Sentencing Law and Policy

"The Trouble with Reentry: Five Takeaways from Working with People Returning to Chicago from Prison"

The title of this post is the title of this notable new report from the John Howard Association. Here is part of its executive summary: nbsp;

With political backing and public will, a new reentry system can and should be built.  A foundation is currently being laid through public-private partnerships that recognize the importance of meeting the basic needs of people leaving the justice system and going back to their communities. But for such a system to succeed, it ultimately must be grounded in the principle that“[t]he dignity of the individual will flourish when the decisions concerning his life are in his own hands, when he has the assurance that his income is stable and certain, and when he knows that he has the means to seek self-improvement.”

Over the last several months, John Howard Association of Illinois (JHA) staff had occasion to learn from several young adults (all black men in their early twenties) as they attempted to navigate the world of reentry services, mandatory supervised release and reintegration back into impoverished communities in Chicago after being imprisoned for several years in both Illinois Department of Juvenile Justice (IDJJ) youth centers and Illinois Department of Corrections (IDOC) adult prisons.  Our final impression from this experience is profound skepticism at the ability of the existing reentry framework to stem the continuous cycle of people exiting and returning to jail and prison. Both conceptually and in execution, reentry as a societal project — at least in its current incarnation — does not begin to adequately address even the most basic human needs (shelter, clothing, transportation, food, medication) of returning citizens.  That being said, we were moved and inspired by the patience, dedication and sacrifices of many on-the-ground direct service reentry workers and organizations that we encountered, who tirelessly work to triage and assist an onslaught of returning citizens with desperate needs— despite inadequate resources, unreliable funding streams, and myriad bureaucratic obstacles.

Following herein are some of JHA’s real-world observations made in the process of accompanying and, at times, endeavoring to assist people as they attempted to access critical reentry supports, resources and services following their release from prison.  These five key takeaways are based on our on the ground experience navigating reentry programs and opportunities with these young men shortly after their release from prison.  This list is in no way comprehensive or exhaustive.  Rather, it highlights just some of the more immediate, pressing needs and problems that the young men whom JHA met as they left prison experienced during their first few months after leaving prison.  There were also some bright, hopeful encounters along the way. In particular we met some extraordinary, persevering, compassionate, tireless reentry workers who are dedicated to assisting people returning from prison.  Our dive into the reentry process on the whole, however, illuminated some large gaps that exist for returning citizens trying to succeed.

All the testimony from House subcommittee hearing on FIRST STEP Act

As noted in this prior post, the US House of Representative's Subcommittee on Crime, Terrorism, and Homeland Security (of the Committee on the Judiciary) this afternoon held an Oversight Hearing on the "Federal Bureau of Prisons and Implementation of the First Step Act."  Now on this House webpage are links to all the witness written testimony. I have not yet had time to review any of this while on the road, but I welcome reader help in identifying highlights:

Panel One: 

The Honorable Kathleen Hawk Sawyer Ph.D 
Director, Federal Bureau of Prisons, Washington, DC, on behalf of U S Department of Justice

• Witness Statement

Ms. Antoinette Bacon Esq. 
Associate Deputy Attorney General Office of the Deputy Attorney General, U S. Department of Justice, Washington, DC

• Witness Statement

 

Panel Two: 

Mr. David Patton Esq. 
Executive Director, Federal Defenders of New York

• Witness Statement

Ms. Melissa Hamilton Ph.D 
Reader of Law & Criminal Justice, University of Surrey School of Law

• Witness Statement

Mr. John Walters 
Chief Operating Officer, Director, Hudson Institute Political Studies, Center for Substance Abuse Policy Research Hudson Institute

• Witness Statement

Ms. Andrea James Esq. 
Founder and Executive Director, National Council on Incarcerated and Formerly Incarcerated Women

• Witness Statement

Bold goal for the REFORM Alliance: "get 1 million people out of the criminal justice system in five years"

In this post earlier this year, I blogged about the celebrities and business leaders coming together to form the REFORM Alliance, which is committed to "dramatically reduce the number of people who are unjustly under the control of the criminal justice system – starting with probation and parole."  I have long had great respect for the commitment and vision of this group, but I was especially exciting to see this press article discussion a bold goal for the Alliance.  The piece is headlined "Inspired by Meek Mill, Michael Rubin sets a goal: Get 1 million people out of the criminal justice system," and here are excerpts:

Michael Rubin first encountered the criminal justice system when he saw rapper Meek Mill sentenced to prison for a violation of his probation. “That was a life-changing moment for me," Rubin said.

Speaking at the B.PHL Innovation Festival in the Entercom media headquarters Tuesday, Rubin explained how that moment sparked a movement.  The billionaire entrepreneur made it his mission to get Mill out of prison and, following a massive public outcry and social media campaign (#FreeMeek), he was released after five months.

Now, Rubin and Mill, who have been close friends for years, are working to transform the criminal justice system. In January, Rubin and Mill founded The REFORM Alliance, a partnership of titans in the entertainment, sports and business worlds.  They’re focusing on disrupting the probation system, which oversees 180,000 people in Pennsylvania alone, according to federal figures.

The REFORM Alliance is pushing to change Pennsylvania law to reduce the number of years people can stay on probation and to ensure people can’t be sent back to prison for technical violations.  About one in four prison admissions nationwide are due to probation violations, according to a study by the Council for State Governments Justice Center.

Pennsylvania is just the first step for the REFORM Alliance.  Rubin said the organization’s nationwide mission is to get 1 million people out of the criminal justice system in five years.  Nationwide, there are more than 4.5 million on probation and parole. “One million is a gigantic number,” Rubin said.  But he added, “I’m going to be unrelenting until we accomplish that.”...

Rubin’s got the money and the message to make a difference.  He’s the founder and CEO of Kynetic, the firm which owns online retailers Fanatics, Rue La La and ShopRunner.  He’s also a partner of the Philadelphia 76ers and a minority owner of the New Jersey Devils.

