Sentencing Law and Policy

Exploring what Prez-elect Biden might (or might not) get done for criminal justice reforms

NBC News has this new piece discussing, mostly in vague terms, what criminal justice reform might look like under a Biden Administration. The piece is headlined "Biden was pilloried for his criminal justice record. During his presidency, advocates expect change," and here are excerpts:

Experts told NBC News that now as both political parties appear to have common ground on the issue and significant steps have been made over the past decade, a Biden administration needs to make criminal justice reform more than a talking point.

“The chief cornerstone has already been laid, the groundwork has already been done, the foundation has already been built.  The only thing that he has to go in and do is continue to capitalize off of the momentum,” said Louis L. Reed, the director of organizing and partnerships at #Cut50, a bipartisan criminal justice reform nonprofit.  “Biden needs to hit the ground running on legislation and executive action.”

The Biden transition team did not respond to a request for comment on their plans.  But as a presidential candidate, he proposed sweeping reforms, including ending private prisons, cash bail, and mandatory-minimum sentencing.  He has also been a vocal opponent of the death penalty and police reform.  He has floated, for example, tying federal funds given to police departments to diversity initiatives and community policing, among other areas — rebuffing calls from progressive activists to defund police departments....

Biden’s legislative hopes also hinge on the Democrats winning the majority in the Senate in January.  He has promised a flurry of executive orders on Day 1 in the White House to unwind a number of Trump administration policies and may opt to continue doing so if Republicans obstruct his legislative efforts.  But the effectiveness of executive orders can be limited when it comes to criminal justice reform, which would not affect state and local prisons.

Tackling police reform will be an especially delicate issue after a year in which the deaths of Black Americans at the hands of law enforcement prompted worldwide protests and national reckoning.  Balancing the concerns of police officers and progressive activists looking to slash their budgets and re-imagining policing is one illustration experts say will be one of the hurdles he could face. Biden during the campaign rejected calls to defund the police, angering some progressive activists.  At the same time, he also lost support from police unions, who largely supported Trump.

Adam Gelb, the founder of the Council on Criminal Justice, a bipartisan criminal justice nonprofit, is a former Senate Judiciary staffer who worked with Biden on the 1994 crime bill.  He said that he believes Biden’s promise to be a coalition builder is genuine but that he may not be fully prepared to restructure the nation’s sprawling criminal justice system.

“I don't think he sees crime control and justice as a zero-sum game, but will focus on policies that can produce win-wins,” he said, adding that Biden and Vice President-elect Kamala Harris recognize that "many of the policies of the 80s and 90s overshot the mark, and are now way out of step with public sentiment, as well as research about what actually works."...

Gelb said he believes Biden understands that there are social inequalities but does not fully grasp the extent to which the system itself is the root of the problem.  "My sense is that he understands that the criminal justice system is deeply flawed and needs to be fixed, but that he sees the system as a source of solutions, not a fundamental cause of the problems,” he said.  “And that means a balanced strengthening of the systems of enforcement, and prevention, and treatment, and corrections, and the courts."

A few of many prior related posts:

• Notable criminal justice reform recommendations from Biden-Sanders Unity Task Force 
• Can we be hopeful federal leaders will make deals to advance federal criminal justice reforms in the next Congress?
• Tomorrow can be today for some Biden-Sanders Unity Task Force criminal justice recommendations 
• Reviewing Criminal Justice Unity Task Force Recommendations: a new series to welcome a new President

Thankful the federal prison population is at lowest level in two decades

I am always thankful to have a good reason to express thanks, and this holiday period seems like a fitting time to be thankful about the federal prison population declining to modern lows.  Of course, it is sad that a global pandemic in part accounts for recent declines, but the COVID era was an accerant that continued positive trends which began after the federal prison population hit historic highs in 2013.

In 2013, the federal prison population reach a peak of around 220,000 total prisoners.  As we close out 2020, the latest BOP numbers at this webpage report "Total Federal Inmates" at only 154,125.  A 30% decline in the federal prison poplation in less than a decade strikes me as something to be thankful for, and the last time the federal prison population was this low was way back in the year 2000.  (That said, any celebration of positive federal carceral trends should be tempered the fact that BOP still reports that more than 30,000 federal prisoners are over age 50, and that nearly 50% of persons in federal prison are servng time for drug offenses despite widespread acknowledgement of the many failings of the war on drugs.)

The latest federal prison population numbers represents a small population decline from the numbers noted in this post last month, which suggests that there may still be small continued COVID-era federal prison population declines.  As noted in this post last month, the US Sentencing Commission released some early COVID-era sentencing data showing that the number of federal sentences imposed between April and June 2020 dropped about 40% from the usual rate.  I suspect the pace of federal sentencings increased in the summer and fall, but the latest surge of COVID cases might yet again impact federal criminal case processing.  

A few of many prior related posts:

• Federal prison population, thanks in part to the FIRST STEP Act, hits lowest level in over 15 years (from July 2019)
• Federal prison population, due seemingly to COVID responses, hits another modern low (which is still very high) (from April 2020)
• Federal prison population drops below 170,000 for first time in nearly two decades (from May 2020)
• "Total Federal Inmates," as reported by BOP, drops below 165,000 (from June 2020)
• Federal prison population, per BOP report of "Total Federal Inmates," drops below 160,000 (from July 2020)
• Federal prison population now down to 155,483 according to BOP reporting (from Sept 2020)
• Federal prison population, per BOP report of "Total Federal Inmates," drops below 155,000 (from Oct 2020)
• US Sentencing Commission releases data revealing COVID's impact on federal sentencings 

Prez Trump grants pardon to Michael Flynn ... are a lot more to come?

As reported here by NPR, "President Trump has pardoned his first national security adviser, Michael Flynn, who spent years enmeshed in an often bizarre legal war with the government that sprang from the Russia investigation."  Here is more about an unsuprising act of clemency:

Trump announced the news on Twitter as Americans prepared to observe the Thanksgiving holiday this week.

