Sentencing Law and Policy

"The Relevance of State Misconduct for Mitigating Individual Punishment"

The title of this post is the title of this book chapter authored by Thom Brooks now available via SSRN. Here is its abstract:

This chapter is focused on the possible relevance of state misconduct for mitigating individual sentences.  I argued that state misconduct can justify mitigation where a sufficient connection is made between the state misconduct and the offender in one of two ways.  First, this may take the form of systematic discrimination whether or not intentional where offenders are subjected to overly harsh punishments as a result of bias against their protected characteristics, like race.  Secondly, this may take the form of deliberate bad faith that may not be systematically applied, but no less problematic.

It is argued that state misconduct matters for mitigation as a form of provocation that impacts culpability.  This might be understood differently by different penal theories, whether desert-based or consequentialist.  Either way, this view of mitigation is coherent with a variety of very different penal theories even if each might justify mitigation in different ways.

This view rests on an important assumption that it applies to states that can and do acknowledge when they, as a state, have engaged in state misconduct.  State misconduct happens and too often.  But no view of mitigation is possible where it is impossible for the state to recognise its shortcomings.  And, where it is found, the state should be compelled to ensure such misconduct is addressed so it is no longer a factor.

Prez Biden issues 11 pardons and five commutations to persons "convicted of non-violent drug offenses"

As stated in this press release from the White House, "President Joseph R. Biden, Jr. is using his authority under the Constitution to advance equal justice under law by granting clemency to 16 deserving individuals who were convicted of non-violent drug offenses." The release provide the names and various details about all the clemency recipients, though more background information is given concerning the 11 pardon recipients, and the basic sentence information is provided for the five persons who recieived prison sentence commutations. In this document, titled "Statement from President Joe Biden on Clemency Actions," comes this explanation:

America is a Nation founded on the promise of second chances. During Second Chance Month, we reaffirm our commitment to rehabilitation and reentry for people returning to their communities post incarceration.  We also recommit to building a criminal justice system that lives up to those ideals and ensures that everyone receives equal justice under law. That is why today I am announcing steps I am taking to make this promise a reality.

I am using my clemency power to pardon 11 individuals and commute the sentences of 5 individuals who were convicted of non-violent drug offenses. Many of these individuals received disproportionately longer sentences than they would have under current law, policy, and practice. The pardon recipients have demonstrated their commitment to improving their lives and positively transforming their communities. The commutation recipients have shown that they are deserving of forgiveness and the chance at building a brighter future for themselves beyond prison walls.

Like my other clemency actions, these pardons and commutations reflect my overarching commitment to addressing racial disparities and improving public safety. While today’s announcement marks important and continued progress, my Administration will continue to review clemency petitions and deliver reforms in a manner that advances equal justice, supports rehabilitation and reentry, and provides meaningful second chances.

The Department of Justice also has this list of the clemencies. It looks like most, but not quite all, of these clemency recipients were convicted and sentenced for crack offenses, with some of the pardon recipient crimes going back in the 1990s.  Most of the commutations are for folks given decades of imprisonment in the 2010s.

"Degrees of difference: Do college credentials earned behind bars improve labor market outcomes?"

The title of this post is the title of this new Criminology article authored by Abby Ballou.  Here is its abstract:

It is widely held that providing postsecondary education programs to incarcerated individuals will improve postrelease labor market outcomes. Little research evidence exists, however, to support this view.  To test the effect of postsecondary carceral education credentials on employer perceptions of hireability, the current study uses a factorial design to survey a sample of employers nationwide (N = 2,538).  Employers were presented with résumés of fictional applicants applying to a job as a customer service representative at a large call center.  The résumés randomized education credentials earned while incarcerated. 

Results indicate that employers were significantly more willing to interview applicants with postsecondary education credentials relative to applicants with only a General Educational Development (GED) diploma.  Although Black applicants who had earned a sub-baccalaureate certificate saw improvements in hireability relative to GED holders, Black applicants who had earned a bachelor's degree did not.  In contrast, White applicants benefited both from sub-baccalaureate certificates and bachelor's degrees.  Results from a mediation analysis suggest that these credentials signal important information to employers about applicant attributes and that improved perceptions of applicant ability and likelihood to reoffend drive the overall effect.  Implications for future research and policy are explored.

Puzzling through the reach and application of the Eighth Amendment inspired by SCOTUS argument in Grants Pass case

I have listened to most of yesterday's Supreme Court oral argument in City of Grants Pass v. Johnson.  I share the basic sentiments reflected in the headlines of these press accounts of the SCOTUS argument:

From the New York Times, "Supreme Court Seems Poised to Uphold Local Bans on Homeless Encampments: A majority of the justices appeared skeptical of courts wading into the thorny policy questions around when local governments can punish people for sleeping and camping outdoors."

