Sentencing Law and Policy

Start-of-summer update on the relatively good homicide news from cities in first half of 2023

In this post from early April 2023, I flagged the AH Datalytics collection of homicide data from police reports in nearly 100 big cities to note that, after significant increases in homicides throughout the US in 2020 and 2021, homicide declines in 2022 were continuing into the start of 2023.  Of course, homicide declines for 2022 followed particularly high homicide rates in many locales in 2021, and we still have a way to go to get back to pre-pandemic homicide levels.  Still, I found the nationwide city homicide data to be encouraging for 2022 and early 2023, and now we have even more data suggesting positive recent homicide trends are continuing and perhaps even accelerating across big cities. 

As we head into the unofficial start of the summer months, according to this AH Datalytics webpage, there is now so far cumulative 12% decline in murders across the nation's cities for more than the first third of 2023.   And, as I have done in some prior recent posts on homicide rates, I find it interesting (and now encouraging) to took a closer look at a updated police reports showing 2023 homicide trends in our very biggest US cities: 

Chicago homicides down 14% in 2022, and down another 7% over nearly five months of 2023

Houston homicides down 9% in 2022, and down another 28% over the first fourth months of 2023

Los Angeles homicides down 5% in 2022, and down another 28% over nearly five months of 2023

New York City homicides down 11% in 2022, and down another 13% in first three+ months of 2023

Philadelphia homicides down 9% in 2022, and down another 15% over first five months of 2023

As I have said before, these homicide data from cities are likely not fully representative of what may be going on with homicides nationwide, and homicide trends always seem to be unpredictable and data can change in lots of ways in coming months.  Still, the latest nationwide homicide data from the AH Datalytics webpage continue to reinforce my hope that the surging number of homicides in just about every part of the US through 2020 and 2021 were mostly a pandemic era phenomenon and that homicide rates may nor be trending back toward pre-pandemic norms.

"The Animal Crushing Offense Loophole"

The title of this post is the title of this new essay authored authored by Ben Buell available via SSRN. Here is its abstract:

The Preventing Animal Cruelty and Torture (“PACT”) Act of 2019 established the first federal criminal penalties targeting the most extreme forms of animal abuse.  Hailed by humane groups as a watershed moment in the development of animal welfare law, the PACT Act created a new federal crime: “animal crushing” — i.e., the crushing, burning, drowning, suffocation, and impalement of living non-human creatures.  But as the first defendants convicted under the PACT Act face sentencing in federal courts, judges and other stakeholders find little direction in the Federal Sentencing Guidelines.  The United States Sentencing Commission, which until recently lacked a voting quorum, has yet to promulgate an amendment to the Guidelines that accounts for this change in the law.  Instead, the current framework perpetuates a loophole in which the recommended penalty for animal crushing is typically less than the recommendation for offenders convicted of creating or distributing videos of that conduct.  As federal prosecutors increasingly bring charges under the PACT Act, this gap in the Guidelines will continue to lead to unjust sentencing disparities that do not adequately reflect the depravity of animal torture.

This Essay is the first to identify what it terms the “animal crushing offense loophole.”  It offers three potential solutions on the eve of the Commission’s annual amendment cycle: the creation of a new Animal Crushing Guideline, the express recognition of animal victimhood, and the use of a set of sentencing factors that distinguish among animal crushing defendants.

New GOP Prez candidate DeSantis pledges to repeal FIRST STEP Act

I noted in this post a few month ago a press report that Florida Gov Ron DeSantis was planning to assail former Prez Trump for his support of the FIRST STEP Act back in 2018. And, sure enough, with days of announcing his candidacy for President, Gov DeSantis has attacked Trump's signature criminal justice reform achievement. This Fox News piece, headlined "Ron DeSantis rips Trump over First Step Act, vows to repeal it: 'Basically a jailbreak bill'," provides these details:

Republican presidential candidate and Florida Gov. Ron DeSantis vowed Friday to seek a repeal of President Trump's signature First Step Act, a bipartisan criminal justice reform bill that aimed to reduce recidivism, allowed a pathway for non-violent prisoners to shorten their sentences, and reduced mandatory minimum sentences.

"Under the Trump administration — he enacted a bill, basically a jailbreak bill, it's called the First Step Act. It has allowed dangerous people out of prison who have now re-offended, and really, really hurt a number of people," DeSantis said in an interview with the Daily Wire.

"So one of the things I would want to do as president is go to Congress and seek the repeal of the First Step Act. If you are in jail, you should serve your time. And the idea that they're releasing people who have not been rehabilitated early, so that they can prey on people in our society is a huge, huge mistake," he added.

DeSantis voted for the first version of the bill as a member of the House of Representatives in 2018, the same year he was elected as Florida's governor, but had resigned before the final, more moderate version of the bill came to a vote in the chamber.

Trump's campaign responded to DeSantis by pointing to his original vote, and argued he was basically criticizing his own supporters in Congress who also voted for the bill. "Lyin' Ron. He voted for the First Step Act. Would be a shame if there was video of him praising it in an interview with a local FL television station..." Trump campaign spokesperson Stephen Cheung tweeted following the DeSantis' interview.

"DeSantis supporter [Rep. Thomas Massie, R-Ky.] voted for the bill as well. DeSantis is calling out his own Congressional supporters and throwing them under the bus," he later added in a separate tweet.

"Voices Of Redemption: A National Survey Of People With Records"

The title of this post is the title of this notable recent report from the Alliance for Safety and Justice.  Here is its executive summary:

States across the nation continue to grapple with the need for changes in our criminal justice and public safety systems.  There is increasing recognition that over-reliance on incarceration without enough prevention and treatment locks communities into cycles of crime.

The voices and experiences of people who are impacted by crime and incarceration are critical to informing the urgent debate on public safety and defining the best path forward to stop the cycle of crime and promote safety and justice.

Understanding the short and long-term impacts of these policies, however — particularly the impacts of post-sentencing policies on people with records — has been alarmingly limited.

To help decision-makers understand these impacts, in March, 2023, Alliance for Safety and Justice commissioned a first-of-its-kind National Survey of People with Records.  A nationally representative sample of 4,060 people across the country were contacted.  From that pool, 554 people who had been arrested, convicted, or incarcerated were interviewed about their experiences with, and impacts of contact with the criminal justice system.