The pardon brings an end to a long-running legal odyssey for Flynn, who was the only member of the Trump administration to be charged as part of special counsel Robert Mueller's Russia investigation.

Flynn pleaded guilty in 2017 to lying to the FBI about his contacts with the Russian ambassador, and then cooperated extensively with prosecutors. But he ultimately reversed course and accused the government of trying to frame him. Flynn went to so far as to withdraw his first plea of guilty and substitute a second plea of not guilty, even though he'd acknowledged the underlying conduct that was against the law and been close to receiving a sentence.

The pardon drew condemnations from critics who've said Trump's actions to help his friends interfere with the justice system. House Intelligence Committee Chairman Adam Schiff, D-Calif., for example, who helped prosecute Trump at his impeachment, called the president's actions obviously corrupt.

Flynn, meanwhile, reacted on Twitter with a Bible verse alluding to a holy rescue.

Trump's action on Wednesday may open the door to possible clemency for other former Trump advisers who were indicted as part of the Russia investigation, including former campaign chairman Paul Manafort.

Meanwhile, this New York Times article, headlined "White House Weighs Pardon Blitz Before Trump’s Exit," highlights that I might have a lot of Trumpian clemency action to blog about in the coming weeks.  Here is how the piece gets started and some additional excerpts:

It’s not just Michael T. Flynn. The White House is weighing a wave of pardons and commutations by President Trump in his final weeks in office, prompting jockeying by a range of clemency seekers and their representatives, including more allies of Mr. Trump.

Among those hoping for pardons are two former Trump campaign advisers, Rick Gates and George Papadopoulos, who like Mr. Flynn, the former national security adviser who was pardoned on Wednesday by Mr. Trump, were convicted in cases stemming from the special counsel’s Russia investigation.

Alan Dershowitz, the law professor who represented Mr. Trump during his impeachment trial, is considering seeking clemency for two of his clients — a New Jersey man serving more than 20 years for defrauding investors, and a billionaire businessman convicted in what’s been called “one of North Carolina’s worst government corruption scandals.” Mr. Dershowitz said he recently discussed the pardon process with the White House.

But it is not just the well-connected and wealthy who could benefit from one of Mr. Trump’s final exercises of executive power, lawyers in contact with the administration said. Several groups that have pushed for a criminal justice overhaul are working with an ad hoc White House team under the direction of Jared Kushner, Mr. Trump’s son-in-law and adviser, with a goal of announcing as many as hundreds of commutations for offenders now in jail for crimes ranging from nonviolent drug convictions to mail fraud and money laundering.

“Lists of people are being circulated,” said Brandon Sample, a Vermont lawyer who specializes in presidential pardons and has submitted several names of people to be considered. Among them is Russell Bradley Marks, 57, who has been imprisoned after pleading guilty in 1992 on a cocaine-related conviction for which he was given a mandatory life sentence....

Lawyers say the White House is also focused on ways to use presidential clemency powers to further burnish Mr. Trump’s role in what is considered the most consequential criminal justice legislation in a generation, which reduced sentences for nonviolent offenders. A blitz of late pardons or commutations for federal crimes — over which presidents have unchecked power — is seen by some criminal justice reform activists as another way to build his record on that issue....

The planned clemency initiative, and the lobbying that has unfolded around it, has been hindered in some ways in recent weeks by Mr. Trump’s refusal to formally concede his loss to President-elect Joseph R. Biden Jr.

Potential pardon seekers and their representatives said in interviews that they were waiting to escalate their appeals until Mr. Trump conceded, or at least signaled that he had started to come to grips with the looming end of his presidency. Appealing for clemency before then, people involved warn, risks backfiring, because it could be seen as acknowledging a defeat that Mr. Trump has thus far refused to accept....

The effort to create a White House commutation program separate from the formal Justice Department office started last year after the 2018 passage of the First Step Act, which expanded an early release program and modified sentencing laws, including mandatory minimum sentences for nonviolent drug offenders. There are at least 13,700 people who have formally applied to the Justice Department for pardons that are listed as “pending.”

Representatives of inmates seeking sentence reductions have separately been sending the White House lists of names, typically focusing on people who received unusually long sentences for nonviolent crimes after declining to accept a plea agreement and others serving long sentences because of mandatory guidelines. “Each of these are sad, sad situations,” said Norman Reimer, the executive director of the National Association of Criminal Defense Lawyers. “They show massive injustice and over- sentencing, and we hope he will act on them.”

"Here's One Thing Republicans and Democrats Agree on: Criminal Justice Reform"

The title of this post is one headline that I have seen for this new New York Times article (which echoes some themes I have stressed in a few posts here and here from election week). I recommend the article in full, and here are some excerpts:

In a video presenting his closing argument for maintaining Republican dominance of the Senate, the majority leader, Mitch McConnell of Kentucky, chose three issues — tax cuts, judicial appointments and criminal justice reform.

Mr. McConnell had resisted bringing the First Step Act, which expanded release opportunities for federal prisoners, to the floor under former President Barack Obama and did so during the Trump administration only under extreme pressure.  Its passage firmly established the allure of reform and is now widely cited as President Trump’s most significant bipartisan achievement....

[C]riminal justice reform offers something for just about everyone: social justice crusaders who point to yawning racial disparities, fiscal conservatives who decry the extravagant cost of incarceration, libertarians who think the government has criminalized too many aspects of life and Christian groups who see virtue in mercy and redemption.

At the federal level, both parties have proposed police accountability bills.  Senator Lindsey Graham, the Republican chairman of the Judiciary Committee, has recently signaled that he is open to reinstating parole for federal prisoners, which was eliminated during the tough-on-crime 1980s.  President-elect Joseph R. Biden Jr. has promised to reduce incarceration and supports abolishing mandatory minimum sentences and expanding mental health and drug treatment.

Relatively few voters ranked the criminal justice system at the top of their list of concerns, even after the killing of George Floyd in May thrust policing into the national spotlight.  But patient work by advocates, buy-in from conservative groups and the United States’s position as a global leader in incarceration have gradually spread the message that the system is broken, and made fixing it a cause with broad appeal. 

