will also participate in a live-streamed event today airing on Vimeo and moderated by Politico reporter Mona Zhang,  at 11:00 a.m. PT to discuss the letter and reinforce the case to provide clemency to all federal nonviolent marijuana offenders.

"The harms of incarceration are obvious, but the pains of federal marijuana convictions transcend prison walls, making it more difficult for someone to get a job, access affordable housing, and receive an education.  A conviction can forever limit an individual's constitutional rights and can put the American dream further out of reach for an entire family. Enough is enough.  No one should be locked up in federal prison for marijuana.  No one should continue to bear the scarlet letter of a federal conviction for marijuana offenses," the letter says, noting that three-quarters of the states have now abandoned the federal government's blanket criminal ban in favor of safe, regulated legal access to marijuana for adults and/or those with qualifying medical conditions.

The request to U.S. President Biden comes at a time when an overwhelming 68% of U.S. adults support the federal legalization of cannabis, and 1 in 3 Americans live in states where cannabis is legal for adults to use.  Thousands of individuals are currently incarcerated in the United States for nonviolent cannabis-related crimes, while countless others have had their rights and livelihoods stripped away because of prior arrests and sentences....

The letter to President Biden points out that a full pardon of federal marijuana offenders is consistent with the Constitution and past practices of presidents from both political parties.  "In 1974, President Ford established a program of conditional clemency for Selective Service Act violators.  In 1977, President Carter issued a categorical pardon to all Selective Service Act violators, closing the book on a costly and painful war.  President Biden has the power to do the same for the federal war on marijuana.  Through his act of constitutional grace, a general clemency will send a clear and powerful message that our country is truly taking a new course on criminal justice policy and practice."  In December of 2020, Angelos was fully pardoned by President Trump.

The stories of those who would be helped by a pardon are compelling: Drake, Meek Mill, Lil Baby, Killer Mike, and dozens of other hip-hop artists, for example, signed on in support of their friend and fellow rapper Ralo, who is facing 8 years for a nonviolent cannabis offense. "I appreciate my friends and peers in the hip-hop community, especially Drake, supporting my clemency because it's just not right that corporations are allowed to violate federal law and become millionaires while people like myself go to prison for years," Ralo said. "This is hypocrisy. I hope that Joe Biden honors his campaign promise and grants us clemency without delay, so I can return to my family and community."

NACDL produces notable new report on data-driven policing and racial bias in criminal justice system

As detailed in this new press release, "today, the National Association of Criminal Defense Lawyers (NACDL) released its latest report – Garbage In, Gospel Out: How Data-Driven Policing Technologies Entrench Historic Racism and ‘Tech-wash’ Bias in the Criminal Legal System."  Here is  more from the release:

As explained in the report, in recent years, police departments have been turning to and relying on rapidly developing data-driven policing technologies to surveil communities, track individuals and, purportedly, predict crime.  These technologies include algorithmic decision-making that departments claim can predict where crime is likely to occur, who will likely commit crime, and who will likely be a victim.  These algorithms are thus designed to interrogate massive troves of data gathered in a myriad of ways, using inputs that can range from police-generated crime reports to publicly available social media posts.  The outputs are then used to make critical decisions about patrols, or to make life-altering designations of individuals.

The purpose of this Report is to: (1) call attention to the rapid development and deployment of data-driven policing; (2) situate data-driven policing within the racialized historical context of policing and the criminal legal system; (3) make actionable recommendations that respond to the reality, enormity, and impact of data-driven policing; and (4) suggest strategies for defense lawyers in places where data-driven policing technology is employed.