From NPR, "Supreme Court appears to side with an Oregon city's crackdown on homelessness"

From Vox, "The Supreme Court doesn’t seem eager to get involved with homelessness policy: Grants Pass v. Johnson is probably going to end badly for homeless people, but it’s not yet clear how broad the Court’s decision will be."

The subheadline of the Vox piece captures what I have been thinking about since listening to the Grants Pass argument.  It seems likely that there are at least six votes to reverse the Ninth Circuit's ruling based on the the Cruel and Unusual Punishment Clause of the Eighth Amendment.  But what will be the path for doing so? 

In this post a few weeks ago, I flagged commentary expressing concern that the Supreme Court might use the Grants Pass case as an opportunity to make a new and hard originalist turn in Eighth Amendment jurisprudence.  But I did not hear much during the oral argument to suggest that many Justices were eager to take up Eighth Amendment originalism as a means to resolve the case.  There surely could be some Eighth Amendment originalism in the Court's coming opinion, but I am now puzzling through other Eighth Amendment issues Grants Pass brings up that perhaps could provide other routes for the case's disposition.   Let me explain:

1. Civil versus criminal sanctions:  Justice Thomas, in the first questions of oral argument, asked the lawyer for the City of Grants Pass, "have we ever applied the Eighth Amendment to civil penalties?"  The answer given, which I believe is correct, was " Not the Cruel and Unusual Punishments Clause, no."  That answer was well phrased, because the Supreme Court has applied the Excessive Fines Clause of the Eighth Amendment to "civil" sanctions.   The courts below in this case held that the Fines Clause was implicated by the city's anti-camping ordinance AND that the ordinance was criminal becuase repeat violations could lead to jail time.   But person one technical (and unsatisfying?) way that the Supreme Court might rule for the city here would be to say that the anti-camping ordinance at issue cannot be facially unconstitutional under the Cruel and Unusual Punishment Clause of the Eighth Amendment when it only imposes a (modest? waivable?) fine for a first infraction.

2. Facial versus as-applied challenges:  I have never fully understood all the nuances around facial versus as-applied constitutional challenges, in part because it always seemed that Eighth Amendment claims must function as an as-applied challenge upon criminal enforcement.  Put another way, I have always assumed someone needs to first be subject to actual criminal prosecution with punishment threatened to litigate a Cruel and Unusual Punishment claim.  (A thought experiment: Could a doctor worried about new state laws criminalizing abortion bring an Eighth Amendment class-action challenge before being subject to any prosecution and even before he has performed any abortions?)  Then again, the courts below in this case held that the threat of enforcement was sufficient for standing, and arguably the categorical limits on application of the death penalty and LWOP for juveniles operate as a kind of class-wide, facial ruling about Eighth Amendment limits on statutory punishments.  Still, another technical (and unsatisfying?) way that the Supreme Court might rule for the city here would be to say that the anti-camping ordinance at issue cannot be facially challenged under the Cruel and Unusual Punishment Clause of the Eighth Amendment but only can be challenged in application on a case-by-case basis as it gets actually applied to different individuals.

3. Common-law defenses as constitutional defenses: The lawyer for the City of Grants Pass argued repeatedly that Oregon law recognizes a necessity defense which could be raised by homeless persons subject to the city's anti-camping ordinance.  Justice Gorsuch seemed particularly intrigued by this notion, but it is hard to sort through how this would doctrinally function as a matter of constitutional law.  Is just the availability of such a defense here, which is sure to be uncertain in application, enough to save the anti-camping ordinance from an otherwise winning Eighth Amendment claim?  Would such a ruling be tantamount to declaring that the Eighth Amendment makes a necessity defense sometimes constitutional required?  (Justice Gorush noted that it may make more sense to say a defense is required as a matter of due process, but he also recognized SCOTUS has rebuffed a due process claim regarding the insanity defense.)  Perhaps yet another technical (and unsatisfying?) way that the Supreme Court might rule for the city here would be to say that the anti-camping ordinance at issue is constitutional unless and until it is clear homeless persons are unable to advance an effective necessity defense in any criminal prosecution.   

Though some of these issues arose during oral argument, it is not clear any will be a focal point for the Court's coming disposition.  Many Justices seemed eager to make sure, in the words of Justice Kavanaugh, that "the federal courts aren't micromanaging homeless policy."  But, because the Justices are the only ones who define Eighth Amendment law, I hope they can at least avoid having this challening case create even more puzzling Cruel and Unusual Punishment jurisprudence.

US Sentencing Commission's new compassionate release data suggest (small) uptick in sentence reduction grants to close 2023

The US Sentencing Commission yesterday released this new compassionate release data report, which includes data on "the compassionate release motions filed with the courts and decided during the first quarter of fiscal year 2024."  (For the USSC, the first quarter of FY 2024 is actually the last three months of 2023.)   I noticed some interesting data points in this report comparing the sentence reduction grants and grant rates of the last three months of 2023 to prior months in 2023 and even earlier years.