A wide array of criminal justice measures did well on the ballot, including increasing police oversight, legalizing drugs and restoring voting rights to those with felony records.

Fewer Americans than ever believe the system is “not tough enough,” according to a recent Gallup poll.  And in a sign of how much attitudes have changed since lawmakers boasted of locking people up and throwing away the key, Mr. Trump and Mr. Biden sparred over who had let more people out of prison.

The fact that it is a niche issue may serve to increase its chances of breaking partisan gridlock....

The pandemic, in which prisons and jails have become some of the biggest viral hot spots, presents an opportunity for advocates, who hope that Covid-19 relief measures like expanded medical release and early parole will outlast the spread of the coronavirus.

Pandemic-related budget shortfalls represent another opportunity. The Texas Criminal Justice Coalition, a progressive group, has called its legislative agenda for next year “Spend Your Values, Cut Your Losses,” arguing that measures like lowering drug penalties and making it harder to revoke probation and parole will save millions of dollars....

Robert Blizzard, a Republican pollster, said that criminal justice reform proposals garner support across the board, and help Republicans reach outside their base to groups like suburban women and people of color.

I am pleased to see this article and like many of its themes.  But amidst generations of mass incarceration and criminalization, data showing a third of US adults has a criminal record, and nationwide 2020 protests focused on racial (in)justice, I am still struck and troubled by the blasé statement that criminal justice reform is just a "niche issue."  (Since I read nine of the first ten Amendments to the US Constitution as setting forth formal or informal safeguards against extreme uses of the police power, I suppose I should be grateful the Framers did not view as "niche" the operation of American criminal justice systems.)

This NY Times piece, coming right after a big transition election, leads me to recall this online article I penned for the Harvard Law & Policy Review almost exactly 12 years ago under the title "Reorienting Progressive Perspectives for Twenty-First Century Punishment Realities."  Among other points, I urged progressives to seek to forge bipartisan coalitions for reform in this way:

[P]rogressives can and should be aggressively reaching out to modern conservatives and libertarians in order to forge new coalitions to attack the many political and social forces that contribute to mass incarceration....  If truly committed to their espoused principles of human liberty and small government, modern conservatives and libertarians should be willing and eager to join a serious campaign committed to reversing the incarceration explosion.  Progressives, rather than categorically resisting calls for smaller government, should encourage modern conservatives and libertarians to turn their concerns and energies toward improving America’s criminal justice systems.  Areas where harsh criminal laws appear to be driven by government efforts to hyper-regulate often intangible harms, such as extreme mandatory sentencing statutes related to drug crimes and gun possession, seem especially likely settings for a convergence of views and new alliances for advocacy efforts.  Specific, issue-based advocacy may allow progressives to forge coalitions with unexpected allies in order to work against some of the most unjust modern sentencing laws and policies.

Though a lot of progress has been made in since I wrote these words back in 2008, there is still a whole lot more that needs to get done. I hope political leaders at the federal, state and local levels will continue to keep working together (on this "niche" issue) to continue to move forward aggressively and effectively.

Second Circuit panel affirms 55-year federalsentence for 15-year-old while lamenting the "unavailability of parole"

A helpful reader made sure I did not miss the interesting opinion by the Second Circtuit today in US v Portillo, No. 19-2158 (2d Cir. Nov. 24, 2020) (available here).  Here is how the opinion gets started:

This appeal, challenging as unreasonably severe a sentence of fifty-five years imposed on a defendant who was fifteen years old at the time of the offense, presents the legal issue of the lawfulness of the sentence and also serves as a classic illustration of the unfortunate consequences of the congressional decision to eliminate parole in the Sentencing Reform Act of 1984.  Defendant-Appellant Josue Portillo appeals from the July 12, 2019, judgment entered in the United States District Court for the Eastern District of New York (Joseph F. Bianco, then-District Judge).  Pursuant to a guilty plea, Portillo was convicted of participating in a pattern of racketeering activity evidenced by his role in the murder of four teenagers, in violation of 18 U.S.C. § 1962(c).

On appeal, Portillo makes two arguments.  First, he urges an extension of the Supreme Court’s decision in Miller v. Alabama, 567 U.S. 460 (2012), that would require the District Court at sentencing in this case to consider the factors that Miller ruled must be considered in sentencing a juvenile to life imprisonment without the possibility of parole.  Second, he contends that his sentence was substantively “unreasonable,” the standard the Supreme Court instructed federal appellate courts to use on review of sentences, see United States v. Booker, 543 U.S. 220, 260-64 (2005), after the Court determined in 2005 that the federal Sentencing Guidelines, which had become effective in 1987, were no longer mandatory, see id. at 245, 259-60.

We conclude that the challenged sentence was lawfully imposed and therefore affirm the judgment.  We also add some observations on the relationship between this sentence and the unavailability of parole.

Two different takes on Prez Trump's clemency record as his term nears conclusion

The silly Presidential turkey pardon tradition has prompted two new pieces about Prez Donald Trump's clemency record that strike markedly different tones.  Here are the headlines, links, and excerpts:

By John Gramlich and Kristen Bialik at Pew Research Center, "So far, Trump has granted clemency less frequently than any president in modern history":

As he enters the home stretch of his White House tenure, Donald Trump has used his clemency power less often than any president in modern history, according to data from the U.S. Department of Justice.  Trump’s sparse use of pardons, commutations and other forms of official leniency stands in sharp contrast to his predecessor, Barack Obama, who used the clemency power more frequently than any chief executive since Harry Truman.

As of Nov. 23, Trump had granted clemency 44 times, including 28 pardons and 16 commutations.  That’s the lowest total of any president since at least William McKinley, who served at the turn of the 20th century.  Obama, by comparison, granted clemency 1,927 times during his eight-year tenure, including 212 pardons and 1,715 commutations.  The only modern president who granted clemency almost as infrequently as Trump is George H.W. Bush, who granted 77 pardons and commutations in his single term.