He lined up heavy hitters to build REFORM.  Other founding partners include hip-hop superstar and entrepreneur Jay-Z, New England Patriots owner Robert Kraft and Robert Smith, founder and CEO of Vista Equity Partners and the richest black man in America.  Rubin tapped political activist Van Jones to serve as the CEO of REFORM.  The group now has more raised than $50 million and is working to convince lawmakers and voters of the need for change.

Large group of US Senators re-introduce bill to create National Criminal Justice Commission

As detailed in this press release from the office of U.S. Senator Gary Peters, a sizable group of Senators have reintroduced a criminal justice reform bill that I have long viewed as worthwhile. Here are excerpts from the release:

U.S. Senators Gary Peters (D-MI), Lindsey Graham (R-SC) and John Cornyn (R-TX) [Wenesday] announced the reintroduction of the National Criminal Justice Commission Act, bipartisan legislation that would task a National Criminal Justice Commission to assess the entire system and propose reforms to address the most pressing issues facing the nation’s criminal justice system....

The full list of bipartisan cosponsors for this bill includes Senators Debbie Stabenow (D-MI), Roy Blunt (R-MO), Catherine Cortez Masto (D-NV), Susan Collins (R-ME), Kamala Harris (D-CA), Shelley Moore Capito (R-WV), Tammy Baldwin (D-WI), Marco Rubio (R-FL), Tim Kaine (D-VA), John Kennedy (R-LA), Bob Casey (D-PA), Robert Menendez (D-NJ) and Martin Heinrich (D-NM).

The legislation would create a 14-member, bipartisan National Criminal Justice Commission charged with completing an 18-month, comprehensive review of the national criminal justice system, including federal, state, local and tribal criminal justice systems, and issuing recommendations for changes in oversight, policies, practices and laws to reduce crime, increase public safety and promote confidence in the criminal justice system.

The Commission would be made up of Presidential and Congressional appointees, including experts on law enforcement, criminal justice, victims’ rights, civil liberties and social services.  Peters, Graham and Cornyn previously introduced similar legislation to establish a National Criminal Justice Commission.  Their legislation passed the Senate in December 2018.

The transparent and bipartisan National Criminal Justice Commission would also provide a better understanding of community relationships with law enforcement and the administration of justice through our court system, and identify effective policies to address a broad range of issues in the criminal justice system including crime reduction, incarceration and prisoner reentry.

The last comprehensive review of the criminal justice system was conducted in 1965 when President Lyndon Johnson created the Commission on Law Enforcement and Administration of Justice.  The 1965 Commission’s report offered over 200 recommendations that have shaped the current criminal justice system, including the creation of the 9-1-1 system establishment of research organizations like the Bureau of Justice Statistics and improved training and professionalization for law enforcement.

The National Criminal Justice Commission Act is supported by a broad coalition of criminal justice organizations, including law enforcement and criminal justice reform advocates.

"Work, Pay, or Go to Jail: Court-Ordered Community Service in Los Angeles"

The title of this post is the title of this notable new report coming from folks at UCLA.  This webpage provides this overview of the report's coverage:

Work, Pay, or Go to Jail: Court-Ordered Community Service in Los Angeles is the first study to analyze a large-scale system of court-ordered community service in the contemporary United States.  It finds that court-ordered community service functions as a system of unregulated and coercive labor, which worsens the effects of criminal justice debt and displaces paid jobs.

Among other discoveries, the report finds:

• Over 100,000 people in LA County register to perform mandated community service each year.  Because they are classified as volunteers, workers do not receive wages or labor protections from safety hazards, discrimination, or harassment.
• Workers face widespread barriers to completing their community service.  Over two thirds of people from criminal court and about two in five from traffic court did not complete their hours in time.  Their inability to finish often led to penalties that court-ordered community service was established to avoid.
• Community service annually supplants approximately 4,900 jobs in LA County, replacing 1,800 positions in the government sector alone.

Report authors recommend rolling back the threats of jail and court debt that force people into community service; expanding alternative sanctions that do not rely on forced, extractive labor; and transforming punitive mandatory community service into economic opportunity through paying jobs.

Usual suspects playing usual roles in Malvo argument over juve LWOP sentencing

In recent SCOTUS history, Eighth Amendment cases in the Supreme Court tended to be pretty predictable with certain Justices as regular votes for defendants, others as regular votes for the state, and Justice Kennedy (and sometimes the Chief Justice) being the key swing voter.  But Justice Kennedy is now gone, and it appear from this SCOTUS review of the oral argument in Mathena v. Malvo that Justice Kennedy's replacement, Justice Kavanaugh, may be slipping into the swinger shoes:

Kavanaugh asked both Heytens and Spinelli about the broader question of how courts should approach sentencing of juveniles.  If Miller and Montgomery require the sentence to consider a defendant’s youth to determine whether he is incorrigible (and therefore should be sentenced to life in prison without parole) or instead simply immature (and therefore should have at least the possibility of parole), Kavanaugh asked, would that requirement be satisfied by a discretionary regime that includes the defendant’s youth among the factors that the sentence must consider or that allows the defense counsel to raise the issue?  That proposal seemed to draw support from an array of justices, including Kagan, Justice Sonia Sotomayor and perhaps even Chief Justice John Roberts.

Over at Crime & Consequences, Kent Scheidegger has this accounting of possible head-counting:

I'm sure Justice Kagan would like the Court to just accept Montgomery's recasting of Miller on its face and endorse an intrusive rule for federal micromanagement of juvenile LWOP sentencing, just like the monstrosity we have for capital sentencing.  I would be surprised if she has a majority for that.  I think Justice Alito (and probably Justice Thomas) would like to overrule Montgomery.  I doubt they have a majority for that.  Justice Gorsuch seems inclined to a narrow reading of Montgomery, though, because a broad one would implicate the Apprendi rule.