“This Report will contribute profoundly to the national conversation regarding the inhumane, unfair, and destructive impact of racism and bias in policing,” said NACDL President Martín Antonio Sabelli.  “As the title of the Report suggests, data-driven policing technologies amplify the effects of systemic racism in policing by collecting data based on racist policing (including, for example, overpolicing of communities of color) and treating that garbage data as gospel for future policing decisions. ‘White-washing’ this biased data does nothing more than give a veneer of respectability and an appearance of neutrality while entrenching problematic practices rooted in racism.  The report calls for the abandonment of data-driven policing, wherever possible, and transparency and accountability where such practices have already become entrenched.”

“For more than two years, NACDL’s Task Force on Predictive Policing conducted research and interviews across the nation, leading to this report and the recommendations and suggested strategies set forth in it,” explained NACDL Task Force on Predictive Policing Chair Cynthia W. Roseberry.  “This report works to demystify the practice of data-driven policing to ensure that those engaged in the essential work of combatting systemic racism in the criminal legal system can operate with full information.  This report is not only an important addition to the body of scholarship in this area, it will also serve as a vital tool for advocates and defenders alike.”

The Report’s major topics include (1) the history of policing and the economics of punishment, (2) the history of surveillance and the rise of big data, (3) the landscape of data-driven policing, (4) critical analysis of data-driven policing, (5) task force recommendations on data-driven policing technologies, (6) an overview of state and local legislation, (7) an overview of police departments that have suspended or terminated contracts with data-driven policing programs, and more.

The full 100+-page report is available at this link.

Last call for "Donald Trump’s Theatre of Pardoning: What Did We Learn?"

Today is the day for this online panel, the first in a terrific series of online panels exploring in depth federal clemency powers.  As explained in this prior post, this series is jointly organized by the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law, the Collateral Consequences Resource Center, the Federal Sentencing Reporter, and the David F. and Constance B. Girard-diCarlo Center for Ethics, Integrity and Compliance at Villanova University Charles Widger School of Law. 

A whole lot of folks are doing great work putting this series together, and Margaret Love merits extra praise for her efforts and for helping to assemble writings on these timely topics in Volume 33, Issue 5 of the Federal Sentencing Reporter (which largely provides the foundation for these panels).  Here are more details about today's first panel:

Donald Trump’s Theatre of Pardoning: What Did We Learn?

Tuesday, September 14, 2021 | 12:30 – 2:00 p.m. EDT | Zoom  (Register here)

This panel will examine the unusual nature of President Donald Trump’s pardoning, looking at the grants themselves and the process that produced them.  Professors Bernadette Meyler and Frank Bowman, both scholars of the pardon power, will look to history for anything comparable to Trump’s use of the pardon power, and comment on its implications for the role that pardon has historically played in the U.S. justice system.  Amy Povah will share her experiences as someone who was personally involved in recommending cases to the White House at the end of the Trump Administration.  Kenneth Vogel will share his experiences as a journalist covering Trump’s pardons for the New York Times.  This panel will set the stage for the two subsequent panels about the future of presidential pardoning, by asking basic questions about the role of a regular pardon process and the result of it having been sidelined by Trump.  It will also consider whether Trump’s pardons were an aberration or the predictable result of trends in pardoning over the past thirty years.

Panelists:

Frank Bowman, Floyd R. Gibson Missouri Endowed Professor of Law, University of Missouri School of Law
Bernadette Meyler, Carl and Sheila Spaeth Professor of Law, Stanford Law School
Amy Povah, founder, CAN-DO Justice through Clemency
Kenneth Vogel, New York Times

Moderator:

Margaret Love, executive director, Collateral Consequences Resource Center and former U.S. Pardon Attorney

Action beginning on Biden clemency plan for some drug offenders in CARES home confinement cohort

As discussed in this post from late last month, there has been talk that Prez Biden might use his clemency powers to help ensure that some member of the CARES home confinement cohort does not have to return to prison after the pandemic.  This new Politico piece, headlined "Biden starts clemency process for inmates released due to Covid conditions," reports on new action on this front:

The Biden administration has begun asking former inmates confined at home because of the pandemic to formally submit commutation applications, criminal justice reform advocates and one inmate herself tell POLITICO.