By Steven Nelson at the New York Post, "Turkeys, Corn and Cob, expected to be first in slew of final Trump pardons":

People close to the White House believe President Trump may pardon humans in addition to turkeys this holiday season — with one advocate saying they expect Trump to close out his term with a bang as the “most merciful” president in history.  Trump will “pardon” gobblers named Corn and Cob in an annual tradition at the White House on Tuesday, but in a potential twist, allies and reform advocates are anticipating more serious reprieves in the coming weeks.

“President Trump has moved mountains since taking office and I’m certain he’s not done yet,” said Amy Povah, a clemency advocate and founder of the CAN-DO Foundation.  “I would not be surprised if he goes down in history as the most merciful president when it comes to correcting injustices carried over from the horrifying tough-on-crime era of the late ’80s and ’90s that is responsible for sending many good people to prison for life, including life for pot.”

Presidents generally are more generous with clemency — including pardons and prison commutations — toward the end of their terms, contributing to the anticipation.

Though I am always eager to complain about Presidents failing to use their clemency powers more, I think the Pew piece is a bit unfair because it compares Prez Trump's record in his first term to mostly two-term Presidents.  In fact, Prez Trump has already granted more clemencies his his first term than did Prez Obama or Prez George W. Bush at this point in their first terms.  Moreover, as the NY Post article suggests, there are reasons to expect Prez Trump will grant some more clemencies — perhaps a lot more clemencies — over his last few months in office.

I sincerely hope Amy Povah and others are effective in encouraging Prez Trump to become "the most merciful president when it comes to correcting injustices carried over from the horrifying tough-on-crime era."  But I cannot help but wonder how Prez Trump's own vision of his political future and legacy might impact his clemency work in the months ahead.  Any attempt at a self-pardon or granting clemencies to lots of family members or close advisors could be viewed as a tacit admission of serious wrong-doing and thus could, perhaps, hurt the Trump political brand.  But since I have never been quite able to figure out the Trump political brand, I will close here by highlighting some notable cases mentioned in the lengthy NY Post piece:

Some clemency aspirants were jailed-for-life for marijuana dealing or importing crimes under President-elect Joe Biden’s 1994 crime law, giving Trump an opportunity to thumb his nose at his 2020 rival....  Allies see the final two-month stretch of Trump’s term as an opportunity to cement his first-term legacy before handing over the reins to Biden, who authored some of the most punitive drug laws.

Paraplegic Michael Pelletier, 64, has a life sentence for smuggling marijuana from Canada into Maine in the early 2000s. Both jurisdictions later legalized the drug and he ruefully notes that pot shops have been deemed “essential” during COVID-19 lockdowns....  Another clemency seeker, Corvain Cooper, 41, has a life sentence for his role transporting marijuana from California to North Carolina, also under the three-strike provision of Biden’s law....

Many prisoners pushed by clemency advocates aren’t public figures and were sentenced for drugs.  David Barren, 55, whose drug-dealing life sentence was reduced to 30 years by former President Barack Obama, told The Post he hopes to be free while his parents, in their 80s, are still alive.  Rufus Rochell, 69, who is under home arrest as he completes a 40-year drug sentence, said his family is grateful that his brother Richard Williams, convicted in the same drug conspiracy, was released from prison this year under Trump’s reform law, but that he would be grateful to have his record cleared.

Physical lists of convicts seeking commutations and pardons have swirled in the West Wing since June 2018 when Trump freed Alice Johnson from a life sentence at the request of Kim Kardashian.  Johnson spoke at this year’s Republican National Convention and traveled with Trump to the first presidential debate in Cleveland.  Trump often speaks proudly of freeing Johnson and turned to her for recommendations.  During this year’s campaign, Trump pledged minority voters a new clemency commission if he won re-election.

The White House did not respond to a request for comment.

"Fake News, Real Policy: Combatting Fear And Misinformation In Criminal Justice"

The title of this post is the title of this interesting new R Street policy study authored by Emily Mooney and Casey Witte. Here is part of its introduction:

Currently, opportunities for and examples of misinformation and fear-mongering within the criminal justice system are bountiful.  The United States is facing a global health crisis and struggling to productively address long-standing issues of racial injustice.  In the first half of 2020, our nation continued to see property crime and most forms of violent crime decrease, while murder and nonnegligent manslaughter rates (although historically still low) rose by nearly 15 percent when compared to the first half of 2019, while aggravated assaults rose by about 5 percent. Although still one of the most crime-free times in our nation’s history, many have been quick to blame this increase on policy changes, such early prison releases due to the COVID-19 pandemic, and civil unrest.9\ Yet, as experts have pointed out, the intersecting forces of a global pandemic, economic recession, racial unrest and nationwide protests mean it will take more time, data and intentional analysis to decipher the causal mechanisms of any current crime trends.

In both the past and present, it has been easy for criminal justice policy to be driven by fear and emotional policymaking rather than a sober assessment of the facts. This occurs for somewhat natural reasons, as the consequences of criminal justice policy failures can appear more immediate and visceral: the potential for the death of a loved one, lost property or abuse are far more tangible concepts than cybersecurity threats or green energy.  This is likely, at least in part, due to human memory — research shows experiences and events tied to strong emotions are more memorable than less dramatic or weighted incidents.  Further, policy success is often measured by recidivism — a zero-sum measure of an individual’s return to crime — rather than other metrics which show incremental progress.  On top of this, the media, more often than not, focuses on policy failures rather than policy successes.

Yet, fear-based and emotionally-driven policy debates and policymaking are a disservice to the American public.  Policymakers and the public may incorrectly deduce or be blind to the collateral consequences of their policies and are prone to letting biases impact their decision-making.  As a result, the same problems remain, which cost life, property and liberty in the process.

This paper seeks to address this trend by first examining the relationships between fear, misinformation and policy and then providing illustrative examples of modern criminal justice myths alongside the evidence stacked against them.  It will then conclude with a short list of policy solutions to combat misinformation and fear-mongering in criminal justice policy.