Justices Ginsburg and Breyer question the Virginia Supreme Court's holding that the Virginia system actually was discretionary at the time of Malvo's sentencing.  The Fourth Circuit assumed that was correct.  They could send the case back to reconsider that point.

With this many splits among the Justices, there is no predicting the outcome.

The full transcript of the argument is available at this link.

House Judiciary subcommittee to hold oversight hearing on "Federal Bureau of Prisons and Implementation of the First Step Act"

As detailed at this link, the US House of Representative's Subcommittee on Crime, Terrorism, and Homeland Security (of the Committee on the Judiciary) has scheduled for the afternoon of Thursday October 17 an "Oversight Hearing on the Federal Bureau of Prisons and Implementation of the First Step Act."  The witness list is available at this link.

I am cautiously hopeful that this hearing will result in some significant new data and other information about FIRST STEP Act implementation effort, although this Bureau of Prisons webpage has been pretty good with some basic numbers.

Another LWOP federal drug sentence reduced under § 3582(c)(1)(A) after FIRST STEP Act

Regular readers may already be tired of many prior posts in which I have made much of a key provision of the FIRST STEP Act that now allows federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  But I continue to see value in highlighting developing jurisprudence under this provision largely because I think, if applied appropriately and robustly, this provision could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced.

Last week, I flagged in this post a notable recent ruling in US v. Brown, No. 4:05-CR-00227-1, 2019 WL 4942051 (S.D. Iowa Oct. 8, 2019), which rejected a § 3582(c)(1)(A) motion to reduce an extreme sentence for a federal drug offender.  Today, thanks to seeing this press report headlined "Judge in Oregon grants compassionate release for 76-year-old man serving life sentence for drug conspiracy," I can report on a successful § 3582(c)(1)(A) motion to reduce an extreme (LWOP) sentence for a federal drug offender.  The ruling US v. Soears, No. 3:98-cr-0208-SI-22, 2019 WL 5190877 (D. Ore. Oct. 15, 2019), is well described in the above-linked press piece:

A judge has ordered the release of a 76-year-old man who was sentenced to life and served nearly 21 years behind bars for running a large cocaine distribution ring, finding he meets the “extraordinary and compelling’’ reasons for compassionate release.

Despite objections from prosecutors, U.S. Judge Michael H. Simon found Adolph Spears Sr. suffers from potentially terminal health problems and is no longer a danger to the community. "In light of the age of Spears’ previous convictions, Spears’ age, and Spears’ physical and medical condition, the Court does not find that at this time Spears poses a significant risk to the community," Simon wrote in a 13-page opinion Tuesday.

The judge’s ruling is a direct result of changes to federal law from a criminal justice bill called the First Step Act, which passed late last year and allows federal courts to directly reduce sentences if an inmate meets the criteria for compassionate release....

Because of his medical problems, Spears was moved in May from the federal prison in Sheridan to the Butner Medical Facility in North Carolina. "While he has been at Butner, family members have made regular cross-country visits to see him, believing that each one may be the last," his defense lawyer Lisa Ludwig wrote to the court. "Allowing him to spend the time he has left being cared for by the family who loves him will be an act of compassion to Mr. Spears, but also to the family who cares so deeply for him."

Spears has multiple chronic serious medical ailments, a limited life expectancy and depends on a wheelchair to get around, according to one of his medical experts. He was diagnosed with an aggressive form of prostate cancer in June 2018. He also suffers from poorly controlled diabetes, cataracts, pain from spinal surgery, chronic kidney disease, limited mobility and difficulty swallowing. Three of his daughters, a daughter-in-law and granddaughters have offered to house Spears if he’s released and provide medical and financial support.

Spears submitted his release request to the prisons bureau on Sept. 13, the same day he filed a motion with the court. On Sept. 30, the prisons bureau denied Spears’ request, and said he could appeal or wait until 30 days after his initial request was made to file a motion with the court. The judge said he waited until Tuesday, more than 30 days after Spears made his request to the prisons bureau, to consider the motion.

The judge said Spears’ deteriorating physical health met the requirements for compassionate release, and said it appeared that the federal prisons bureau failed to consider anything beyond whether Spears had a terminal illness. The U.S. probation office, at the judge’s request, approved the home of one of Spears’ daughters for his release, finding her suitable as his caregiver.

Prosecutors had argued that Spears remains a danger, largely because he was convicted of a significant drug conspiracy and he possessed guns during his drug trafficking activities. He also previously was convicted of conspiracy to commit murder and was sentenced to 25 years after he offered a man $500 to burn down an IRS agent’s house while he was being investigated in 1978 for tax evasion, according to court records.

Federal prosecutors argued that Spears’ age and medical condition don’t render him "so incapacitated" that he couldn’t resume his criminal conduct, pointing out he was leading a drug ring in his late 50s. Simon said he took into account Spears’ criminal history but noted that Spears’ most recent drug conviction is more than 19 years old and his last conviction for a crime of violence is more than 40 years old.

It’s unlikely Spears would have faced as serious a sentence today if convicted of the same conduct, Simon noted. He was convicted of distributing crack cocaine when sentences for such drug crimes were much higher and judges had less discretion, Simon wrote. Since then, Congress has made changes to avoid sentencing disparities in such drug cases. The judge said he’ll order new conditions for Spears’ release and a lifetime of federal supervision.