Specifically, the months of October and December 2023 saw the highest grant rates for these motions (22.3% and 23% respectively) than for any month since the heart of the COVID pandemic in summer 2020.  Indeed, as Table 1 in the new USSC data shows, the only other month with a greater than 20% grant rate for these motions since August 2020 was in December 2022.  In addition, the total number of sentence reduction grants in Q1 of FY 2024 was also up as compared to recent prior quarters: there were 119 total grants in Q1 of 2024 compared to 81 in Q4 and 111 in Q3 and 114 in Q2 of FY 2023.

What explains the uptick in grants of compassionate release motions in Q1 of FY 2024?  I have two working hypotheses, one general and one 2023 specific: (1) maybe judges are slightly more likely in general to grant these sentence reductions toward the end of the year during the holiday season; and/or (2) maybe judges were influenced a bit by the new US Sentencing Commission policy statement governing compassionate release, § 1B1.13, which became formally effective on November 1, 2023.

Also, as I have noted before in this space, some other notable data points here come from the variations in grant rates from various circuits and districts.  Here is one example in this latest data: in the Second Circuit in this quarter, nine of 12 total resolved sentence reduction motions were granted; in the Third Circuitthis quarter only one of 23 motions were granted.

Critically, my eyeball assessment of these latest data (which reflect small numbers and lots of potential confounding factors) may just be an effort to encourage more systematic analysis of how federal district judges are continuing to use their sentence reduction authority.  Especially with COVID-based reasons likely no longer driving a large number of requests or grants for compassionate release, I hope we start to learn more about what facts and factors are providing most consequential in this form of federal judicial (re)sentencing decision-making.

"What Is a Prison?"

The title of this post is the title of this new book review authored by one of my Ohio State colleagues, Grace Li, now available via SSRN. Here is its abstract:

Tommie Shelby’s 2022 book The Idea of Prison Abolition sets out to compile and rearticulate the arguments for and against prison abolition -- using Angela Davis's works as the sole source texts.  In considering the arguments, he concludes that it is not necessary to abolish prisons and instead endorses reform.

In this book review, I argue that Shelby’s most helpful contribution in the book is not his analysis of whether prisons should be abolished but rather his elemental definition of incarceration.  To know what to abolish and when we have abolished it, we need to define what we mean by "prison."  I evaluate and extend his definition by culling some elements, such that the remaining elements are: "involuntary confinement," "in an enclosed space," "away from the general public;" and adding an element, "for a continuous amount of time."  I also add to these elements a list of harms that imprisonment inevitably causes.

Tennessee poised to become second state to authorize the death penalty for child rape since SCOTUS prohibition

As reported in this local piece from Tennessee, a "controversial bill that would allow the state to seek the death penalty for those convicted of rape of a child passed the House of Representatives Monday, clearing the final legislative hurdle before becoming law in Tennessee."  Here are the basics:

HB1663, by House Majority Leader William Lamberth (R-Portland), would allow for those convicted of rape or especially aggravated rape of a child in Tennessee to be sentenced to death.

The move received considerable pushback from Democrats, who argued the General Assembly was passing a blatantly unconstitutional law.  The bill was also not favored by Sen. Kerry Roberts, who said while he disagreed with the Supreme Court decisions that made and affirmed that the death penalty was considered cruel and unusual punishment, passing the law was not going to help overturn Kennedy v. Louisiana, as some of his colleagues might hope it would.

Despite attempts to amend the bill by Roberts, the Senate adopted the bill 24-5, with Sen. Todd Gardenhire (R-Chattanooga) joining Democrats opposed. The last stop for the bill in the legislative branch was the House Monday, April 22....  Ultimately, the bill passed on party lines, 77-19-1, with Clarksville Democrat Ronnie Glynn Present Not Voting.

The bill now heads to Gov. Bill Lee‘s desk for his signature. News 2 has reached out to the governor’s office for comment.

I expect that Gov Lee would be likely to sign this legislation (especially since it would seem any veto could be overridden). When this bill becomes law, Tennessee will join Florida in having a modern capital child rape statute despite the Supreme Court's ruling in Kennedy v. Louisiana, 554 U.S. 407 (2008), that the Eighth Amendment bars states from imposing the death penalty for the rape of a child.

Florida's capital child rape statute has yet to produce a death sentence that might become a new test case for the Kennedy ruling.  I predicted in this prior post that it might be many, many years before such a case gets to the Supreme Court.  More states having capital child rape laws on the books surely make a test case that much more likely.