Those who have been asked for the applications fall into a specific category: drug offenders released to home under the pandemic relief bill known as the CARES Act with four years or less on their sentences.  Neither the White House nor the Department of Justice clarified how many individuals have been asked for commutation applications or whether it would be expanding the universe of those it reached out to beyond that subset.  But it did confirm that the president was beginning to take action.

“The Biden-Harris Administration is working hard every single day to reform our justice system in order to strengthen families, boost our economy, and give Americans a chance at a better future," said White House spokesperson Andrew Bates. "As part of this, President Biden is deeply committed to reducing incarceration and helping people successfully reenter society.  As he has said, too many Americans are incarcerated -- and too many of those incarcerated are Black and Brown. That is why the President is exploring the use of his clemency power for individuals on CARES Act home confinement. The Administration will start the clemency process with a review of non-violent drug offenders on CARES Act home confinement with four years or less to serve.”

The requests from the administration are a concrete sign that the president is planning to use his clemency powers to solve what was shaping up to be one of the thornier criminal justice matters on his desk. The New York Times previously reported that such requests for applications would be coming....

“While we are excited to hear the Biden administration is actively seeking clemency petitions for non violent drug offenders, we pray he will not carve up CARES Act recipients into small subsets,” said Amy Povah, a former prisoner who has become a well known clemency advocate.  “No other president in history has been handed a 'dream come true' opportunity to easily identify a large group of individuals who have already been vetted and successfully integrated into society, many of whom are now gainfully employed, found housing, and are healing the family unit that was injured due to tough-on-crime sentencing policies that previous administrations have acknowledged are horribly unjust.”

Rachel Hanson, 37, was one of those paroled inmates who was at risk of being sent back to her federal facility.  She was 8.5 years into a 151 month sentence for charges of possession with intent to distribute an unspecified amount of cocaine.  She had been released from prison in August of 2021 under the CARES Act but kept in home confinement wearing an ankle monitor.  She was contacted by her case manager on Friday, who told her that her name was submitted by the Department of Justice for expedited clemency and that she needed to fill out her clemency packet right away.

She described the events of the past few days as a blur. “I was so surprised,” she said. “I didn’t expect it.  You hear about clemency. You know it happens to people but you don’t always see.” Hanson has three children, one of whom is a senior in high school. She has a job interview lined up for Tuesday for a production coordinator post at a welding factory.  She has to rush to get her clemency packet completed first....

Udi Ofer, the ACLU’s deputy national political director, said that while he was heartened that the administration was now acting, he faulted the administration for acting in a less than transparent way with advocates and advocacy groups in the criminal justice space.  He said he was troubled by the possibility that it was cleaving off CARES Act recipients into those deserving commutation and those who didn’t.  He noted that the Bureau of Prisons, in originally releasing inmates under the CARES Act, had already made a determination between those who posed a threat of violence and those who didn’t.  “On the other hand, through the anecdotal information we’re seeing, we are worried that the White House is viewing this issue too narrowly and unnecessarily restricting the category of people being asked to apply for clemency,” said Ofer.

Some advocates for clemency and other forms of sentence reduction also expressed concern that the Biden administration’s move essentially put it in the position of working from a list developed by the Bureau of Prisons during the Trump administration, in a process critics said lacked clear guidelines and transparency.  “It’s not clear how the Bureau of Prisons chose people for this home confinement program, which raises the question of whether it’s fair to give a special benefit to these folks not available to those who have filed clemency petitions sometimes years ago and have been patiently waiting,” said Margaret Love, who served as Justice Department pardon attorney under Presidents George H.W. Bush and Bill Clinton.

I am very pleased to hear of some tangible developments on this long-simmering front, though I would really now be eager to see some detailed accounting of how many members of the CARES home confinement cohort are drug offenders with four years or less on their sentence.  I am also not going to expect or assume that Prez Biden is going to grant clemency to a notable number of individuals until he actually grants clemency to a notable number of individuals.  And I hope this process might prove transparent along the way (as well as robust and just the start of  overdue clemency efforts).