The 2023 National Survey of People with Records reveals that the majority of people with records have suffered significant barriers to economic mobility as a result of their record, nearly all have been victims of crime who did not receive support in the aftermath of harm, and most experienced crisis prior to arrest.

The following key findings from this survey point to opportunities for further research and reform to advance policies that balance accountability, prevention, rehabilitation, and second chances that keep all communities safe.

A long round-up of sentencing news and commentary before a long weekend

I hope to be mostly off-line for most of the long weekend, and so I will lean into being away by doing a lengthy round-up of various pieces that caught my attention recently but that I did not find time to blog about.  (Also, I must remind everyone that a long weekend is a great time to lean into the Drug Enforcement and Policy Center's new podcast, "Drugs on the Docket.")   As always, I welcome reader thoughts on which of these round-up stories might justify more attention.  Here goes:

From ABC News, "All 123 US federal prisons need 'maintenance': Inspector general"

From the AP, "Alaska court reconsiders 135-year sentence given to youngest girl ever convicted of murder in Alaska"

From Bolts, "Survivors of Solitary Confinement Face the California Governor’s Veto Pen"

From the Detroit Free Press, "They thought they’d die in prison. Now they’re juvenile justice advocates on a mission"

From the Kansas City Star, "American Bar Association calls on Missouri governor to halt execution of Michael Tisius"

From The Lancet, "The death penalty: a breach of human rights and ethics of care"

From Marijuana Moment, "House-Passed Fentanyl Criminalization Bill Would Also Make It Easier To Study Marijuana And Psychedelics"

From the Marshall Project, "LIFE INSIDE, ANIMATED: An animated series featuring the stories of those whose lives have intersected with the criminal justice system."

From National Review, "Weakening Capital Punishment Jury Standards Risks Injustice"

From Pew, "Racial Disparities Persist in Many U.S. Jails"

From The San Francisco Standard, "Can 2 Years and $20M Transform San Quentin Into a Model of Prison Reform?"

From Scripps News, "After the sentence: The work to restore rights of returning citizens"

From Slate, "I Watched My Brother’s Lethal Injection.  No one understands what this is like."

Oath Keepers founder gets 18 years in federal prison for role in Jan 6 riot

As reported in this AP piece, the "founder of the Oath Keepers extremist group was sentenced Thursday to 18 years in prison for orchestrating a weekslong plot that culminated in his followers attacking the U.S. Capitol in a bid to keep President Joe Biden out of the White House after the 2020 election." Here is more:

Stewart Rhodes is the first person charged in the Jan. 6, 2021, attack to be sentenced for seditious conspiracy, and his sentence is the longest that has been handed down so far in the hundreds of Capitol riot cases.

It’s another milestone for the Justice Department’s sprawling Jan. 6 investigation, which has led to seditious conspiracy convictions against the top leaders of two far-right extremist groups authorities say came to Washington prepared to fight to keep President Donald Trump in power at all costs.

Before handing down the sentence, the judge told a defiant Rhodes that he is a continued threat to the U.S., saying it’s clear Rhodes “wants democracy in this country to devolve into violence.”

“The moment you are released, whenever that may be, you will be ready to take up arms against your government,” U.S. District Judge Amit Mehta said....

Prosecutors had sought 25 years for Rhodes, who they say was the architect of a plot to forcibly disrupt the transfer of presidential power that included “quick reaction force” teams at a Virginia hotel to ferry weapons into D.C. if they were needed. The weapons were never deployed.

In remarks shortly before the judge handed down the sentence, Rhodes slammed the prosecution as politically motivated, noted that he never went inside the Capitol and insisted he never told anyone else to do so. “I’m a political prisoner and like President Trump my only crime is opposing those who are destroying our country,” Rhodes said.

In a first for a Jan. 6 case, U.S. District Judge Amit Mehta agreed with prosecutors to apply enhanced penalties for “terrorism,” under the argument that the Oath Keepers sought to influence the government through “intimidation or coercion.”  Judges in previous sentencings had shot down the Justice Department’s request for the so-called “terrorism enhancement” — which can lead to a longer prison term — but Mehta said it fits in Rhodes’ case.

Prosecutors argued that a lengthy sentence is necessary to deter future political violence. Assistant U.S. Attorney Kathryn Rakoczy pointed to interviews and speeches Rhodes has given from jail repeating the lie 2020 election was stolen and saying it would be again in 2024. In remarks just days ago, Rhodes called for “regime change,” the prosecutor said....

A lawyer for Rhodes, who plans to appeal his conviction, said prosecutors are unfairly trying to make Rhodes “the face” of January 6. Attorney Phillip Linder told the judge that Rhodes could have had many more Oath Keepers come to the Capitol “if he really wanted to” disrupt Congress’ certification of the Electoral College vote. “If you want to put a face on J6 (Jan. 6), you put it on Trump, right-wing media, politicians, all the people who spun that narrative,” Linder said.

Another Oath Keeper convicted alongside Rhodes in November — Florida chapter leader Kelly Meggs — was expected to receive his sentence later Thursday. Two other Oath Keepers, acquitted of the sedition charge but convicted of other offenses, will be sentenced Friday. And four other members found guilty of seditious conspiracy at a second trial in January are scheduled to be sentenced next week....

Rhodes’ sentence may forecast what prosecutors will seek for former Proud Boys national chairman Enrique Tarrio, who was convicted of seditious conspiracy alongside other leaders of his far-right group this month for what prosecutors said was a separate plot to block the transfer of presidential power. The Proud Boys will be sentenced in August and September.

Rhodes, 58, and the other Oath Keepers said there was never any plan to attack the Capitol or stop Congress from certifying Biden’s victory. The defense tried to seize on the fact that none of the Oath Keepers’ messages laid out an explicit plan to storm the Capitol. But prosecutors said the Oath Keepers saw an opportunity to further their goal to stop the transfer of power and sprang into action when the mob began storming the building....

Before Thursday, the longest sentence in the more than 1,000 Capitol riot cases was 14 years for a man with a long criminal record who attacked police officers with pepper spray and a chair as he stormed the Capitol. Just over 500 of the defendants have been sentenced, with more than half receiving prison time and the remainder getting sentences such as probation or home detention.