Prior related posts:

• With new Florida law authorizing death penalty for child rape, how might SCOTUS get to reconsider Kennedy? 
• Possible Florida test case for new capital child rape statute now in the works 
• First capital child rape charge under new Florida law results in LWOP plea and sentence 

Rounding up (modest) press coverage of US Sentencing Commission's unanimous vote to limit use of acquitted conduct in guideline calculations

As reported here, last week the the US Sentencing Commission voted unanimous to promulgate a number of notable new guideline amendments, including most notably an amendment to preclude the use of acquitted conduct in guideline calculations.  (The promulgated amendments passed by the Commission are posted here).  Perhaps because acquitted conduct sentencing reform is something I consider symbolically meaningful (and overdue), I view this unanimous guideline amendment to be a pretty big deal.  But, perhaps unsurprisingly, the USSC's vote has garnered only modest press coverage to date.  Still, I figured it was worth a quick round-up:

From Bloomberg Law, "US Sentencing Commission Votes for Major Guideline Amendments"

From Law360, "Sentencing Commission Limits Acquitted Conduct Sentencing"

From Reason, "U.S. Sentencing Commission Restricts Federal Judges' Ability To Use Acquitted Conduct at Sentencing: The little-known but outrageous practice allowed judges to enhance defendants' sentences using conduct a jury acquitted them of.

From Reuters, "US panel prohibits judges from sentencing for 'acquitted conduct'"

Also, a Senator's press release:  "Durbin Applauds Sentencing Commission's Unanimous Vote To Prohibit Acquitted Conduct From Being Used In Sentencing Guidelines: The Announcement Comes After Durbin, Grassley Reintroduced Their Prohibiting Punishment Of Acquitted Conduct Act"

Sharp-eyed readers may recognize that the Reuters heading is a bit inaccurate becayse the USSC did not (and perhaps feels it cannot) entirely prohibit sentencing on the basis of acquitted conduct given applicable sentencing statutes.  Rather, the Commission voted unanimously to prohibit courts from considering acquitted conduct when calculating the applicable guidelines.  As noted in the press release from Senator Burbin's office, it may be still necessary for Congress to enact the Prohibiting Punishment Of Acquitted Conduct Act in order to completely preclude judges at sentencing from ever considering acquitted conduct.

Prior recent related post:

• US Sentencing Commission votes to promulgate guideline amendment to limit use of acquitted conduct in guideline calculations 

"Unpunishment Purposes"

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

Sentencing scholarship often begins by exploring the traditional purposes of punishment: deterrence, retribution, incapacitation, and rehabilitation.  However, little scholarship exists addressing how these four punishment purposes apply in the post-sentencing or resentencing context.  Further, abstract theories of sentencing can often seem sterile and disconnected from the realities of how violent, disproportionate, and dehumanizing the actual experience of incarceration is for many people, and they tend to downplay the impact of incarceration on the families and communities of those who are incarcerated.  Drawing on abolitionist principles centered around harm reduction, this Article reimagines the punishment purposes in a new way, with a decarcerative valence.

This Article attempts to reconceptualize the traditional purposes of punishment in order to meet the current historical moment, and it does so through an abolitionist lens.  For example, within the past decade, a number of state and federal retroactive relief mechanisms have allowed incarcerated people to petition courts for sentence reductions based on various legal theories.  But guidance provided to courts and other decisionmakers about how to exercise their discretionary decarceration authority is lacking.  Accordingly, this Article addresses head-on the need to develop a theory of resentencing and asks whether the four purposes of punishment require revision or augmentation to account for the sentence reduction context.

Further, this Article uses the federal second look context as a means to interrogate why blind adherence to the four punishment purposes has persisted despite their clear shortcomings.  In so doing, this Article seeks to shape second look advocacy and decision-making efforts, as well as the way in which sentencing is approached in the first instance, by both shifting away from the default of incarceration as punishment for crimes and utilizing a sentencing framework that looks at societal harm more expansively.

This Article argues that, by incorporating an abolition-based theory of harm prevention or reduction into the punishment purposes, judges may have more incentive to revisit old sentencing determinations and release more people from prison.  More than that, however, incorporating such a theory into a prospective sentencing may lead judges to rethink their reflexive reliance on the punishment purposes in the first instance, resulting in less punishment altogether.

Another call for papers: Federal Sentencing Reporter issue on "Booker at 20"

In this prior post last month, I set out the full call for papers for a forthcoming issue of the Federal Sentencing Reporter in which we plans to note (and celebrate? criticize?) the federal sentencing system's 20 years of functioning under the rules created in Booker.  I previously threatened to repost this call every few weeks until the deadline thoward the end of May, and this week's interesting guideline amendment actions by the US Sentencing Commission (basics here) has me eager to do so.  For this post, I will not give all the background about Booker and be content with these shortened specifics:

Nearly 20 years have passed since Booker, and the editors of the Federal Sentencing Reporter are eager to invite judges, lawyers, other sentencing practitioners, legal academics, and sentencing researchers, to share thoughts on “Booker at 20” for publication in an early 2025 FSR issue.  FSR commentaries for this issue could tackle foundational issues (such as the Court’s ruling in Booker and follow-up cases), discrete application issues (such as why certain advisory guidelines are more likely to be followed or ignored), institutional concerns (such as how Congress and the Commission and the Justice Department have responded to Booker), or any other topic of interest or concern to modern federal sentencing policy and practice.  FSR welcomes commentaries from all perspectives, including insights from sentencing experiences (with or without guidelines) in the states and other countries.  Everyone with an informed interest in sentencing law and practice is encouraged to submit a commentary.