I am now wondering about the expected specifics of clemency grants by Prez Biden for some members of the CARES home confinement cohort.  Through clemency, Prez Biden could shorten the prison terms of individuals so that they have no more time left to serve in prison or on home confinement.  I am assuming that is the working plan, though I think Prez Biden could also opt to just convert remaining prison terms into time to be served only and entirely on home confinement.  As I have highlighted in prior posts here and here, many member of the CARES home confinement cohort could be bringing sentence reduction motions under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A), and it is interesting to think how pending clemency talk and coming action might impact efforts to secure relief through the courts.

Interesting times.

Some of many prior related posts:

• Notable OLC opinion on "Home Confinement of Federal Prisoners After the COVID-19 Emergency" 
• Spotlighting effectiveness of home confinement under CARES Act and concerns about OLC memo disruption
• Effective review of (just some) issues surrounding home confinement for the Biden Justice Department
• FAMM urges AG Garland to prevent those on home confinement during pandemic from being returning to federal prison 
• Notably advocacy for Prez Biden to use his clemency power to ensure those released into home confinement need not return to prison 
• Why aren't there much stronger calls for CONGRESS to fix post-pandemic home confinement problems?
• Hoping grandmothers and others on home confinement get compassionate consideration
• New York Times reporting Biden Justice Department agrees with OLC memo stating prisoners transferred to home confinement must return to prison after pandemic ends
• Home confinement cohort at risk of being returned to federal prison garnering still more attention (but still little action) 
• Advocacy groups argue to DOJ that OLC home confinement memo is "incorrect" and should be rescinded 
• Senators Durbin and Booker write to Prez Biden requesting "immediate action" to prevent home confinement cohort from facing return to prison 
• Still more attention (and some helpful action) for the home confinement cohort
• Prez Biden reportedly considering, for home confinement cohort, clemency only for "nonviolent drug offenders with less than four years" left on sentence 

Rounding up perspectives looking back exactly a half-century after the massacre at Attica prison

Today marks exactly 50 years to the day from when New York state officers concluded a four-day prisoner uprising at Attica prison by storming the facility and killing 39 people and injuring nearly 100 more in a matter of minutes.  Capturing the full story of this prison uprising and its legacy cannot be done in a single blog post, but I can link to a lot of recent commentary and coverage that help provide some helpful perspectives:

"On 50th anniversary of Attica uprising, 4 essential reads on prisoners’ rights today"

"50 years after Attica: The unfinished business of our nation’s deadliest prison uprising"

"A half-century after Attica, prisoners’ demands have not been met"

"50 years after Attica uprising, families want apology"

"Attica prison riot hardened attitudes on incarceration but also planted seeds for reform"

"Looking Back At The 1971 Attica Uprising: Three Witnesses"

"‘Attica’ Film Review: Documentary Sets the Record Straight, 50 Years After the Uprising"

Federal prosecutors signal they will be seeking jail time for some Capitol riot misdemeanants

This post from a few months ago, headlined "Federal judges expressing some concern about lenient plea deals for some Capitol riot defendants," spotlighted some comments by some federal judges about whether federal prosecutors we not being sufficiently "tough" in their prosecutorial approach to some January 6 rioters.  This recent Politico article, headlined "Prosecutors: Jan. 6 defendants should expect jail time," suggests that federal prosecutors got the message as they are now talking up the prospect of seeking jail time even in some cases that are resolved through only misdemeanor charges.  Here are the details:

Federal prosecutors indicated Friday that those who breached the Capitol — even those charged only with misdemeanor offenses like parading — should expect to face jail time, not probation, for their role in the assault.  "Misdemeanor breaches of the Capitol on January 6, 2021 were not minor crimes," Assistant U.S. Attorney Kevin Birney wrote in a sentencing memo for Valerie Ehrke, one of more than 600 defendants charged for participating in the Capitol mob.  "A probationary sentence … should not necessarily become the default."