Rhodes will not only be appealing his convictions, but surely also this sentencing.  The application of the guidelines' 'terrorism enhancement" will surely be part of any sentencing appeal, though I suspect there will be plenty of other issues raised for the DC Circuit to consider.

Prior related posts:

• Big spread in sentencing recommendations for Oath Keepers founder convicted of seditious conspiracy
• Extended discussion of issues surrounding upcoming federal sentencing of Oath Keepers 

UPDATE with additional sentencing:  This CBS News piece, which is mostly about the Rhodes sentencing, includes this news about a co-defendant's subsequent sentencing:

Hours after Rhodes was sentenced, his co-defendant Kelly Meggs, the leader of the Florida chapter of the Oath Keepers, was given a sentence of 12 years behind bars. Meggs was convicted of seditious conspiracy alongside Rhodes last November. Prosecutors alleged he spearheaded the effort to enter the Capitol.

Justice Gorsuch (joined by Justice Jackson) talks up Excessive Fines Clause after SCOTUS majority finds tax forfeiture is a taking

A civil case on the Supreme Court's docket that I have been watching as the Term winds down is Tyler v. Hennepin County, Minnesota, which presented these issues: (1) Whether taking and selling a home to satisfy a debt to the government, and keeping the surplus value as a windfall, violates the Fifth Amendment's takings clause; and (2) whether the forfeiture of property worth far more than needed to satisfy a debt, plus interest, penalties, and costs, is a fine within the meaning of the Eighth Amendment.  The Supreme Court this morning handed down a unanimous opinion in Tyler, and the opinion for the Court, authored by Chief Justice Roberts, concludes this way:

The Takings Clause “was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong, 364 U.S., at 49.  A taxpayer who loses her $40,000 house to the State to fulfill a $15,000 tax debt has made a far greater contribution to the public fisc than she owed.  The taxpayer must render unto Caesar what is Caesar’s, but no more.

Because we find that Tyler has plausibly alleged a taking under the Fifth Amendment, and she agrees that relief under “the Takings Clause would fully remedy [her] harm,” we need not decide whether she has also alleged an excessive fine under the Eighth Amendment. Tr. of Oral Arg. 27. The judgment of the Court of Appeals for the Eighth Circuit is reversed.

But while the Court as a whole dodged the Eighth Amendment's Excessive Fines Clause, a concurring opinion by Justice Gorsuch (joined by Justice Jackson) had lots to say on the topic.  Here are a few passages from a short concurrence:

Given its Takings Clause holding, the Court understandably declines to pass on the question whether the Eighth Circuit committed a further error when it dismissed Ms. Tyler’s claim under the Eighth Amendment’s Excessive Fines Clause. Ante, at 14.  But even a cursory review of the District Court’s excessive-fines analysis — which the Eighth Circuit adopted as “well-reasoned,” 26 F. 4th 789, 794 (2022) — reveals that it too contains mistakes future lower courts should not be quick to emulate.

First, the District Court concluded that the Minnesota tax-forfeiture scheme is not punitive because “its primary purpose” is “remedial” — aimed, in other words, at “compensat[ing] the government for lost revenues due to the nonpayment of taxes.” 505 F. Supp. 3d 879, 896 (Minn. 2020).  That primary-purpose test finds no support in our law. Because “sanctions frequently serve more than one purpose,” this Court has said that the Excessive Fines Clause applies to any statutory scheme that “serv[es] in part to punish.” Austin v. United States, 509 U.S. 602, 610 (1993) (emphasis added).  It matters not whether the scheme has a remedial purpose, even a predominantly remedial purpose.  So long as the law “cannot fairly be said solely to serve a remedial purpose,” the Excessive Fines Clause applies.  Ibid. (emphasis added; internal quotation marks omitted)....

Second, the District Court asserted that the Minnesota tax-forfeiture scheme cannot “be punitive because it actually confers a windfall on the delinquent taxpayer when the value of the property that is forfeited is less than the amount of taxes owed.” 505 F. Supp. 3d, at 896.  That observation may be factually true, but it is legally irrelevant.  Some prisoners better themselves behind bars; some addicts credit court-ordered rehabilitation with saving their lives.  But punishment remains punishment all the same....

Third, the District Court appears to have inferred that the Minnesota scheme is not “punitive” because it does not turn on the “culpability” of the individual property owner.  505 F. Supp. 3d, at 897.  But while a focus on “culpability” can sometimes make a provision “look more like punishment,” this Court has never endorsed the converse view.  Austin, 509 U.S., at 619.  Even without emphasizing culpability, this Court has said a statutory scheme may still be punitive where it serves another “goal of punishment,” such as “[d]eterrence.”  United States v. Bajakajian, 524 U.S. 321, 329 (1998).  And the District Court expressly approved the Minnesota tax-forfeiture scheme in this case in large part because “‘the ultimate possibility of loss of property serves as a deterrent to those taxpayers considering tax delinquency.’” 505 F. Supp. 3d, at 899 (emphasis added).  Economic penalties imposed to deter willful noncompliance with the law are fines by any other name.  And the Constitution has something to say about them: They cannot be excessive.

Catching up, yet again, with a big bunch of relisted acquitted conduct petitions pending before SCOTUS

Over at SCOTUSblog, John Elwood has his latest "Relist Watch" posting, and this new post is titled "Acquitted-conduct sentencing returns."   As regular readers know, I have been following a number of cert petitions challenging the practice of judges increasing sentences on the basis of conduct on which a defendant was acquitted; I also filed an amicus brief in one of the cases (in support of petitioner Dayonta McClinton).  The SCOTUSblog post provides this effective review of where matters now stand (links from the original):

Back in January, we noted that the Supreme Court had relisted five petitions challenging the constitutionality of the controversial practice of acquitted-conduct sentencing. (Disclosure: I represent the petitioner in one of those cases.) Under it, the fact that a jury has acquitted a defendant of criminal conduct doesn’t end the risk that he or she will be punished for that conduct; so long as the defendant is convicted of any criminal offense, punishment for that offense can be enhanced to account for the conduct of which the person was acquitted. In 1997’s United States v. Watts, the Supreme Court in a summary per curiam opinion held that such enhancements do not violate the double jeopardy clause. Largely based on Watts, every federal court of appeals has rejected challenges brought under the Fifth Amendment due process clause and the Sixth Amendment’s jury trial guarantee. But some state courts have held the practice is unconstitutional, and a host of prominent jurists, including Justices Antonin Scalia, Ruth Bader Ginsburg, and Clarence Thomas, have criticized the practice.