Some prior related posts on § 3582(c)(1)(A) after FIRST STEP Act:

• Compassionate release after FIRST STEP: Should many thousands of ill and elderly federal inmates now be seeking reduced imprisonment in court? 
• Sad start to what should become happier compassionate release tales after passage of FIRST STEP Act 
• Encouraging new reports about encouraging new compassionate release realities thanks to FIRST STEP Act
• Highlighting how judges can now bring needed compassion to compassionate release after FIRST STEP Act 
• Federal judge pens extraordinary and compelling order requesting US Attorney to vacate old stacked 924(c) conviction in extraordinary and compelling case 
• Is anyone collecting and analyzing sentence reduction orders under § 3582(c)(1) since passage of the FIRST STEP Act?
• Good day for thinking hard about sentencing second looks and second chances
• New District Court ruling confirms that "any extraordinary and compelling reasons" can now provide basis for reducing imprisonment under 18 U.S.C. § 3582(c)(1)(A) 
• District Court finds statutory sentence reform among "extraordinary and compelling reasons" for reducing LWOP sentence under 18 U.S.C. § 3582(c)(1)(A) 
• Another notable (but ultimately disappointing) ruling about sentence reductions under § 3582(c)(1)(A) after FIRST STEP Act

Rounding up some previews of SCOTUS consideration of DC sniper Lee Malvo's juve LWOP sentence

Tomorrow afternoon, the US Supreme Court will hear oral argument in Mathena v. Malvo, a case that calls upon the Justice to continue struggling with the application of the Eighth Amendment limits on LWOP sentences that was set out in Miller v. Alabama and given retroactive effect in Montgomery v. Louisiana.  This SCOTUSblog page has links to all the briefing in this case and sets out this question presented as framed by the state of Virginia:

Whether the U.S. Court of Appeals for the 4th Circuit erred in concluding — in direct conflict with Virginia’s highest court and other courts — that a decision of the Supreme Court, Montgomery v. Louisiana, addressing whether a new constitutional rule announced in an earlier decision, Miller v. Alabama, applies retroactively on collateral review may properly be interpreted as modifying and substantively expanding the very rule whose retroactivity was in question.

The intricacies of this question presented highlights that the Justice could approach the Malvo case as a small technical matter only about the proper application of prior settled decisions.  But because the crimes of Lee Malvo were horrific and the rulings in Miller and Montgomery contentious, there are advocates who wonder and fear that certain Justices may be eager to use this case to cut back on the Court's recent Eighth Amendment jurisprudence.

I have seen a number of notable previews and commentary concerning the Malvo case, and here is a sampling:

• From Amy Howe at SCOTUSblog, "Argument preview: Justices to consider life-without-parole sentences for juveniles in D.C. sniper case"

• From Tom Jackman at the Washington Post, "Supreme Court to consider whether sniper Lee Boyd Malvo should be resentenced"

• From Andrew Cohen at the Brennan Center, "The Supreme Court Must Not Turn Back From Juvenile Sentencing Reform: The case of 'beltway sniper' Lee Boyd Malvo is poised to have a legal legacy far beyond his own."

• From Isa Farrington Nichols at Newsweek, "My Niece Was Murdered In The D.C. Sniper Shootings — but I Support Resentencing For The Teenager Who Killed Her"

• From Kent Scheidegger at Crime & consequences, "SCOTUS Hears D.C. Sniper, Jr. Case Tomorrow"

• From John Ellem at Bloomberg Law, "Listen to States on Child Sentencing, Bipartisan Legislators Tell High Court"

• By RJ Vogt at Law360, "DC Sniper Case Stokes Debate Over Juvenile Life Sentences"

"Will the Supreme Court Rein in 'Excessive Fines' and Forfeitures?: Don’t Rely on Timbs v. Indiana"

The title of this post is the title of this new paper authored by Nora Demleitner now available via SSRN. Here is its abstract:

The Supreme Court’s decision in Timbs v. Indiana, 139 S. Ct. 682 (2019), last term buoyed the hopes of those who saw it as a powerful signal to states and municipalities to rein in excessive fines, fees, and forfeitures.  Yet, the Court seems disinclined to fill the term “proportionality” with robust meaning or wrestle with Eighth Amendment challenges to fines and fees.  Those steps would be required for the Excessive Fines Clause to function as an effective backstop against revenue-raising and increasingly abusive local and state practices.  In the end, state courts and state legislative changes may more likely address effectively the essential question of what is excessive and restrain criminal justice actors from imposing ever heavier financial burdens on those caught up in the system.

This article first sets out the Supreme Court’s decision in Timbs in light of the incorporation debate and prior case law in the area.  Next it turns to the underlying but unaddressed contours of “excessive” in the context of fines and forfeitures.  The article then provides a broader look at forfeiture, including the interplay between state and federal law enforcement in the area.  Finally, the piece addresses state and local fines and fees, which will now be subject to Eighth Amendment analysis.  The Court, however, rejected the first opportunity to take up such a challenge.  At least for now, litigants may be more successful in reining in abusive fines and forfeitures in state legislatures and state courts.

Lots more cert denials and Rehaif GVRs in second SCOTUS order list of OT19

The Supreme Court this morning has released this relatively short order list, although the list of cases in which certiorari has been denied still runs about 10 pages.  The order list, like the one last week, starts with a list of cases in which "certiorari is granted, [t]he judgment is vacated, and the case is remanded" to the relevant Court of Appeals."  But all the Supreme Court's GVR work this week — six cases to be exact — relates to its mens rea ruling in Rehaif v. US, No. 17-9560 (S. Ct. June 21, 2019) (available here; discussed here).   In his Rehaif dissent, Justice Alito fretted that "great many convictions will be subject to challenge...."  Indeed.

"There Are Way Too Many Prosecutors in the Federal Judiciary: It’s time for a moratorium."

The title of this post is the headline of this notable new Slate commentary authored by Clark Neily discussing this notable recent report he did with the Cato Institute.  Here are excerpts from the Slate piece:

It’s no secret that federal judges do not, by and large, look like the rest of us.  They are whiter than average, more male, and more likely to have attended elite schools and worked at big law firms.  But there’s another quirk of the judiciary that hasn’t gotten nearly the attention it deserves: the wild imbalance between judges who used to represent the government in court and judges who used to challenge the government in court.