Birney, however, did recommend probation for Ehrke, describing her as "the rare case where a probationary sentence is appropriate."  Ehrke entered the Capitol for just one minute, exiting quickly after police began repelling the crowd. She committed no violence or property destruction, according to surveillance videos, and she voluntarily spoke to law enforcement, expressing remorse and ultimately becoming one of the first to plead guilty. All of those factors, Birney wrote in the filing, should result in a probation-only sentence.

Few of the Jan. 6 defendants have reached sentencing so far, with Paul Hodgkins — the first felony case to get to the sentencing stage — facing an eight-month jail term, the longest doled out by judges to date.  Anna Morgan Lloyd, the first Jan. 6 defendant sentenced, received 36 months of probation for a misdemeanor guilty plea from Judge Royce Lamberth.  Judge Thomas Hogan sentenced Jessica and Joshua Bustle, a couple charged with misdemeanor offenses for entering the Capitol, to home confinement and probation, in part because they are expecting the birth of a child soon.

Like prosecutors, though, Lamberth emphasized that other defendants shouldn't necessarily expect probation for participating in the breach of the Capitol. “I don’t want to create the impression that probation is the automatic outcome here because it’s not going to be," Lamberth said during Morgan-Lloyd's sentencing, a comment that Birney pointed to in his sentence recommendation for Ehrke.

Hogan, too, echoed that sentiment, telling the Bustles, "I think the presumption should be that these offenses were an attack on our democracy and that jail time is usually — should be expected."

None of the Jan. 6 defendants facing the most serious charges, including dozens accused of assaulting police officers and a growing contingent charged with conspiring to block the certification of President Joe Biden's victory in the 2020 election, have been sentenced yet. Prosecutors say misdemeanor defendants bear responsibility for some of the more egregious crimes committed that day, in part because the sheer size of the mob helped provide cover for the most dangerous participants in the attack.

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
• Harsh penal treatment of some Capitol rioters being criticized by notable progressive 
• New plea deals sets possible new precedent for resolving low-level Capitol riot prosecutions with single misdemeanor with 6 month jail maximum
• Notable education efforts prior to sentencing of minor participant in Capitol riot (who seems likely to get probation)
• Feds advocate for (mid-guideline) prison term of 18 months for first Jan 6 defendant due to be sentenced on felony charge 
• First Jan 6 rioter to be sentenced on felony charges gets (below-guideline) sentence of eight months in federal prison 
• 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

Reminders from many Govs to Prez Biden: it is always a good time for good clemency

I noted in this recent post that Prez Biden is now behind Prez Trump's clemency pace as we approach the end of the eighth month of Prez Biden's time in the Oval Office without him having yet used his clemency pen one single time.  As discussed in this post from late last month, there is talk that Prez Biden might use his clemency powers to help ensure that at least some member of the CARES home confinement cohort does not have to return to prison after the pandemic.   With summer now winding down, I thought it might be useful to highlight that at least some state governors understand that any time and every season can be a good time and season for clemency.  So here is a round-up of just some stories and commentaries about state clemency efforts from just this summer: 

From Arkansas: "Governor Asa Hutchinson Announces Intent to Grant Executive Clemency"

From Kansas: "Kelly Commutes 5 Prisoners' Sentences, Pardons 3 Others"

From Missouri: "Governor Parson Grants 12 Pardons, Commutes One Sentence"

From New Mexico: "Pardons for 19 New Mexico criminals, some who were violent"

From Oregon: "Pardons and commutations rising in Oregon"

From Virginia: "Northam was right to grant clemency to the Martinsville Seven. He should extend it to the living, too."