After that single January relist, the court held those five cases for several months, apparently waiting to see whether the United States Sentencing Commission would act on a proposal that would have placed modest limits on the ability of federal sentencing judges to enhance sentences based on acquitted conduct. The Sentencing Commission recently decided not to act on that proposal this year, although it intends to try again next year. Some of the challengers argue that the Supreme Court should not wait for the Commission to act, because its proposals place only minor restrictions on the practice, and most acquitted-conduct sentences are imposed in state courts beyond the reach of the Commission. Moreover, the challengers note, the federal government argues that the Commission lacks authority to place restrictions on acquitted-conduct sentencing, because 18 U.S.C. § 3661 bars the imposition of restrictions on the information about the background and conduct of defendants that courts can consider.

The Supreme Court has relisted those original five cases a second time now. And they are joined by an additional eight cases raising the same (or closely analogous) issues. We’ll find out soon how lucky these 13 petitions are.

The next order list will be Tuesday morning, May 30, when I just happen to have something else of even more importance to attend to.  Since I will likely be unable to blog for most of Tuesday, I have already predicted to some colleagues that there will be all sorts of SCOTUS acquitted-conduct action that day.  We shall see, and I will surely get to catch up on blogging at some point.

A few recent of many, many prior related posts:

• "Acquitted Conduct Should Not Be Considered At Sentencing"
• Split Michigan Supreme Court finds due process precludes use of acquitted conduct at sentencing 
• "Acquitted. Then Sentenced."
• NJ Supreme Court holds, as a matter of state constitutional law, that "fundamental fairness" precludes sentence enhancement based on acquitted conduct 
• Might SCOTUS finally be ready to take up acquitted conduct sentencing enhancements?
• Hoping and pushing for SCOTUS finally taking up acquitted conduct sentencing enhancements 
• After US Sentencing Commission deferred on issue, Supreme Court back to conferencing acquitted conduct cases 

New report examines "The Opioid Epidemic and Homicide"

The Harry Frank Guggenheim Foundation has released this notable new report titled "The Opioid Epidemic and Homicide" authored by Joel Wallman, Richard Rosenfeld, and Randolph Roth. Here is the 20-page report's executive summary:

The twenty-five-year epidemic of opioid misuse in the United States has taken at least 750,000 lives through overdose. We undertook to learn whether this toll might have been accompanied by an increase in violence resulting from growth in the illicit opioid market, which, like most illicit drug markets, includes a risk of violence due to conflicts among sellers and between sellers and buyers.  We found that increases in activity in this market were associated with — and arguably caused — increased levels of homicide.

Using county opioid overdose rates as a measure of levels of transactions in the illicit market, we looked for an association between those rates and county homicide rates between 1999 and 2015.  As the epidemic has been especially intense in the White U.S. population, we conducted separate analyses for the White and Black populations. We also compared Appalachian counties to the rest of the country, as Appalachia has been particularly hard hit by the crisis.

In the nation as a whole, White overdose rates in this period were 28 percent higher than Black rates.  The growth in overdose rates differed markedly between the two groups: 34 percent for Blacks and 120 percent for Whites.  Black overdose rates did not differ between Appalachian and non-Appalachian counties.  The White overdose rate, however, was both considerably higher in Appalachia than elsewhere (23.5 vs. 19 per 100,000) and much higher than the Black Appalachian rate (14.5).  The growth in overdose rates was much higher for both groups within Appalachia than elsewhere: 58 percent vs. 32 percent for Blacks and 146 percent vs. 115 percent for Whites.

Despite this growth in overdose rates during the period, homicide rates declined for both groups and in both Appalachian and non-Appalachian counties.  This means that the aggregate effect of all the factors influencing U.S. homicide rates was a beneficial one.  However, to discern the independent association (if any) between changes in activity in the illicit-opioid market and changes in homicide rates, we conducted a series of multiple regression analyses.  We found a positive association between overdoses and homicides in both racial groups and both within and without Appalachia.  Holding constant several other variables known to be associated with homicide rates, we found growth in overdose among Whites in this period was associated with a 9-percent increase in homicide across all counties and a 19-percent increase within Appalachia.  The equivalent figures for Blacks were 3.5 and 16.

Assuming these associations reflect a causal relationship, we conclude that this growth in illicit opioid activity exerted upward pressure on rates of violence; were it not for the violence associated with the opioid market, the national drop in killings would have been greater.  The finding of another harm wrought by the opioid epidemic provides another reason to pursue vigorous public-health efforts, with a strong emphasis on treatment, to stem the epidemic.

Former Alabama Govs now urge the commutation of most of Alabama's death row

Through this recent Washington Post opinion piece, headlined "We oversaw executions as governor. We regret it.", former Alabama governors Robert Bentley and Don Siegelman explain why they would now be eager to commute most of the state's death row. Here are excerpts from the start and end of the piece:

Alabama has 167 people on death row, a greater number per capita than in any other state. As far as the two of us are concerned, that is at least 146 people too many. Here’s why.

As former Alabama governors, we have come over time to see the flaws in our nation’s justice system and to view the state’s death penalty laws in particular as legally and morally troubling. We both presided over executions while in office, but if we had known then what we know now about prosecutorial misconduct, we would have exercised our constitutional authority to commute death sentences to life....

As governors, we had the power to commute the sentences of all those on Alabama’s death row to life in prison. We no longer have that constitutional power, but we feel that careful consideration calls for commuting the sentences of the 146 prisoners who were sentenced by non-unanimous juries or judicial override, and that an independent review unit should be established to examine all capital murder convictions.

We missed our chance to confront the death penalty and have lived to regret it, but it is not too late for today’s elected officials to do the morally right thing.