FSR articles are typically brief — 2000 to 5000 words, though they can run longer — with relatively light use of citations.  The pieces are designed to be read by busy stakeholders, including lawyers, judges, scholars, and legislators (as well as, of course, members and staff of the US Sentencing Commission).  Priority will be given to drafts submitted by May 28, 2024, and later submissions will be considered as space permits.  Submissions should be sent electronically to [email protected] with a clear indication of the author and the author’s professional affiliation.

"The Relative Severity of Criminal Sentences in the January 6, 2021, Capitol Breach Cases"

The title of this post is the title of this new article authored by Sam Merchant which now has an abstract available up on SSRN.  I typically will not link to an SSRN posting unless and until the full draft article is available for download.  But this article's findings seem especially timely and notable; so here is its abstract:

Many observers claim that judges are imposing disproportionately lenient sentences on January 6, 2021, “Capitol Breach” offenders.  Some have even suggested a racial or political motivation for lighter sentences.  Comparative data on these sentences and offenders, presented here for the first time, refute this narrative. Individuals convicted of felonies related to the Capitol Breach appear to actually receive longer sentences than individuals convicted of the same crimes outside of the Capitol Breach context.

But sentences in Capitol Breach cases may indeed be “lenient” for a deeper, more structural reason — the current Federal Sentencing Guidelines do not adequately account for the severity of the conduct that occurred on January 6, 2021.  There is a qualitative difference between federal offenses and the same offenses committed in the context of the “treason spectrum.”  English and American legal traditions have historically viewed treason, rebellion, and subversive activities as “the worst crimes of all” because they are crimes against all citizens and threaten the constitutional order.  Yet no sentencing enhancement addresses the increased severity of conduct involving offenses that are on the treason spectrum.

Recognizing the increased seriousness of other conduct, Congress and the Sentencing Commission have enacted an array of enhancements to punish, incapacitate, and deter offenders whose conduct involves a dangerous weapon, body armor, or even use of a fake website during an offense.  This Article proposes a new sentencing enhancement in the Federal Sentencing Guidelines that properly accounts for the relative severity of conduct involving offenses on the treason spectrum.  To reaffirm a commitment to democratic values, to deter future subversive conduct, and ensure that the legal system is equipped to respond to the severity of subversive conduct, policymakers and judges should send clear signal that subversive activities are indeed among “the worst crimes of all.”

UPDATE: It now appears that the full paper is available for download at this SSRN link.

Rounding up some new and older marijuana record relief scholarship for 4/20 reading

I tend to find extreme affinity for 420 as a kind of marijuana holiday to be a bit silly.  But I am not so much of a scrooge that I will eschew a marijuana-themed post on this day.  Inspired in part by a great new paper from researchers at the Drug Enforcement and Policy Center (the listed first below), I figured I woud round up an array of pieces from SSRN focused on the intersection of marijuana reform and record relief.  I have only collected pieces on was able to find quickly on SSRN, so what is linked here is surely just an abridged accounting of work in this space:  

"Automatic Record Relief in Ohio: Recommendations for Minimizing Implementation Challenges and Maximizing Impact"

"Marijuana Legalization and Record Clearing in 2022"

"Marijuana Legalization and Expungement in Early 2021"

"Erasing Evidence of Historic Injustice: The Cannabis Criminal Records Expungement Paradox"

"Ensuring Marijuana Reform Is Effective Criminal Justice Reform"

"High Time for Criminal Justice Reform: Marijuana Expungement Statutes in States with Legalized or Decriminalized Marijuana Laws"

"Leveraging Marijuana Reform to Enhance Expungement Practices"

"A Randomization-based Analysis of the Effects of Electoral Pressure on Judges' Sentencing Decisions"

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

Until recently, studies have consistently found that judges sentence more harshly under electoral pressure.  We add to growing evidence complicating that account.  We analyze an open dataset of felony cases prosecuted in Cook County, the second-most populous county in the United States, between 2011 and 2018 and an original dataset of county judges’ electoral histories.  Unlike previous work in this area, we leverage the fact that some cases in the county are randomly assigned to judges to conduct explicitly causal analyses without conditional ignorability or functional form assumptions. We do not find strong evidence that judges in the county sentence more harshly in response to electoral pressure.

Notable new commentary makes case for federal Safer Supervision Act

Alice Marie Johnson has this notable Fox News commentary discussion reentry reform. The full headline provides a preview: "I spent 20 years in prison for one mistake. I know the system is broken even when you get out. Getting out of prison is only the beginning of a new set of problems with probation." Here are snippets from the lengthy piece:

Federal supervision policies are supposed to help people successfully return to their communities from prison. Unfortunately, in many cases, they erect barriers to successful reintegration. The bipartisan Safer Supervision Act would break down those barriers, reduce recidivism and improve public safety....