According to conventional wisdom, the surest way to become a federal judge is to first be a prosecutor.  But is that really true?  Until now, no one had ever examined the professional background of every sitting federal judge to see whether former prosecutors are in fact overrepresented on the federal bench.  So we at the Cato Institute did, and they are — massively.  But our study didn’t just look at former prosecutors.  We also broadened our scope to compare judges who served as courtroom advocates for the government in any capacity — criminal or civil — versus the judges who cut their teeth litigating against the government as public defenders, other criminal defense attorneys, and public interest lawyers.

Focusing just on former prosecutors versus former criminal defense attorneys (including but not limited to public defenders), the ratio on the federal bench is 4 to 1. Expanding the scope to include all former courtroom advocates for the government (but not other kinds of government lawyers, such as agency heads and general counsels), and comparing that to former public defenders, private criminal defense attorneys, and public interest lawyers, the ratio jumps to an astonishing 7 to 1. President Donald Trump’s judicial nominees, many of whom are committed originalists and supporters of constitutionally limited government, reflect these same ratios....

Of course, the fact that someone worked as a prosecutor, a defense attorney, or a public interest lawyer doesn’t necessarily mean they will be biased in that direction while serving as a judge.  Still, most of us have a strong intuition that a person’s prior professional experiences are likely to influence not only their worldview but also their approach to particular cases.  That’s why prosecutors routinely use their peremptory strikes to remove defense attorneys from the jury pool in criminal cases — and defense attorneys do the same thing to prosecutors.  It’s nothing personal; they simply recognize, as we all do, that experience inevitably informs judgment.

Given the government’s vast resources, nearly every court case pitting a lone citizen against the state represents a David-versus-Goliath fight for justice.  To further stack the deck with judges who are far more likely to have earned their spurs representing Goliath than David is unfair to individual litigants and a bad look for the justice system as a whole.

Fortunately, the solution is simple: a temporary moratorium on nominating former prosecutors to the bench and a strong preference for lawyers with substantial experience representing individuals against the government in criminal and civil cases.  If that proposal seems extreme, consider the image of a federal judiciary in which former public defenders outnumbered prosecutors 4 to 1.  Notwithstanding the transformative effect that would have on our deeply dysfunctional criminal justice system, not to mention the Bill of Rights, it’s probably not a good idea.  But neither is it wise to continue doing nothing while the imbalance runs the other way.  It is perfectly understandable that current government officials wish to stock the courts with former government advocates.  But it’s a bad deal for the rest of us and a doubtful way to ensure equal justice under law.

Catching up with another round of sentencings in "Operation Varsity Blues"

Three more parents were sentencing this past week by US District Court Judge Indira Talwani in the "Operation Varsity Blues" college admissions scandal.  Here are the headlines and essential from press accounts of these latest high-profile federal sentencings:

From NBC News, "NYC man, wife both sentenced to month in prison in college admissions scam: Gregory and Marcia Abbott paid $125,000 to have their daughter's SAT and ACT altered":

A New York man and his wife were each sentenced Tuesday to a month behind bars for paying a college-admission fixer to boost their daughter's SAT and ACT scores.  Gregory and Marcia Abbott will also have to complete a year of supervised release, pay a $45,000 fine and perform 250 hours of community service each, under sentences handed down in Boston by U.S. District Court Judge Indira Talwani.

The couple had already pleaded guilty in May to a single count each of fraud and conspiracy, paying $125,000 to ring leader Rick Singer for someone to correct answers on their daughter’s college board exams....

Prosecutors had asked Talwani to sentence the Abbotts to eight months in prison each.  Defense lawyers had sought probation for the pair.  The couple paid $50,000 to have a test proctor correct their daughter's ACT exam answers in 2018, and then another $75,000 to fix her SAT.

From the Los Angeles Times, "Bay Area entrepreneur is spared prison in college admissions scandal":

If any of the parents waiting to be sentenced in the college admissions scandal stood a chance at avoiding prison, it was Peter Jan Sartorio. He was, by any measurement, a small fish in a case filled with high-profile names and deep pockets: The $15,000 the 54-year-old food entrepreneur from the Bay Area paid to rig his daughter’s college entrance exam matched the lowest amount parents shelled out in the scam.  And with neither fame nor fortune, Sartorio didn’t fit the mold of the rich, entitled parent who prosecutors said needed to be punished with time behind bars.  He also was the first to admit his guilt.

On Friday a judge in Boston decided Sartorio was, in fact, less culpable than the others.  She spared him prison time, sentencing him instead to probation and community service. 

Sartorio is the eighth parent sentenced in the case and, for all up to now, U.S. District Judge Indira Talwani decided some amount of incarceration was needed.  The judge opted to go more lightly on Sartorio than she did on the actress Felicity Huffman, who received two weeks in prison for the same offense.  Sartorio was ordered to spend a year on probation, serve 250 hours of community service and pay a $9.500 fine....

Prosecutors had sought a one-month sentence for Sartorio, saying it was clear the father of two knew at the time that what he was doing was wrong. They underscored in court papers that when it came time to pay Singer, Sartorio avoided leaving a paper trail by paying cash and made multiple withdrawals from different accounts to avoid triggering automatic reviews by banking officials.