Great discussions of progressive prosecution in latest issue of the Journal of Criminal Law and Criminology

Anyone and everyone intrigued by the progressive prosecutor movement should be sure to check out Volume 110, Issue 4 of the Journal of Criminal Law and Criminology.  These great-looking articles are in this great-looking issue:

• Progressive Prosecution in a Pandemic by Chad Flanders & Stephen Galoob

• Expanding the Reach of Progressive Prosecution by Jeffrey Bellin

• When Prosecutors Politick: Progressive Law Enforcers Then and Now by Bruce A. Green & Rebecca Roiphe

• Race, Reform, & Progressive Prosecution by Daniel Fryer

• Rural Spaces, Communities of Color, and the Progressive Prosecutor by Maybell Romero

• Prosecutors and their State and Local Polities by Ronald F. Wright

New Sentencing Project fact sheet on "Incarcerated Women and Girls"

The Sentencing Project has released today this notable new fact sheet titled "Incarcerated Women and Girls" which examines (pre-COVID) female incarceration trends. I recommend the full piece (which includes lots of informative graphics), and here are excerpts:

Over the past quarter century, there has been a profound change in the involvement of women within the criminal justice system.  This is the result of more expansive law enforcement efforts, stiffer drug sentencing laws, and post-conviction barriers to reentry that uniquely affect women.  The female incarcerated population stands over seven times higher than in 1980. More than 60% of women in state prisons have a child under the age of 18.

Between 1980 and 2019, the number of incarcerated women increased by more than 700%, rising from a total of 26,378 in 1980 to 222,455 in 2019....

Women in state prisons are more likely than men to be incarcerated for a drug or property offense.  Twenty-six percent of women in prison have been convicted of a drug offense, compared to 13% of men in prison; 24% of incarcerated women have been convicted of a property crime, compared to 16% among incarcerated men.

The proportion of imprisoned women convicted of a drug offense has increased from 12% in 1986 to 26% in 2018.

Reviewing Criminal Justice Unity Task Force Recommendations: a new series to welcome a new President

Since the 2020 federal election results became clear a few weeks ago, I have already blogged a bit (here and here) about some of the the notable criminal justice reform recommendations [available here pp. 56-62] from the Biden-Sanders Unity Task Force (first discussed here).  With Prez-elect Biden now starting to announce his planned cabinet appointments, I have decided it is now time to start a new series of posts that spotlight and amplify some  recommendations from the Criminal Justice Unity Task Force that ought to get sentencing fans especially excited. 

I have never been quite sure if Prez-elect Joe Biden views the recommendations that emerged from the Biden-Sanders Unity Task Force as part of his official avowed agenda.  But I am quite sure that I am going to be eager to persistently judge the work of the Biden Adminstraton against the backdrop of what the Criminal Justice Unity Task Force (CJUTF) recommended.  And because soooooo much is recommended by the CJUTF, everyone should be prepared for a lot of coming posts in this series.

With that set up, let me start this series by spotlighting arguably the most exciting and challenging of all the CJUTF recommendations:

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

This recommendation is so exciting and challenging because it essentialy calls for a top-to-bottom "comprehensive" review of the federal sentencing system.  It is also exciting and challenging because it presupposes a functioning and functional US Sentencing Commission, which has not existed for the better part of two years because of USSC vacancies. 

I have flagged this issue in this first post in this series not only because it is arguably the most far-reaching of the CJUTF recommendations, but also because the incoming Biden Administration needs to be working now on appointments to the US Sentencing Commission if it really wants to hit the ground running.  Sadly, there is a long history of US Sentencing Commission not getting the attention it deserves and that it critically needs if and whenever federal policymakers are seriously committed to federal sentencing reform.  At a time when there is finally sustained bipartisan commitment to continued federal sentencing reforms, the new President and his team should be trying to get all the key players on the field ASAP.  All the other proposed CJUTF sentencing reforms that I will discuss in coming posts can and should be more effectively advanced if and when the Biden Administration does this critical initital appointing work.  

Prior related posts:

• Notable criminal justice reform recommendations from Biden-Sanders Unity Task Force 
• Can we be hopeful federal leaders will make deals to advance federal criminal justice reforms in the next Congress?
• Tomorrow can be today for some Biden-Sanders Unity Task Force criminal justice recommendations 

Latest Gallup poll indicates "U.S. Support for Death Penalty Holds Above Majority Level"

The quoted portion of the title of this post is the headline of this Gallup report from a few days ago,  Here are excerpts from the report:

Americans' support for the death penalty continues to be lower than at any point in nearly five decades.  For a fourth consecutive year, fewer than six in 10 Americans (55%) are in favor of the death penalty for convicted murderers.  Death penalty support has not been lower since 1972, when 50% were in favor.

Gallup has asked Americans whether they are "in favor of the death penalty for a person convicted of murder" since 1936, when 58% said they were. In all but one survey -- in 1966 -- more Americans have been in favor than opposed.  The 1960s and early 1970s brought many legal challenges to the death penalty, culminating in a 1972 U.S. Supreme Court ruling that invalidated state death penalty statutes.  After the high court upheld revised state death penalty laws in 1976, support for capital punishment grew, peaking at 80% in 1994, a time of heightened public concern about crime.

This year's results are based on a Sept. 30-Oct. 15 survey.  Gallup occasionally asks another question to gauge death penalty support, with respondents indicating whether they believe the better punishment for murder is the death penalty or life imprisonment with no possibility of parole.  In the most recent update, from 2019, Americans favored life imprisonment over the death penalty by 60% to 36%, a dramatic shift from prior years.

Many Americans are thus conflicted on the death penalty.  The two Gallup trend questions indicate that about one in five Americans express theoretical support for use of the death penalty but believe life imprisonment is a better way to punish convicted murderers....

Both Democrats and independents show declines in their support for the death penalty, including similar drops (eight and seven percentage points, respectively) since 2016.  Between the 2000-2010 and 2011-2016 time periods, Democratic support dropped more (eight points) than independent support did (three points).  Now, 39% of Democrats and 54% of independents are in favor of the death penalty.  Meanwhile, Republicans' support for the death penalty has held steady, with 79% currently supporting it, unchanged since 2016 and barely lower than the 80% registered between 2000 and 2010....