Federal supervised release was originally meant to be applied only in cases where it was necessary for public safety. Unfortunately, it is now imposed in nearly every case.  About 110,000 individuals are under federal supervised release — a 200% increase from three decades ago.

As a result, case officers have become overburdened, often managing up to 100 cases at once.  With probation officers overstretched, they cannot devote adequate time or resources to managing those who pose higher public safety risks, and this "mismatch" can lead to recidivism.

Unnecessary supervision also comes with roadblocks that make it harder for low-risk people who have paid their debts to society to reintegrate into their communities.  In 2020, more people saw their supervised release revoked due to technical violations — such as failing to make a meeting with a probation officer or traveling without permission — than for committing new crimes....

The Safer Supervision Act, which has broad support from law enforcement, legal experts and criminal justice groups across the political spectrum, would tackle many of the issues that are causing the current system to fail.

First, instead of implementing one-size-fits-all supervision sentences for everyone exiting the justice system, the Safer Supervision Act would require courts to conduct individualized assessments to determine if supervision is necessary, and if so, what restrictions are needed to protect public safety or better support successful reentry.  This would ensure that the people who need the most support receive it while allowing people who are at lower risk of recidivism to fully stretch their freedom legs.  It would also prevent probation officers from becoming overburdened with irrelevant caseloads.

Another critical piece of the bill is that it creates incentives for maintaining good conduct and reintegrating successfully into society.  The legislation establishes a presumption of early termination once someone has served half of their supervision period, has shown good conduct and complied with supervision terms, and has been assessed as a low public safety risk.  This will encourage more people to take the steps needed to succeed, whether that involves undergoing substance use disorder treatment, pursuing more education or maintaining steady employment.

Other provisions in the bill also focus on rehabilitation.  For example, it would give courts the option to send people on supervised release who are found in possession of illicit substances to treatment and rehabilitation programs instead of requiring a mandatory revocation that often comes with prison time.  This would only apply in cases of simple possession, not possession with the intent to distribute.

Lastly, the bill calls for a thorough report on federal post-release supervision and reentry services to ensure taxpayer dollars are being used efficiently and responsibly.

Too many of our federal supervision rules are counterproductive.  Not only do they keep too many people who have served their time in prison and are not a threat to public safety from living full lives, but they overburden our law enforcement officers and make us less safe.  The Safer Supervision Act will help change that, giving deserving people a real second chance while ensuring public safety.

Recapping (incompletely) the SCOTUS argument week that was ... and looking ahead

I flagged in this post at the start of this week that the Supreme Court had a quartet of scheduled oral arguments on criminal issues.  Based on press reports, it seems that defendants/individuals had a pretty good week in court taking on the arguments from  prosecutors/state actors.  But, of course, we cannot know for sure who is truly victorious until we get opinions in a few months.  Here are links to various press stories suggesting where the Court seemed to be leaning in these cases:

Snyder v. US: "Supreme Court Poised to Cut Back Scope of Anti-Corruption Law"

Chiaverini v. City of Napoleon, Ohio: "Justices Wary Of Strict Limit On Malicious Prosecution Cases"

Fischer v. US: "Supreme Court gives skeptical eye to key statute used to prosecute Jan. 6 rioters"

Thornell v. Jones: "High Court Weighs New Sentence for Arizona Death Row Inmate"

Next week's six scheduled Supreme Court arguments are not exclusively crminal matters, but there are two big crime-related cases in the bunch.  On Monday, the Court takes up Eighth Amendment issues in City of Grants Pass v. Johnson and Presidential immunity issues in Trump v. United States.  I am inclined to guess that the Justices will have some more affinity for arguments from prosecutors/state actor in these cases as compared to those cases heard this past week.  But we shall see.

Notable criminal justice counter-initiative looking likely to come before California voters

As reported in this local article, headlined "Backers say they have enough signatures to qualify Prop 47 rollback initiative," an interesting criminal justice ballot measure looks likely to come before California voters this fall.  Here are some of the details:

Critics who blame California’s 2014 Proposition 47 for runaway drug addiction, retail theft and urban squalor said Thursday they have collected enough signatures to qualify a November ballot measure that would restore penalties for serial thieves and treatment requirements for addicts.

Backers including owners of small businesses, social justice leaders and drug victim families gathered in San Francisco and Los Angeles to announce they have collected about 900,000 voter signatures, significantly more than the 546,651 required by April 23, and are turning them in to the Attorney General’s Office.

“Prop 47 achieved notable success in making California’s criminal justice system more equitable,” supporters of the proposed Homelessness, Drug Addiction and Theft Reduction Act. "However, it led to unintended consequences over the past decade — repeat and often organized retail theft, inner-city store closings, and difficulty convincing people to seek drug and mental health treatment — that can only be corrected by the voters at the ballot box with modest amendments to Prop 47.”