From Washington: "Inslee commutes more convictions to clear backlog left after Washington state’s drug-possession law struck down"

From Wisconsin: "Gov. Evers grants 71 pardons since May"

"Expanding Compassion Beyond the COVID-19 Pandemic"

The title of this post is the title of this paper now on SSRN authored by Katie Tinto and Jenny Roberts. Here is its abstract:

Compassionate relief matters.  It matters so that courts may account for tragically unforeseeable events, as when an illness or disability renders proper care impossible while a defendant remains incarcerated, or when family tragedy leaves an inmate the sole caretaker for an incapacitated partner or minor children.  It matters too, as present circumstances make clear, when public-health calamities threaten inmates with literal death sentences.  It matters even when no crisis looms, but simply when continued incarceration would be “greater than necessary” to achieve the ends of justice.

A short de facto execution moratorium?: could other condemned inmates secure a stay until SCOTUS decides new Ramirez case on religious liberty?

As highlighted in this post, the Supreme Court late last night stayed the execution of John Ramirez, who was scheduled to be killed by Texas via lethal injection on Wednesday night.  Importantly, the Justices not only postponed this execution, it also granted certiorari to allow the Court to fully consider on the merits Ramirez’s request that his pastor be allowed to physically touch him and audibly pray in the execution chamber while Ramirez is put to death. 

Notably, the brief SCOTUS order called for an expedited briefing schedule "that will allow the case to be argued in October or November 2021."  But, even if the argument were to take place in (late) October, it seems pretty unlikely that the Court's ultimate ruling in Ramirez v. Collier will be handed down before late November.  And, as detailed here, Texas has six additional executions scheduled for between now and November 17, 2021.  I cannot help but wonder if some or all of these condemned inmates on Texas death row will now request that a religious official be allowed to physically touch them and/or audibly pray in the execution chamber while they are put to death.  If any or all other Texas inmates on death row now make such a religious request and it is denied by prison officials (and/or if Alabama and Missouri inmates scheduled to be executed in October make similar requests), wouldn't the balance of equities support a short stay of these other scheduled executions until the Supreme Court rules in Ramirez?

Perhaps Texas and other state officials will seek to go forward with executions despite any new Ramirez-type requests by other condemned inmates for religious accommodations in the execution chamber by asserting that any new request is not made in good faith and is only a last-minute (and too-late) effort to delay an execution.  But couldn't  an inmate respond, perhaps in good faith, that he did not even think such a religious accommodation was possible until John Ramirez litigated this issue and the Supreme Court decided to take it seriously.  I sense lower courts might be particularly wary of trying to judge whether a dying inmate's religious request is sincere.  Moreover, the fact that SCOTUS has fast-tracked this case might also enable death row inmates and their counsel to argue that any execution postponement to resolve a requested Ramirez-type religious accommodations would likely last only a few months.

Am I missing something and/or am I crazy to think that the SCOTUS cert grant in Ramirez could produce a short de facto execution moratorium until the Justices issue an opinion in Ramirez? 

Rounding up another round of terrific new essays at Inquest

It has been a couple of weeks since I blogged about the great new website Inquest, which describes itself as "a forum for advancing bold ideas to end mass incarceration in the United States." But while I have been busy on other fronts, the site continues to churn out must-read essays and so I must do another post to spotlight these additional recently added pieces:

From David Alan Sklansky, "An American Invention: In the struggle to end mass incarceration, one must understand how the criminalization of violence is largely a modern creation."

From Marlon Peterson, "A Disruptive Innovation: Dismantling the machine that is mass incarceration requires all of us to think outside the box."

From Katherine Beckett, Forrest Stuart & Monica Bell, "From Crisis to Care: For alternative responses to policing to work and reduce the footprint of the criminal legal system, they must work in concert and holistically to address both immediate and longer-term social needs."

From Kristin Henning, "Fear of the Black Child: American society and its criminal legal system simply won’t let Black kids be kids."