Changes in the U.S. population appear to be a factor in declining death penalty support in recent years. Groups that are constituting a greater share of the U.S. adult population over time -- including millennials and Generation Z, non-White adults and college graduates -- all show below-average support for the death penalty.

Over the past four years, an average of 45% of those in Generation Z (those born after 1996) have favored the death penalty, as have 51% of millennials (those born between 1980 and 1996).  That compares with 57% of those in Generation X, 59% of baby boomers and 62% of those born before 1946.

Forty-six percent of non-White Americans, versus 61% of Non-Hispanic White Americans, support the death penalty. Among college graduates, 46% favor the death penalty, compared with 60% of those without a college degree.

"Some Modest Proposals for a Progressive Prosecutor"

the title of this post is the title of this new piece now available via SSRN authored by Steven Zeidman. Here is its abstract:

The progressive prosecutor movement has spawned a number of races for District Attorney where candidates fight to claim the mantle of most progressive potential prosecutor. However, the promises made by self-described forward thinking, if not exactly radical, prosecutor candidates, as well as those made by newly elected District Attorneys, are at best the kind of reformist reforms criticized by many as having little impact on entrenched systems of oppression and as ultimately expanding their reach.

It is incumbent on those looking for fundamental change in prosecutorial practices to try and assess whether any candidates are willing to take bolder steps than simply promising to prosecute more fairly and compassionately.  Instead, the inquiry must be whether the candidate is willing to give up any aspects of the awesome power and the vast resources bestowed upon the office, particularly when it comes to the trial process.

Highlighting the need for second-chance sentencing reforms

This new Law360 piece, headlined "2nd Look Law Needed To Fix Broken Criminal Justice System," gives attention to a recent ABA panel discussing second-look sentencing reforms.  Here are excerpts:

To address the mass incarceration that has resulted from older policing practices, which has disproportionately impacted Black men, federal and local governments should adopt so-called second look laws that allow incarcerated individuals to petition judges to reevaluate their sentences after a certain period of time, experts said Thursday at the American Bar Association's annual fall criminal justice conference.

Mary Price, general counsel at Families Against Mandatory Minimums, or FAMM, a nonprofit advocacy organization seeking to end mandatory sentencing, said that our criminal justice system has been addicted to putting people in prison to manage problems leading to mass incarceration, and this needs to stop.  "I don't think we are going to be able to achieve justice in the system until we not only reform the police and practices, but we also ensure that the legacy of older policing — in the form of people serving sentences that are way out of proportion with their conduct, and also people who are thrown away because the nature of the offense or the addiction — is also addressed," Price said.

Last year, Sen. Cory Booker, D-N.J., along with Rep. Karen Bass, D-Calif., introduced the Second Look Act of 2019 that proposes allowing any incarcerated individual who has served at least 10 years to request that their sentence be reevaluated to determine if they are eligible for early release or a sentence reduction, but the bill hasn't passed in the U.S. Senate or House of Representatives yet.

David Singleton, the executive director of the Ohio Justice and Policy Center, said during a panel titled Second Look & Incarceration with Price at the ABA conference that a challenge to getting a federal second look law passed is that lawmakers want carveouts that would exempt certain crimes, such as murder or sex offenses, from the law. Singleton said carveouts defeat the purpose of the law because they leave people behind. "We have to move away from these carveouts," Singleton said.  "If we accept carveouts, the advocates of change, we are throwing people under the bus."...

Booker reinforced the panelists' words during his keynote speech at the conference on Friday, saying that criminal justice reform needs to be throughout the country's entire justice system.  "We must commit ourselves to continuing the work of reforming a savagely broken system and that means everything — our policing to what happens with sentencing to what happens inside our prisons to what happens upon release," Booker said.

Notable review of New York's recent parole realities

This Times Union has this notable new article on New York's notable parole realities under the full headline "A 'broken' parole process: Data shows widened racial bias: Four years after racial disparities exposed, a state report has yet to be released." Here is how the piece gets started:

A white inmate in a New York prison is significantly more likely on average to be released on parole than a Black or Hispanic person — and that gap has widened in 2020, according to a Times Union analysis of the nearly 19,000 parole board decisions over the last two years.

The disparities continue despite steps by the Department of Corrections and Community Supervision to make the parole board more diverse.  That initiative began about four years ago, after Gov. Andrew M. Cuomo ordered an investigation by the inspector general's office into revelations in a New York Times series that exposed the racial imbalances in parole and prison disciplinary proceedings.  The investigation has languished and no public report has been released.

The inspector general’s office, in an email response to questions, asserted without providing any data that racial disparities have gone down in recent years.  They offered a list of policy changes that have been made, including changes to sentencing guidelines, appeals processes and implicit bias training.

DOCCS, which oversees New York’s 53 state prisons, said the Times Union's analysis was too limited.  Spokesman Thomas Mailey wrote that the analysis was inadequate because detailed factors like disciplinary and program records, positions of the district attorney, sentencing courts and victim impact statements were not considered.

But officials contacted for this story did not provide any evidence countering the Times Union's core findings.  And those findings were averages based on each parole initial hearing and reappearance over the last two years, showing that the racial disparities were prevalent in the outcomes.

In discretionary parole hearings from October 2018 through October 2020, where commissioners from the Board of Parole decided whether incarcerated people should be released from prison, the Times Union’s analysis showed that 41 percent of white people were granted parole, compared to 34 percent of Blacks and 33 percent of Hispanics.  These numbers include initial parole appearances once people meet their minimum sentences, as well as subsequently scheduled reappearances, which are usually every two years.  It excludes more specialized categories such as medical hearings or those relating to deportations.

If Black and Hispanic people were paroled at the same rates as whites over the last two years alone, there would be 675 fewer people behind bars.