Prop 47 was among a series of laws and initiatives over the last 15 years aimed at depopulating overcrowded California prisons and addressing social justice concerns that have since been blamed for spurring brazen retail thefts, store closures and unchecked drug addiction. Promoted to voters as the “Safe Neighborhood and Schools Act,” Prop 47 reduced most drug possession and property crimes valued at $950 or less to misdemeanors and allowed for resentencing of those convicted of felonies for those offenses....

Prop 47 passed with nearly 60% voter approval.  An earlier effort to toughen up some of the penalties reduced by Prop 47 — Proposition 20 in 2020 — failed.  The impact on crime of Prop 47 continues to be furiously debated....  But supporters of the proposed November initiative say there’s no way to fix the state’s theft and drug problems without walking back parts of Prop 47....

Supporters stress that the proposed initiative would amend but not repeal Prop 47. It would make a third conviction for retail theft a felony, regardless of the amount stolen.  Before Prop 47, a second conviction would become a felony, but the 2014 initiative eliminated consequences for repeat offenses.  The proposed measure also would add penalties for dealing fentanyl, a cheap and deadly synthetic opioid, and provide incentives for convicted addicts to seek treatment.

"The Secret History of the Carceral State"

The title of this post is the title of this new article authored by Laura Appleman recently posted to SSRN. Here is its abstract:

Profits have long played a critical role in the administration of punishment in America.  This Article provides one of the first full-length historical accounts of how the pursuit of private profits has shaped the American carceral system over time. It argues that deriving profits from punishment has been a crucial and formative aspect of American carcerality since our earliest days.  Although most scholars have focused on convict leasing in the postbellum era as the first major example of private prison profiteering, this Article shows how a predatory for-profit system of punishment well predates this, originating in the colonial era. The story of American corrections, fully told, reveals four distinct transformative periods over the nearly five-century evolution of American incarceration, ultimately explaining the condition of today’s carceral state.

In addition to providing a broader and more complete historical perspective, this Article also explains how the most recent inroads of privatized, for-profit correctional entities have overtaken the contemporary workings of the carceral system, causing chaos, abuse, and death.  The Article details the mechanisms through which seeking profits from incarceration has led to objectively worse conditions and outcomes for the punished.  Given the now widespread privatization and corporate takeover of so many aspects of the carceral state, from healthcare to food services and beyond, it is well past time to question the role of “Big Capital.”  This Article shines a light on the forgotten history of the American carceral crisis, tracing the role of profits from colonial days to the 21st century.

Ugly stories of federal prison management continue as "rape club" FCI-Dublin gets shut down

I have blogged before about only some of the ugly details surrounding the Federal Correctional Institution (FCI) Dublin in California, where sexual abuse of incarcerated women was so rampant that the facitlity garnered the nickname "rape club." This week brought a number of new developments to the ugly stories of FCI-Dublin, which seem to be on-going and are partially summarized in this recent AP piece:

The planned closure of a federal women’s prison in California notorious for staff-on-inmate sexual abuse won’t occur before each inmate’s status has been reviewed, with an eye toward determining who will be transferred elsewhere or released, authorities say.  Following the Bureau of Prison’s sudden announcement Monday that FCI Dublin would be shut down, a judge ordered an accounting of the casework for all 605 women held at the main lockup and its adjacent minimum-security camp.

A special master recently assigned to oversee the troubled prison will review the casework and “ensure inmates are transferred to the correct location,” U.S. District Court Judge Yvonne Gonzalez Rogers wrote in her order.  “This includes whether an inmate should be released to a BOP facility, home confinement, or halfway house, or granted a compassionate release.”

Advocates have called for inmates to be freed from FCI Dublin, which they say is not only plagued by sexual abuse but also has hazardous mold, asbestos and inadequate health care.  They also worry that some of the safety concerns could persist at other women’s prisons. “There are survivors of sexual assault that are still at Dublin. And the idea that BOP could just transfer them to some other far-off place without care ... it’s just abhorrent to me,” said Susan Beaty, an attorney for inmate whistleblowers who exposed the abuse and corruption....

A 2021 Associated Press investigation exposed a “rape club” culture at the prison where a pattern of abuse and mismanagement went back years, even decades.  The Bureau of Prisons repeatedly promised to improve the culture and environment — but the decision to shutter the facility represented an extraordinary acknowledgment that reform efforts have failed.  “Despite these steps and resources, we have determined that FCI Dublin is not meeting expected standards and that the best course of action is to close the facility,” Bureau of Prisons Director Colette Peters said in a statement to AP.  “This decision is being made after ongoing evaluation of the effectiveness of those unprecedented steps and additional resources.”

Groups representing inmates and prison workers alike said the imminent closure shows that the bureau is more interested in avoiding accountability than stemming the problems....

Last August, eight FCI Dublin inmates sued the Bureau of Prisons, alleging the agency had failed to root out sexual abuse at the facility about 21 miles (35 kilometers) east of Oakland.  It is one of six women-only federal prisons and the only one west of the Rocky Mountains.  Lawyers for the plaintiffs said inmates continued to face retaliation for reporting abuse, including being put in solitary confinement and having belongings confiscated.  They said the civil litigation will continue.