Prior related Varsity Blues posts:

• Mapping out next possible celebrity sentencings in wake of indictment in college admissions scandal 
• Big batch of federal plea deals (with relatively low sentencing ranges) in college admissions scandal
• Summer sentencing (with notable particulars) for first college admission scandal parents to enter pleas in court
• Federal district judge rejects feds request for significant prison term in first sentencing of college bribery scandal
• Gearing up for the federal sentencing of Felicity Huffman and others involved in college bribery scandal 
• Feds recommending incarceration terms from 1 to 15 months for parents involved college bribery scandal 
• Noticing the interesting (but perhaps not too consequential) guidelines "loss" issue lurking in the college bribery cases
• Gearing up for the next round of sentencings in college admissions scandal
• Next parent sentenced in college admission scandal gets four months in federal prison
• Next parent up in college admission scandal sentencing also gets four months in federal prison
• BigLaw partner gets one month federal time as latest parent sentenced in college admissions scandal 
• Napa Valley winemaker gets five months of imprisonment, the longest sentence so far in college admissions scandal
• US Attorney in college admission scandal makes plain how trial penalty works even for celebrity actresses

Deep dive into the deep human realities surrounding DC second look laws and policies

A helpful reader alerted me to this great extended article from the Washington City Paper about second look sentencing players and practices in DC. The piece, which I recommend in full, is headlined "How to End a Sentence: Juvenile sentencing reforms have sparked a face-off between the D.C. Council and U.S. Attorney over who should be released, and when."  Here are excerpts:

The [Incarceration Reduction Amendment Act] IRAA allows people who committed violent crimes before they turned 18 to ask a judge for a reduced sentence, as long as they’ve served at least 15 years. A D.C. Council bill introduced in February, the Second Look Amendment Act, would expand the law to include people who committed crimes before their 25th birthdays. An estimated 70 people have asked for a new sentence, and the bill could expand the number of eligible offenders to more than 500, the USAO believes.

This legislation comes as so-called “second look laws” are gaining momentum across the country and follow the precedent set by multiple U.S. Supreme Court rulings curtailing harsh sentences for juveniles. The high court’s decisions rely on a growing body of research showing brain development continues into a person’s mid-20s.

The Model Penal Code, a project of the American Law Institute that provides a template for criminal justice policy makers, suggests that offenders of all ages receive a second look after serving 15 years in prison. The latest version, revised in 2017, explains that America relies on the heavy use of lengthy prison sentences more than any other Western democracy. The U.S. has the highest incarceration rate in the world, despite two decades of falling crime rates.

D.C. Superior Court Judge Ronna Beck agrees that long sentences deserve another look. “I wish there were an opportunity for judges to be able to review everyone’s sentence after a significant period of time,” Beck said during Flowers’ resentencing. “Many people will not qualify for the sentence reduction that you did, but I think that it would be beneficial to our system to be able to have a review like this so that when people have really transformed their lives, as you seem to have done, that there was an opportunity to adjust a sentence that was imposed many, many decades earlier.”

A majority of the D.C. Council supports the Second Look Amendment Act—as does Mayor Muriel Bowser’s administration and Attorney General Karl Racine. But [Jessie] Liu, the Trump-appointed U.S. Attorney, is not a fan. Her office has encountered few IRAA petitions that it likes. Since the original law took effect in 2017, federal prosecutors, who have jurisdiction over felony crimes in D.C., have opposed nearly every request for resentencing.

They’ve argued that offenders are too dangerous to be released, their crimes are too heinous, they haven’t accepted responsibility for their crimes, their release undermines “truth in sentencing,” and that, although prison records showing a dedication to education are admirable, they are to be expected.

At a recent hearing for Mustafa Zulu, a man who spent 20 years in solitary confinement starting when he was 20, Assistant U.S. Attorney Jocelyn Bond argued that Zulu’s “very very impressive” list of educational courses and accomplishments does not outweigh his sins in and out of prison. “Education is not a panacea for violence,” Bond said. “It does not fix someone’s character … It doesn’t change someone’s underlying violent character.”

In September, as part of its campaign opposing the Second Look Amendment Act, the U.S. Attorney’s Office hosted a meeting for the public and a group of advisory neighborhood commissioners. Liu stood against the wall while representatives from her office made their case against the bill, emphasizing the impact on victims and concerns that the Council is expanding the law too quickly without sufficient evidence that those released won’t commit new crimes.

During the meeting, John Hill, a deputy chief and career prosecutor, cited data from the Bureau of Prisons showing a recidivism rate of about 35 percent among people released from 2009 to 2015 who would be eligible under the Second Look Amendment Act. Hill ignored City Paper’s request for the underlying data, and the USAO has refused to release it. Hill also presented incorrect data on D.C.’s incarceration rate, which the office later corrected in a tweet.

Nazgol Ghandnoosh, a senior researcher for The Sentencing Project, a nonprofit organization that promotes criminal justice reform, points out that the BOP’s definition of recidivism includes technical parole violations for missing a meeting or smoking weed. “A recidivism measure that separates these factors from new offenses gives people a better sense of public safety risk,” Ghandnoosh says.

Sarah McClellan, chief of the USAO’s victim witness assistance unit, explained at the September meeting that the new law reactivates trauma for victims and their families, many of whom have spoken passionately in opposition to offenders’ release.  At least two advisory neighborhood commissioners have published editorials opposing the second look bill, including Darrell Gaston, whose 15-year-old godson, Gerald Watson, was gunned down earlier this year. Malik Holston, 16, is charged with first-degree murder in Watson’s death.

Terrific ABA review of SCOTUS criminal work during Oct 2018 Term

LawProf Rory Little regularly prepares for the American Bar Association an end-of-Term review of the Supreme Court's work in criminal cases.  A decade worth of this terrific work is available at this link, and just recently added there is this 48-page accounting of the October 2018 Term.  The whole document is terrific, and here is the start of the first section under the heading "Brief Overview of the 2018-19 Term, Criminal Cases" (emphasis in original):  

As far as criminal cases go, there are two “big stories” from the past Term, one descriptive and the other substantive impact of the Term’s “big” cases. Let’s do the descriptive first.