This piece perhaps provides yet another data point in support of the so-called "Marshall hypothesis," the idea Justice Thurgood Marshall articulated in his Furman opinion that persons learning more about the administration and effects of capital punishment will come to reject it.  It also provides another data point for the reality that it seems much easier for politicians to turn against the death penalty once they are former office holders.

Deep dives in "back-end" sentencing problems in two east coast states

Today brought the release of two notable reports on problematic back-end sentencing practices in two states.  Both reports merit more careful attention that this one post can provide, but here are the basics:

From the Prison Policy Initiative, "Excessive, unjust, and expensive: Fixing Connecticut's probation and parole problems."  A snippet:

This report provides lawmakers and advocates fundamental information to advance essential probation and parole reforms in Connecticut, changes that will reduce unnecessary incarceration and supervision; increase fairness, justice, and public safety; and save taxpayer dollars and other resources.  The report reviews the policies and data related to community supervision and technical violations in Connecticut and describes concrete ways to improve these systems. It also gives an overview of New York’s recent parole reforms, with recommendations for lawmakers and others working to shape meaningful legislation in Connecticut and beyond.. Given the immediate and ongoing signs of success in New York, any state can look to the provisions of the Less Is More Act to help determine ways to reduce excessive supervision and incarcerated populations.

What follows is a deep dive into the policies and practices that entangle too many people in the web of ongoing supervision and cycles of imprisonment in Connecticut. Those who are on probation and parole live in fear of arrest and incarceration for nearly any action that could constitute a violation — a gross misuse of resources and a disservice to families in Connecticut.  By allowing people to remain in their communities, the state can better provide residents the help they may need in the place where they’re most likely to succeed. Connecticut has a momentous opportunity to reshape the probation and parole systems and deliver racial, economic, and procedural justice to people under supervision.

From the Justice Policy Initiative, "Safe at Home: Improving Maryland’s Parole Release Decision-Making." A snippet:

This document highlights the best available research and practice in the parole field and provides recommendations for improvements to Maryland’s parole decision-making process. To develop these recommendations, JPI consulted with experts who provide technical assistance to states looking to improve their parole practices, reviewed research on parole practice and outcomes, spoke with attorneys who assist individuals applying for parole, consulted with family members and individuals who have experience with the Maryland parole system, and examined best practices in parole in other states to identify areas of needed improvement in Maryland....

The parole grant rate decreased between 2020 and 2021 despite the emergence of COVID-19 in early 2020.  Many jurisdictions around the country expedited the release of individuals from prison to reduce the spread of the virus. This was typically accomplished by moving up parole eligibility by months and expanding the number of people eligible for a hearing.  However, Maryland data reveal sharp declines in newly eligible individuals, hearings, and the releases granted.

Grant rates in Maryland follow a bell curve pattern. Emerging adults (25 years of age and younger) report a grant rate of 37 percent.  The rate increases to a high of 43 percent for people between the ages of 31 and 35, steadily declining as individuals age. People over 60 are paroled at a rate of 28 percent.  Parole grant rates that decline with age run counter to everything we know about trends in criminal offending.  Crime is a young person’s endeavor, and the likelihood of reoffending drops precipitously after age 40.  

Fascinating tale of a singular federal prosecution (and notable sentencing) of DC marijuana distributors

A helpful reader made sure I did not miss this new and lengthy story from the Washington Post concerning a federal prosecution and sentencing of modern marijuana offenders.  The full headline highlights some of the notable particulars: "D.C. legalized weed. A marijuana delivery service was indicted anyway.  A judge refused to hand out prison sentences and urged officials to resolve the tension between local legalization and federal prohibition."  I recommend the story, which defies easy summary in full to anyone interested in marijuana reform and prosecutorial (and judicial) decisions issues.  Here are just some snippets:

Connor Pennington always knew he would start his own business, though he wasn’t sure what type....  When nearly 65 percent of D.C. voters approved Initiative 71 in 2014, legalizing the recreational use of marijuana, the 29-year-old found “what I truly believe is my calling,” he said: distributing pot.  He named the company Joint Delivery.

Although he knew marijuana sales were illegal under federal law, Pennington created a website where customers could place orders, and he had delivery workers fan out daily in bikes or cars.  Hoping to create a professional atmosphere, he hired middle managers and a full-time accountant.  The company generated at least $4 million in sales from 2017 to 2022, according to court records....

In July 2022, Pennington, two younger brothers he had hired and five Joint Delivery managers were indicted — the first and so far only D.C. marijuana dispensary to face federal prosecution since Initiative 71 passed. In a related case, Pennington’s accountant was charged with money laundering....

“This is a strange kind of case, because the substance that’s involved is legal in many, many states now. It’s not in the federal system,” U.S. District Judge Leonie M. Brinkema said at a hearing May 2. “This disparity has got to get worked out soon because it creates a crazy situation in the law enforcement area.”

The DEA twice raided Joint Delivery’s offices in D.C. last year, finding cash, marijuana and cannabis products, according to the indictment.  All nine defendants pleaded guilty to money laundering or conspiring to distribute a dangerous substance and were ordered to forfeit the money they earned.

But they never set foot in a D.C. courthouse, and none went to prison.  The top federal prosecutor in the District, U.S. Attorney Matthew M. Graves, declined to prosecute Joint Delivery and generally does not seek charges against any of the dozens of marijuana “gifting” shops and delivery services in the city, despite occasional police raids, according to U.S. officials and defense attorneys involved in the Joint Delivery case.

Instead, all the charges against Pennington and his employees were filed by the U.S. attorney’s office for the Eastern District of Virginia (EDVA), led by Jessica D. Aber.  Prosecutors said they had jurisdiction mainly because much of the money laundering occurred in Northern Virginia.  But legal experts and the judge who handled most of the case said they were puzzled by the move, because the drug distribution that prosecutors described happened in D.C.

“I don’t think this case truly belonged here,” Brinkema said at a hearing in Alexandria federal court on Jan. 6, after chiding a prosecutor in Aber’s office for seeking a “completely inappropriate” sentence of four years and nine months in prison for one of Pennington’s shift managers, Robert Spear, who was 27 years old at the time.