Last month, the FBI again searched the prison and the Bureau of Prisons again shook up its leadership after a warden sent to help rehabilitate the facility was accused of retaliating against a whistleblower inmate.  Days later, a federal judge overseeing lawsuits against the prison, said she would appoint a special master to oversee the facility’s operations.

The AP investigation found a culture of abuse and cover-ups that had persisted for years. That reporting led to increased scrutiny from Congress and pledges from the Bureau of Prisons that it would fix problems and change the culture at the prison.  Since 2021, at least eight FCI Dublin employees have been charged with sexually abusing inmates. Five have pleaded guilty. Two were convicted at trial, including the former warden, Ray Garcia. Another case is pending.

"Redeemable Fines: Overcoming the Crisis of Overincarceration"

The title of this post is the title of this new paper authored by Gideon Parchomovsky and Alex Stein now available via SSRN.  Here is its abstract:

In this Essay, we introduce a new mechanism uniquely designed to achieve rehabilitation of offenders and improve the criminal justice system: the redeemable fine.  A redeemable fine is a monetary penalty that will be returned to the offender — in installments or, in exceptional cases, in one payment — over a certain period so long as she or he commits no further crimes.  Unlike traditional fines, redeemable fines can be structured in a myriad of ways to provide individually tailored optimal rehabilitative incentives for offenders.  First, the installment period of the repayment can be short (several months) or long (several years), depending on the characteristics of the offense and the offender. Second, there is the frequency of the payments.  The payment intervals can be long, short, intermediate or variable.  The sentencing judge will be able to order that the repayments will be made annually, every six months, every single month or, in exceptional cases, in one installment on the successful completion of the rehabilitation.  As with traditional fines, the redeemable fine’s amount will correlate with the seriousness of the offender’s misdeed.  For these and other reasons, introduction of redeemable fines can dramatically reduce the rates and the costs of incarceration and render the criminal justice system fairer and more humane, while providing meaningful incentives for offenders not to commit further offenses.

US Sentencing Commission votes to promulgate guideline amendment to limit use of acquitted conduct in guideline calculations

At a public meeting this afternoon, the US Sentencing Commission voted to promulgate a number of notable new guideline amendments, including perhaps most notably an amendment to preclude the consideration of acquitted conduct in guideline calculations.  The Commission's vote on this acquitted conduct amendment appeared to be unanimous, but then there seemed to be some dissention about whether to conduct a data analysis and seek public comment on whether to make this acquitted conduct amendment retroactive.  The retroactivity analysis for the acquitted conduct amendment did get majority support, and I will be very interested to see what the USSC's data shows as to how many persons are currently imprisoned as a result of acquitted conduct guideline enhancements.

A lot more got done by the USSC at its public meeting this afternoon, and I hope to update this post with some of the official announcements from the Commission about its work later this afternoon.

UPDATE:  Here is the full text of this press release that the US Sentencing Commission just posted to its website under the heading "Commission Votes Unanimously to Pass Package of Reforms
Including Limit on Use of Acquitted Conduct in Sentencing Guidelines":

The bipartisan United States Sentencing Commission voted unanimously today to prohibit conduct for which a person was acquitted in federal court from being used in calculating a sentence range under the federal guidelines. The Commission’s seven members also joined together to pass a range of additional reforms, including those that bring uniformity to sentencing for certain gun and financial crimes and provide a potential downward departure based on age. “The reforms passed today reflect a bipartisan commitment to creating a more effective and just sentencing system,” said Commission Chair Judge Carlton W. Reeves. Watch the public meeting.

“Not guilty means not guilty,” said Chair Reeves. “By enshrining this basic fact within the federal sentencing guidelines, the Commission is taking an important step to protect the credibility of our courts and criminal justice system.” This reform comes amid robust debate on acquitted conduct from across the country.  Last year, several Supreme Court Justices called for the Commission to address acquitted conduct, while a bipartisan group of legislators in Congress introduced a bill limiting the use of acquitted conduct in sentencing.

In addition to limiting the use of acquitted conduct, the Commission revised its policy statement on age, permitting judges to downward depart based on age if appropriate in light of today’s richer understanding of the science and data surrounding youthful individuals, including recognition that cognitive changes lasting into the mid-20s affect individual behavior, culpability and the age-crime curve.  The Commission also moved commentary regarding the definition of “loss” to the body of the fraud, theft, and property destruction guideline to ensure courts uniformly calculate loss amounts.  And the Commission addressed a circuit conflict over how to properly punish crimes involving weapons with altered or obliterated serial numbers.

These and all other amendments passed by the Commission today will be posted here.  The Commission will deliver amendments to Congress by May 1, 2024.  If Congress does not act to disapprove the changes, they will go into effect on November 1, 2024.