This was the first Term in which two new Justices appointed by President Trump served together. Justice Gorsuch was appointed at the end of the Term before last, so this was his second full Term. Justice Kavanaugh served almost all of this Term; his confirmation was slightly delayed (as you may recall), so he actually first took the bench on Monday, October 8, the second week of the Term.  Still, the big question was, how would these two new Justices affect the Court?

What we now know is that, contrary to the general picture of the prior Term, the Justices divided in a remarkably large number of different variations.  Overall, there were 67 argued cases, plus 5 summary reversals, for a total of 72. I count 26 of the 72 as “criminal law and related,” or 24 of the 67 argued.  Of the 72, there were 20 decisions decided by a 5-4 vote -- and of these, there were 10 different variations of which Justices made up the five. This is an unusually high number. It seems that the current Justices are still trying to find their way, and (happily) are not cemented to always-predictable results.  I count 10 of the 5-4 decisions as criminal; in five of those the “liberal” bloc prevailed. If we think of the four liberal Justices as Ginsburg, Breyer, Sotomayor and Kagan, the question becomes: who was the fifth Justice? Interestingly, it was Gorsuch in three, Roberts in one, and Alito in one. (Kavanaugh was not the fifth vote in any 5-4 liberal criminal win, but he did write the strong majority opinion in Flowers, see below, a pro-defendant Batson death penalty decision.)

Justice Gorsuch’s pro-defense votes in at least four cases (Davis and Haymond, plus dissents in Gamble and Mitchell) indicate that he continues the “libertarian” streak that his predecessor Justice Scalia sometimes exhibited.  At the same time, Justice Gorsuch’s majority opinion in Bucklew, a death penalty case in which he boldly wrote that “last-minute stays should be the extreme exception,” demonstrates a strong pro-government position on capital punishment. Interestingly, despite their common appointment source, Justices Gorsuch and Kavanaugh did not always agree (they had only a 56-70% overall agreement rate), and were on opposite sides in six or more criminal cases. Is there a lesson here? Wait and see, is my advice.

Substantively, because 23 of the 67 argued cases (or 25 of the 72 total) were criminal lawor-related decisions, we can see that over a third of the docket is “criminal.” This is about normal for the Supreme Court’s docket. With 25 criminal-and-related decisions, of which I’d say 17 were “pure criminal,” there is a lot to digest (as the following 38 pages demonstrate).  Only a few highlights can be summarized here.

What was the “biggest” criminal law decision of the Term?  Of course it depends on your interests, and perhaps your ideology.  Certainly the Gamble case, affirming the “separate sovereigns” exception to the Sixth Amendment’s Double Jeopardy Clause despite calls for overruling it, was big news.  Meanwhile, the Timbs decision makes it clear that the Eighth Amendment’s “no Excessive Fines” Clause applies fully to the States. (In a similar vein, next Term the Court will decide whether the Sixth Amendment’s unanimous jury requirement is similarly “incorporated,” in Ramos v. Louisiana). Meanwhile, the Fourth Amendment decision in Mitchell suggests that a majority is ready to broaden the concept of “exigent circumstances” as a categorical exception.  And finally, the Haymond decision extends Apprendi to the revocation of supervised release, which Justice Alito in dissent calls “revolutionary;” and the decision in Rehaif demonstrates a strong commitment to requiring mens rea for every factual element of an offense (in that case, knowledge that one belongs to a class of persons prohibited from possessing firearms).

Seeking fresh perspectives on reentry and recidivism challenges

Brent Orrell, a fellow at the American Enterprise Institute, has this notable new Hill commentary under the headline "Rethinking pathways to reentry." I recommend the piece in full, and here are excerpts:

[A] declining prison population necessarily means that thousands of individuals are taking the arduous road back from prison to their communities.  For many, this road ends up looking more like a roundabout than a highway, with more than 80 percent being arrested again less than a decade after release. Much has been tried to reduce recidivism but little has been shown to have significant positive effects.  Over the past year, the American Enterprise Institute convened a group of scholars to delve into this problem, bringing together more than two dozen program evaluators, criminologists, and researchers to discuss what works and what does not in helping formerly incarcerated individuals successfully leave prison and reintegrate back into their communities.

Our research report sought to distill some insights into the state of research and practice in reentry with the goal of identifying fresh perspectives for policymakers, researchers, and practitioners working in the field. Many of these ideas will be more fully developed as part of a volume to be published in early 2020.  While the working group did not seek to develop a consensus, it did identify several critical areas of focus for advancing the work of the corrections and reentry fields.

First, it is crucial that programs operating within correctional systems and at the community level become more rigorous in their program designs. Correctional systems and reentry programs at the community level need clearly defined theories of change that lay out a strategic conceptual framework, detailed steps for reaching the desired outcomes, and metrics for determining success.  In criminal justice and reentry, causality is hard to establish and measure, and such theories would help.

Second, researchers need to focus more time and energy on program implementation. Many correctional institutions and local criminal justice systems are either unequipped or uninformed or both about how to put a particular program model into practice. The result is a mashup of partially implemented programs that bear little resemblance to the models they are based on....

The report also highlights the importance of accurately gauging the needs of incarcerated individuals and their criminogenic risk factors.  The best research shows that tailored services produce better outcomes than “one size fits all” programs that run the risk of providing individuals either too little or too much help.  To effectively align services with individual needs, correctional staff must understand criminogenic risk factors and align services to mitigate them.  These assessments might be expensive and time consuming, but the benefits outweigh the costs.

Finally, new research indicates that people may stop committing crimes suddenly rather than desist on a slow age related curve, a model that has governed our criminal justice expectations for decades. There is evidence that even those who seem most likely to recidivate make choices to become crime free, quickly reducing or eliminating the likelihood of rearrest.  While there is uncertainty about how to produce this shift, the research suggests that reentry programs should be oriented to support those who have made or are close to making the transition.