"Therapeutic Discipline: Drug Courts, Foucault, and the Power of the Normalizing Gaze"

The titl of this post is the title of this notable new article available via SSRN and authored by Michael Sousa. Here is its abstract:

Drug treatment courts represent a paradigm shift in the American criminal justice system.  By focusing on providing drug treatment services to low-level offenders with severe use disorders rather than sentencing them to a term of incarceration, drug courts represent a return to a more rehabilitative model for dealing with individuals ensnared by the criminal justice system and away from the retributive model that dictated punishment in the latter half of the twentieth century.  The existing scholarship exploring how drug treatment courts function has been largely atheoretical, and past attempts to harmonize theory to drug treatment courts fail to demonstrate how these institutions normalize offenders prior to reintegration into society.  Relying on Michel Foucault’s notion of governmentality together with his concepts of “technologies of power” and “technologies of the self,” I develop the analytical framework of “therapeutic discipline” as a more robust lens through which to understand the operation of drug treatment courts nationwide.  My contribution of “therapeutic discipline” to the existing literature is bolstered by representative examples of qualitative data taken from a long-term, ethnographic study of one adult drug treatment court.

"What the data says (and doesn’t say) about crime in the United States"

The title of this post is the title of this effective short FactTank report about US crime rates authored byJohn Gramlich for the Pew Research Center. I recommend the full piece, which includes lost of links, and here are some exerpts:

As Trump’s presidency draws to a close, here is a look at what we know — and don’t know — about crime in the U.S., based on a Pew Research Center analysis of data from the federal government and other sources...

Property crime in the U.S. is much more common than violent crime.  In 2019, the FBI reported a total of 2,109.9 property crimes per 100,000 people, compared with 379.4 violent crimes per 100,000 people.  By far the most common form of property crime in 2019 was larceny/theft, followed by burglary and motor vehicle theft. Among violent crimes, aggravated assault was the most common offense, followed by robbery, rape, and murder/non-negligent manslaughter....

Both the FBI and BJS data show dramatic declines in U.S. violent and property crime rates since the early 1990s, when crime spiked across much of the nation....

Americans tend to believe crime is up, even when the data shows it is down.  In 20 of 24 Gallup surveys conducted since 1993, at least 60% of U.S. adults have said there is more crime nationally than there was the year before, despite the generally downward trend in national violent and property crime rates during most of that period....  This year, the gap between the share of Americans who say crime is up nationally and the share who say it is up locally (78% vs. 38%) is the widest Gallup has ever recorded....

There are big differences in violent and property crime rates from state to state and city to city.  In 2019, there were more than 800 violent crimes per 100,000 residents in Alaska and New Mexico, compared with fewer than 200 per 100,000 people in Maine and New Hampshire, according to the FBI.

Even in similarly sized cities within the same state, crime rates can vary widely. Oakland and Long Beach, California, had comparable populations in 2019 (434,036 vs. 467,974), but Oakland’s violent crime rate was more than double the rate in Long Beach. The FBI notes that various factors might influence an area’s crime rate, including its population density and economic conditions....

Most violent and property crimes in the U.S. are not reported to police, and most of the crimes that are reported are not solved.

Fewer than half of crimes in the U.S. are reported, and fewer than half of reported crimes are solved.  In its annual survey, BJS asks crime victims whether they reported their crime to police or not.  In 2019, only 40.9% of violent crimes and 32.5% of household property crimes were reported to authorities.  BJS notes that there are a variety of reasons why crime might not be reported, including fear of reprisal or “getting the offender in trouble,” a feeling that police “would not or could not do anything to help,” or a belief that the crime is “a personal issue or too trivial to report.”

Most of the crimes that are reported to police, meanwhile, are not solved, at least based on an FBI measure known as the clearance rate.  That’s the share of cases each year that are closed, or “cleared,” through the arrest, charging and referral of a suspect for prosecution, or due to “exceptional” circumstances such as the death of a suspect or a victim’s refusal to cooperate with a prosecution.  In 2019, police nationwide cleared 45.5% of violent crimes that were reported to them and 17.2% of the property crimes that came to their attention.

Both the percentage of crimes that are reported to police and the percentage that are solved have remained relatively stable for decades.... The most frequently solved violent crime tends to be homicide.  Police cleared around six-in-ten murders and non-negligent manslaughters (61.4%) last year.  The clearance rate was lower for aggravated assault (52.3%), rape (32.9%) and robbery (30.5%). When it comes to property crime, law enforcement agencies cleared 18.4% of larcenies/thefts, 14.1% of burglaries and 13.8% of motor vehicle thefts.

Terrific coverage at CCRC as "Marijuana expungement accelerates across the country"

Long-time readers here and at my other blog know I have long been interested in how marijuana reform can advance criminal justice reform.  My 2018 article, "Leveraging Marijuana Reform to Enhance Expungement Practices," called for much greater efforts to ensure marijuana reforms advance criminal record expungement efforts.  Happily, my 2018 article now already feels a bit dated because there has recently been a much greater emphasis on record relief in many marijuana reforms proposed and passed over the last couple of years. 

These recent realities have been effectively documented at the Collateral Consequences Resource Center.  CCRC Deputy Director David Schlussel first highlighted these developments in March 2020, via this posting and resource under the title "Legalizing marijuana and expunging records across the country."  That detailed posting began this way:  "As the legalization or decriminalization of marijuana has now reached a majority of the states, the expungement of criminal records has finally attained a prominent role in the marijuana reform agenda."  Wonderfully, this new follow-up posting provides the lastest detailed post-election accounting and gets started this way:

In November’s election, four more states legalized marijuana at the ballot box: Arizona, Montana, New Jersey, and South Dakota. The measures in Arizona and Montana included provisions for expunging the record of convictions for certain marijuana arrests or convictions.  During this year’s presidential campaign, President-elect Joseph R. Biden called for decriminalizing marijuana use and automatically expunging all marijuana use convictions.

As legalization continues to advance, the expungement of criminal records has finally attained a prominent role in marijuana reform, a development we documented in March.  Laws to facilitate marijuana expungement and other forms of record relief, such as sealing and set-aside, have now been enacted in 23 states and D.C.