The judge sentenced all of those indicted to terms of supervised release of two or three years. “It was always amazing to me that the District of Columbia, where this business essentially was, was not interested in the prosecution of this case,” Brinkema said at one of the final sentencings.

"Calculating Torture: Analysis of Federal, State, and Local Data Showing More Than 122,000 People in Solitary Confinement in U.S. Prisons and Jails"

The title of this post is the title of this notable new report from the group Solitary Watch.  Here is the report's introduction (with cites removed):

Solitary confinement is a torturous and deadly practice.  Prisons, jails, and detention centers inflict solitary confinement disproportionately on Black people, Latino/a/x people, Native people, and other people of color.  Decades of research have attested to the lived experience of people who have been incarcerated and their loved ones, corroborating that solitary causes devastating harm to physical, mental, and behavioral health and is counterproductive to any goals of safety.  Any length of time in solitary confinement — days, or even hours at a time —can have severe consequences.

While there has been a growing recognition of the need to end solitary confinement, and some groundbreaking policy changes have shown movement in that direction, the use of solitary confinement in prisons, jails, and detention centers across the United States remains common and widespread.

This report provides the first ever comprehensive accounting of the total use of solitary confinement in both prisons and jails across the United States.  Analysis of data recently released by the federal Bureau of Justice Statistics (BJS) and by two state prison systems that did not report to BJS, as well as data from a survey of local jails conducted by the Vera Institute of Justice, reveals that state and federal prisons and local and federal jails in the U.S. have reported on a given day locking a combined total of more than 122,000 people in solitary confinement for 22 or more hours.

These newly available numbers come closer than have any previously published figures in accounting for the number of people in solitary confinement. Yet they still undoubtedly undercount the number of individuals who experience solitary and the number impacted by it.

To begin with, the numbers are self-reported by correctional systems.  Further, they cover only solitary confinement that involves being locked in a cell 22 or more hours a day.  They do not include various informal or transient forms of solitary confinement such as group lockdowns or quarantines, nor do they include so-called alternatives that amount to solitary by another name.

In addition, the figures represent a snapshot of the number of people in solitary confinement at a given moment in time, while many times that number are locked in solitary during the course of a year.

Moreover, the numbers include only people in prisons and jails. Immigration detention facilities lock people in solitary confinement nearly 9,000 times a year, and children and other young people in youth facilities continue to be subjected to solitary. 

Even given all these excluded factors, the numbers far exceed those of other recent counts, which, in the absence of more comprehensive figures, have been widely quoted by media outlets and even scholars and advocates. 

Solitary Watch has been investigating and documenting the widespread use of solitary confinement for more than a dozen years to increase awareness of and accountability for this humanitarian crisis.  The Unlock the Box Campaign and activists across the country have been urging policy makers at the local, state, and federal levels to build on recent efforts to end or limit the use of solitary and to take much more substantial action to significantly reduce or eliminate its use.  Together, we believe that accurate information — including the most comprehensive possible count of the numbers of people in solitary confinement — is critical to creating change.

Extended discussion of issues surrounding upcoming federal sentencing of Oath Keepers

Over at Lawfare, Roger Parloff has this remarkable new piece titled "Should Nine Oath Keepers Receive Terror-Enhanced Sentences?". This lengthy piece examines an array of intricate sentencing issues and it starts this way:

This week, a federal judge will begin handing down sentences for nine members of the Oath Keepers paramilitary group for their roles in the Jan. 6 insurrection, including six convicted of seditious conspiracy.  The government seeks 25 years imprisonment for the group’s founder and leader that day, Elmer Stewart Rhodes III, and sentences ranging from 10 to 21 years for the other eight.  Six of those sentences, if imposed, would become the longest to date for any Capitol Siege rioter.

The sentences, which will be imposed by U.S. District Judge Amit Mehta of Washington, D.C., raise difficult questions with no close precedents.  Although at least 15 people have been sentenced for seditious conspiracy since the U.S. Sentencing Guidelines took effect in 1987, all previous cases involved people prosecuted for conduct “tantamount to waging war against the United States,” a term of art in the sentencing guidelines that the government concedes is not met here.

Among many other items noted, this piece notes that, in some of these cases, federal prosecutors are seeking enhanced punishment based on acquitted conduct:

Three of the nine defendants being sentenced were acquitted of seditious conspiracy.  One of those defendants was actually acquitted of all three conspiracy counts charged. Yet, for sentencing purposes, the government treats those three the same as if they’d been convicted of all counts.

It is true that under controlling D.C. Circuit precedent, a sentencing judge can take into account conduct for which a defendant has been acquitted if the judge believes the conduct was nevertheless proven by the lower preponderance-of-the-evidence standard — which is all that is required for sentencing purposes.  Nevertheless, as I’ll discuss later, I will be surprised if Judge Mehta effectively overrides the jury verdict in this manner....

Absent the conspiracy allegations of which Caldwell was acquitted, Caldwell’s acts would have most likely resulted in either no charges at all or class A misdemeanor charges carrying a maximum one-year jail term. Yet the government seeks 14 years imprisonment for him — just two months less than career criminal Schwartz received for, inter alia, four assaults with a dangerous weapon on police officers.

Prior related post:

• Big spread in sentencing recommendations for Oath Keepers founder convicted of seditious conspiracy 

"Risk Averse and Disinclined: What COVID Prison Releases Demonstrate About the Availability of the United States to Reduce Mass Incarceration"

The title of this post is the title of this notable new report authored by Julia Laskorunsky, Kelly Lyn Mitchell and Sandy Felkey Mullins released today by the Robina Institute of Criminal Law and Criminal Justice. Here is the Executive Summary from the 70+ page report:

This report examines the challenges and opportunities that states faced in deciding whether to release people from prison during the COVID-19 pandemic.  It focuses on the legal mechanisms available to jurisdictions and the factors that influenced whether they were willing or able to use those mechanisms to release people from prison.

Our goal is to illuminate whether back-end release mechanisms can be used to reduce prison populations that have been bloated by the policies of the mass-incarceration era or whether relief from mass incarceration must take some other form.

The report presents case studies of six states — Alabama, Illinois, Kansas, Minnesota, Pennsylvania, and Washington — to gain a more in-depth view of how events unfolded during the pandemic.  Overall, our study found that the number of individuals released early from prisons during the pandemic was limited due to a variety of factors, including politics, risk-averse decision-making, shifting external pressures, the limited scope of compassionate and medical release statutes and the use of discretion to deny release.  In addition, few changes to policy or practice that occurred during the pandemic had a lasting impact on back-end release practices.

We conclude that the back-end release mechanisms offer only a modest opportunity to reduce mass incarceration, and the current system is unlikely to make a substantial difference in addressing mass incarceration due primarily to risk aversion.  Instead, state-level carceral policies that focus on diffusing responsibility for back-end release and that reduce incarceration in the first place have the greatest chance of achieving long-term reductions in prison populations.

Marijuana legalization in Minnesota includes creation of expungement board to aid reforms and collect data

In a couple of articles (see here and here, also flagged below), I have advocated that modern marijuana reform efforts should include the creation of a new criminal justice institution, which I have called a "Commission on Justice Restoration."  As explained most succinctly in this commentary, I suggest this institution be funded by the taxes generated by marijuana reforms and be tasked not only with helping those previously convicted of marijuana offenses, but also with addressing the undue harms of a wide array of prior convictions.  In my vision, this Commission on Justice Restoration could assemble hard-to-collect data about convictions and collateral consequences, conduct and disseminate research on the fiscal and social costs of these collateral consequences, and advocate for legal and court reforms to advance sound record relief practices.

Sadly, no state has yet to embrace my vision for creating a Commission on Justice Restoration.  But, excitingly, the version of marijuana reform about to be signed into law in Minnesota (basics here) includes the creation of criminal justice reform infrastructure that certainly is in the spirit of my proposal.  Specifically, this reform law provides for the creation of what is called the Cannabis Expungement Board, which is described a bit at this new official Minnesota website:

The legislation calls for automatically expunging low-level cannabis convictions and for creating a Cannabis Expungement Board, which will review felonies for expungement or resentencing.  Expungement seals a person’s conviction record, making the record not publicly accessible from the Bureau of Criminal Apprehension. Sealing records is intended to remove barriers for people with cannabis-related offenses who are subject to a background check for a job or housing....

The Cannabis Expungement Board will consist of the following members:

• the Chief Justice of the Supreme Court or a designee
• the Attorney General or a designee
• one public defender, appointed by the Governor upon recommendation of the State Public Defender
• the Commissioner of Corrections or a designee
• one public member with relevant experience, appointed by the Governor

This local press piece provides some more details about the remedial marijuana efforts called for in the new Minnesota law:

What crimes would be expunged under the bill?

Minnesotans with misdemeanor marijuana charges would see their records cleared, and a new Cannabis Expungement Board would evaluate expungement for felony marijuana crimes on a case-by-case basis.

How many Minnesotans would be eligible for expungement?

More than 60,000 misdemeanor marijuana cases would be eligible for automatic expungement when the bill is signed into law, the Minnesota Bureau of Criminal Apprehension (BCA) estimates.  That includes cases the defendant won or had dismissed, wiping out all records of offenses from arrest to sentencing.  The BCA told lawmakers that it could take the agency up to a year to finish expunging all of the misdemeanor records.

The BCA doesn't have an estimate for the number of felony-level marijuana cases that would qualify for review by the Cannabis Expungement Board, a spokeswoman said.  That's because the state's criminal history system is unable to sort felony-level drug cases by the type of drug that was used.  A manual review of felony cases would be required.

I am going to be very interested in following the work of Minnesota's Cannabis Expungement Board.  Perhaps if all goes well, Minnesota might give this board responsibility to advance expungements and resentencings more generally.

Prior related writings:

• "Leveraging Marijuana Reform to Enhance Expungement Practices" (from 2018)
• "How States Can Ensure That Today's Marijuana Reforms Also Ameliorate Harms Inflicted on Past Offenders" (from 2018)
• "Ensuring Marijuana Reform Is Effective Criminal Justice Reform" (from 20202)

Based on state's new Racial Justice Act, state judge throws out gang enhancements after finding “significant statistical disparity”

This local article, headlined "Judge finds Contra Costa DA’s filing practices are racist, dismisses gang charges in murder case," reports on an interesting new ruling from a California state judge relying on an interesting new California law. Here are some details:

In an unprecedented ruling statewide, a Contra Costa judge on Friday dismissed gang charges against four men under the California Racial Justice Act, ruling that county prosecutors have disproportionately targeted Black people with sentencing enhancements that open the door for life in prison without parole.

It is a case already under heavy scrutiny because two of the defendants were directly referenced in racist text messages sent by Antioch police officers who investigated their alleged crimes. The texts — part of a much larger scandal involving racism, alleged civil rights violations and dozens of impugned officers — made light of injuring the men during their arrests and referred to Black people in explicitly biased, hateful ways.

Contra Costa Judge David Goldstein’s Friday ruling did not take into consideration any of the racist texts. Rather, Goldstein based it on a decade of data — what he called a “significant statistical disparity” — showing that gang charges are more often filed against Black people. The stunning development clears the way for any Black person who has faced or is facing those charges in Contra Costa over the past decade to challenge them in court....

In making his decision Friday, Goldstein relied on data that both prosecutors and defense attorneys largely agreed upon that showed that Black people were from 6 to 8 percent more likely to be charged with “special circumstance gang enhancements” than people who weren’t Black.  Those enhancements, alleging gang membership and added on top of the underlying criminal charges at issue in a case, can greatly increase the sentence a defendant receives.

Goldstein threw out the gang enhancements against four East Bay men — Eric Windom, Terryon Pugh, Keyshawn McGee and Trent Allen — who are accused of fatally shooting a man to benefit an Oakland gang.  His ruling does not affect the murder, attempted murder and conspiracy counts against them.

Friday marks the second time that prosecutors in Contra Costa have made California history for violating the Racial Justice Act.  Last October, Judge Clare Maier ruled that a county prosecutor used “racially coded language” that “evoked racial stereotypes of African American men” during a two-defendant murder trial and threw out murder convictions for both men.