Until very recently, most such laws extended to very minor offenses involving small amounts of marijuana and required individuals to file petitions in court to obtain relief.  Now, a growing number of states have authorized marijuana record relief that covers more offenses and either does away with petition requirements or streamlines procedures.

With these developments, we have again updated our chart providing a 50-state snapshot of:

(1) laws legalizing and decriminalizing marijuana;

(2) laws that specifically provide relief for past marijuana arrests and convictions, including but not limited to conduct that has been legalized or decriminalized; and

(3) pardon programs specific to marijuana offenses.

US Department of Justice sets three more execution dates

In this July post I wondered aloud "How many federal death row prisoners does Attorney General William Barr want to see executed in 2020?".  My main point in that post was that, after the completion of an initial three federal executions that month thanks to SCOTUS lifting lower court stays, it seemed that AG Barr would likely be able to have completed as many executions he decided to set.  For anyone who might have thought AG Barr would be content with ten executions in 2020 (eight already completed and two more planned), this new DOJ press reveals details he is not done.  This release is titled  "Executions Scheduled for Inmates Convicted of Brutal Murders Many Years Ago," and here are the essentials:

Attorney General William P. Barr today directed the Federal Bureau of Prisons to schedule the executions of three federal-death row inmates sentenced to death for staggeringly brutal murders, including the murder of a child and, with respect to two inmates, the murder of multiple victims.

• Alfred Bourgeois abused, tortured, and beat to death his young daughter....  Bourgeois is scheduled to be executed by lethal injection on Dec. 11, 2020, at the Federal Correctional Complex, Terre Haute, Indiana.
• Cory Johnson murdered seven people — Peyton Johnson, Louis Johnson, Bobby Long, Dorothy Armstrong, Anthony Carter, Linwood Chiles, and Curtis Thorne — in furtherance of his drug-trafficking activities....  Johnson is scheduled to be executed by lethal injection on Jan. 14, 2021, at the Federal Correctional Complex, Terre Haute, Indiana.
• Dustin John Higgs kidnapped and murdered three women — Tamika Black, 19; Tanji Jackson, 21; and Mishann Chinn, 23....  Higgs is scheduled to be executed on Jan. 15, 2021.

NACDL continuing great work spotlighting the ugly trial penalty now through compelling clemency petitions

This news release, titled "NACDL Trial Penalty Clemency Project Submits Second Set of Petitions to White House," reports effectively on work by the National Association of Criminal Defense Lawyers to shine light on, and seek needed remedies for, criminal defendants unfairly subject to the "trial penalty."  Here are some details on NACDL's latest efforts and prior work:

As of this week, NACDL’s Trial Penalty Clemency Project submitted four more federal clemency petitions to the Office of the Pardon Attorney and the White House, adding to the first set of six petitions submitted on October 2, 2020.  Of the four petitions, three concern individuals serving life or lengthy sentences for non-violent drug charges, and one concerns an individual serving over 35 years for a non-violent white-collar conviction.

As of late, increased attention to the criminal legal system has led to public outrage and calls to reform myriad facets of the American legal system.  The trial penalty, though, which refers to coercive prosecutorial practices that induce accused persons to waive fundamental rights under threat of a vastly increased sentence when fundamental rights are asserted, persists in undermining the American criminal legal system.  The most obvious examples of its impact are seen in those who assert their rights and receive a geometrically enhanced sentence.  Though reform is badly needed to end the trial penalty, the only immediate remedy for those individuals living this injustice is executive clemency.  NACDL’s Trial Penalty Clemency Project aims to assist those individuals by pairing applicants with volunteer attorneys who will assist them in preparing a clemency petition.

“The trial penalty makes a mockery of the Constitution’s Sixth Amendment right to trial and is a large and ever-growing cancer on the American criminal legal system,” said NACDL President Chris Adams.  “Every time a defendant opts to hold the government to its burden and go to trial, and receives a substantially more draconian sentence than was previously offered in a plea deal, the American legal system moves further away from justice.  NACDL’s Trial Penalty Clemency Project is a vital step in beginning to remedy this great injustice.”

Thus far, through affiliates, members, and the assistance of organizations in this space like the CAN-DO Foundation, the Last Prisoner Project, and Life For Pot, the Project has identified, reviewed, and assigned more than 20 cases with attorneys.  The attorneys are crafting petitions or supplements to existing petitions focusing on the impact of the trial penalty. In addition to filing the petitions with the Office of the Pardon Attorney, the Project brought the four cases described below, in addition to six previous cases, to the attention of the White House panel on clemency.  NACDL’s Trial Penalty Clemency Project is a component of NACDL’s Return to Freedom Project...

In 2018, NACDL released a groundbreaking report – The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It. Information and a PDF of NACDL’s 2018 Trial Penalty report, as well as video of the entire 90-minute launch event at the National Press Club in Washington, DC, and other trial penalty-related videos and materials are available at www.nacdl.org/trialpenaltyreport.

In 2019, The Federal Sentencing Reporter, published by University of California Press, released a double issue covering April and June 2019, edited by NACDL Executive Director Norman L. Reimer and NACDL President-Elect Martín Antonio Sabelli, entitled "The Tyranny of the Trial Penalty: The Consensus that Coercive Plea Practices Must End."

And in 2020, NACDL and FAMM released a documentary on the trial penalty, The Vanishing Trial. The trailer for that film is available here.

SCOTUS grants cert on two new Fourth Amendment cases

The US Supreme Court released this brief order list this afternoon granting certiorari in these two new cases with these questions presented:

19-1414 UNITED STATES V. COOLEY, JOSHUA J.

Cert petition question presented: "Whether the lower courts erred in suppressing evidence on the theory that a police officer of an Indian tribe lacked authority to temporarily detain and search respondent, a non-Indian, on a public right-of-way within a reservation based on a potential violation of state or federal law."

20-157 CANIGLIA, EDWARD A. V. STROM, ROBERT F., ET AL.

Cert petition question presented: "Whether the 'community caretaking' exception to the Fourth Amendment’s warrant requirement extends to the home."