Maier’s ruling dealt specifically with a portion of the act that refers to the prosecution’s statements during trial, while Goldstein’s ruling cited a different subsection that covers the charging practices of an entire DA’s office.

Evan Kuluk, a lawyer with the county’s Alternate Defender’s Office and an attorney in both cases, told this news organization that “the impact of today’s ruling is an acknowledgement that racial bias infects every stage of the criminal legal process.”

Goldstein’s ruling calls into question dozens of other similar cases filed in Contra Costa, going back 10 years. Contra Costa DA Diana Becton — the first Black person and first woman ever to serve in that role in the county’s 173-year history — says her office now plans to look back at some of those cases with this new ruling in mind....

For many defense attorneys in Contra Costa, Friday’s ruling was a seen as vindication after years of calling on Contra Costa prosecutors to audit their own filing decisions.  In 2019, Becton partnered with the Vera Institute for a project intended to identify implicit bias in the way cases are prosecuted but has yet to release the underlying data.  Chief Public Defender Ellen McDonnell said Goldstein’s ruling “drives home the unfair charging practices that too often result from the role of implicit bias in our legal system.”

A (first) weekend plug for Season 1 of "Drugs on the Docket" podcast

In this Monday post, I flagged that the Drug Enforcement and Policy Center at The Ohio State University released Season One of a new podcast, "Drugs on the Docket."  As mentioned there, all six episodes of this first season are now available on Apple Podcasts, Google Podcasts and YouTube.   

In my (admittedly biased) view, the various curated discussions in this "Drugs on the Docket" podcast are all quite interesting and informative.  And because I am quite eager to see this podcast develop and audience (and also because my colleagues at DEPC have worked remarkably hard to put this content together), I am sure to keep using this space to encourage everyone to check out the first set of episodes.  

Once again, here is how the podcast subject matter is described via this podcast webpage:

Drugs on the Docket is a production of the Drug Enforcement and Policy Center (DEPC) at The Ohio State University. Each episode explores how U.S. court rulings — primarily those handed down from the Supreme Court — impact drug law and policy and continue to shape the War on Drugs.  Drugs on the Docket unpacks various ways courts have engaged with and responded to the opioid epidemic, police discretion, the sentencing disparities between crack and powder cocaine, and more.  The series, hosted by Hannah Miller, invites guests with expertise in criminal justice, drug policy, and drug enforcement to help us break down the sometimes complex and always interesting stories behind today’s drug law landscape.

Drugs on the Docket is produced by DEPC’s Service Engagement Project Manager Hannah Miller and Public Engagement Specialist Holly Griffin.  DEPC Executive Director Douglas A. Berman is our editorial advisor.  Music by Joe DeWitt.

Check it out, makes for great weekend listening.

"The Public Voice of the Defender"

The title of this post is the title of this new article available via SSRN authored by Kay Levine and Russell M. Gold.  Here is its abstract:

For decades police and prosecutors have controlled the public narrative about criminal law — littering the news landscape with salacious stories of violent crimes while ignoring the more mundane but far more prevalent minor cases that clog the court dockets.  Defenders, faced with overwhelming caseloads and fear that speaking out may harm their clients, have largely ceded the opportunity to offer a counternarrative based on what they see every day. Defenders tell each other about overuse of pretrial detention, intensive pressure to plead guilty, overzealous prosecutors, cycles of violence, and rampant constitutional violations — all of which inflict severe harm on defendants and their loved ones.  But defenders rarely show the public the world they inhabit.

That approach hasn’t stopped the carceral state from ballooning over the past fifty years; public defense budgets remain paltry, and clients suffer from too much law and too little justice in a system that disregards and dehumanizes them.  This Article encourages defenders to go on the offensive, to seek transformative change toward a more just legal system.  It builds on the social media literature to analyze how defenders can strategically use social networking sites to add their expertise to ongoing public debates about crime and criminal justice policy.  As a few existing efforts suggest, social media enables defenders to widely share the routine injustices they observe and to engage with local grassroots organizations to build coalitions.  Defenders’ strategic use of social media won’t change policies overnight, but we are hopeful that it will augment public support for defenders and their clients and build power to transform the criminal legal landscape over decades.

Minnesota through new legislation becomes 28th state to prohibit juve LWOP

Via email from The Campaign for the Fair Sentencing of Youth, I learned this afternoon that "Minnesota has officially become the 28th state to ban juvenile life without parole as an omnibus public safety bill (SF 2909) was signed by Minnesota Governor Walz after passing through the Minnesota Senate and House of Representatives." This Equal Justice Initiative piece provides some details and context:

Minnesota lawmakers this week abolished life imprisonment without parole for children. The reform is part of a public safety bill designed to transform the state’s approach to children accused of criminal offenses.

The bill not only retroactively eliminates juvenile life-without-parole sentences but also provides that children sentenced in adult court will be eligible for supervised release after at least 15 years in prison.

A newly created Supervised Release Board will be required to consider an expert assessment of the individual’s cognitive, emotional, and social maturity as well as relevant science on children’s neurological development.

Approximately 40 people will be eligible for review, University of Minnesota law professor Perry Moriearty told the Star Tribune.

The new law also creates a statewide Office of Restorative Practices to promote alternative, community-based approaches to hold children accountable, respond to victims’ needs, and address the issues underlying children’s behavior.

State grants will be provided to counties to develop local restorative justice initiatives, such as victim-offender dialogues and family group conferences, with input from parents, youths, school administrators, county prosecutors, and local law enforcement.

LawProf Mark Osler has this Twitter thread about the public safety bill that was just signed into law in Minnesota, and it highlights some other interesting sentencing features (among many others):

The bill restructures clemency. Among other features, the Pardon Board (the Gov, AG & Chief Justice) can grant clemency by a 2-1 vote with the gov in the majority. Previously, it required a unanimous vote. It also establishes a clemency commission to evaluate cases....

Adds members to the board of public defense and to the sentencing commission (including a formerly incarcerated member)....

Creates an avenue for prosecutor-initiated re-sentencing.

Caps probation at 5 years, and makes that cap retroactive for those already sentenced....

Establishes good-time credits for those in prison who pursue programming and education (up to 17% of a sentence can be earned), on top of the 1/3 of sentences that already are presumptively on supervised release.