All levels of government, along with many private and philanthropic organizations, have invested billions of dollars in trying to solve the recidivism puzzle.  To date, the effect has been disappointing.  This report and the volume that will be published next year are an effort to plot multiple pathways toward possible solutions.  Some of these pathways focus on making existing approaches more effective while others seek to innovate entirely new solutions.  The bottom line is that the status quo is neither sufficient nor sustainable. For the sake of the thousands of men and women who return home from prison each week and the families and communities who receive them, we can and must do better.

The full American Enterprise Institute report discussed in this commentary is available at this link under the title "Rethinking reentry: An AEI working group summary."

Marshall Project reviews where 2020 Democratic Prez candidates stand on various criminal justice reform issues

The folks at The Marshall Project has put together this attractive and handy guide reporting and organizing all the position of the 2020 Democrats on criminal justice. I recommend the resource, and here are the issues on which positions are assembled:

How would you reform the bail system?

Should people in prison have the right to vote while they are incarcerated?

Should marijuana be legalized nationwide?

Should sentencing include mandatory minimums?

Do you support the death penalty?

Do you support decriminalizing illegal border crossings?

Another notable (but ultimately disappointing) ruling about sentence reductions under § 3582(c)(1)(A) after FIRST STEP Act

As regular readers know, in prior posts I have made much of a key provision of the FIRST STEP Act which now allows federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  I see this provision as such a big deal because I think, if applied appropriately and robustly, this provision could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced.

But in order for § 3582(c)(1)(A) to have a significant impact, federal judges will need to fully embrace and give full effect to their new authority to "reduce the term of imprisonment" whenever and wherever they find that "extraordinary and compelling reasons warrant such a reduction."  I have flagged here and here and here some notable examples of judges finding notable reasons sufficient to reduce a sentence.  But now I have to note a notable new ruling in which a notable judge seems to conclude there are "extraordinary and compelling reasons" to warrant a sentencing reduction, but then still decides not to grant a reduction for reasons that do not seem justified by the provisions of § 3582(c)(1)(A).

This new ruling comes in US v. Brown, No. 4:05-CR-00227-1, 2019 WL 4942051 (S.D. Iowa Oct. 8, 2019), and it is authored by Senior District Judge Robert Pratt.  Notably, Judge Pratt was the district judge in the Gall case who gave full effect to the Booker ruling and whose non-incarcerative decision there was ultimately vindicated by SCOTUS.  In this new Brown case, Judge Pratt writes an extended, thoughtful opinion about compassionate release and the changes to § 3582(c)(1)(A) brought by the FIRST STEP Act.  In so doing, Judge Pratt states that "much about Defendant's situation is extraordinary and compelling" and yet still "the Court concludes it cannot exercise its discretion to grant release at this time."

The Brown opinion explains the basis on which Daniel Brown claims his situation is "extraordinary and compelling": (a) his behavior for a dozen years in prison was "exemplary," (b) he "suffered a botched surgery while incarcerated" (though he can still care for himself in prison) (c) "his daughter is without a parent" (though an adult who cares for herself) and (d) "he faces a sentence far longer than he would ever receive under modern law."  This last point is a function of Brown having received an extra 300 months (25 years!) because of stacked 924(c) gun counts that would no longer stack now after the FIRST STEP Act.  On this point, Judge Pratt further notes that the judge who originally sentenced Brown "concluded the additional 300 months' imprisonment from the second § 924(c) count was 'far greater than was necessary to achieve the ends of justice'."  And for good measure, as Judge Pratt notes, Brown's "co-defendant, who eventually ran his own drug operation, was released in April 2018."

This all sure seems to me to be "extraordinary and compelling reasons [that] warrant a reduction" under 18 U.S.C. § 3582(c)(1)(A), and Judge Pratt essentially says as much.  But, disappointingly, after making a strong factual record on Brown's behalf, Judge Pratt declines any reduction of Brown's original 510-month sentence with this reasoning: 

In this case, compassionate release nevertheless is premature because even if the First Step Act applied retroactively, Defendant would still be in prison.  With a lone § 924(c) count, Defendant still faced 210 months in prison.  ECF No. 118.  Even rounding up to the nearest month and including good conduct credits, Defendant has served 167 months. That is a long stretch by any measure, and perhaps more than appropriate for Defendant's crimes.  Regardless, because Defendant would still be in prison under modern law, any sentencing disparity created by § 924(c) stacking does not, at least yet, provide an “extraordinary and compelling reason” for compassionate release.  Thus, despite discretion to consider a broad range of factors, the Court declines to grant Defendant's motion at this juncture.

This reasoning seems deeply misguided to me: Daniel Brown has not moved in this case for the First Step Act to be applied retroactively, because (disappointingly) Congress has not provided for the Act to be applied retroactively.  Rather, Brown has moved for a sentence reduction under § 3582(c)(1)(A) because Congress has provided for judges to be able to "reduce [his] term of imprisonment" if and whenever a judge finds "extraordinary and compelling reasons warrant such a reduction."  Judge Pratt suggests Brown has made such a showing and he even suggests that Brown has already served more time than is appropriate for his crimes.  But, still, Judge Pratt refuses to use the legal tool available to him to reduce Brown's sentence, and so Brown is now still slated to serve nearly another 30 years in prison(!) that neither Congress nor any judge views as in any way justified by any sound sentencing purposes.

Critically, though 18 U.S.C. § 3582(c)(1)(A) is often called a "compassionate release" provision, there is no requirement in the statute that a judge order a sentencing reduction in the form of a "time served" sentence.  All the statute says is that a judge is authorized to "reduce the term of imprisonment ... after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that extraordinary and compelling reasons warrant such a reduction."  If Judge Pratt's concern was that section 3553(a) factors did not justify reducing Brown's sentence below 210 months, he still could have granted him relief by reducing his sentence from 510 to 210 months.

Because Judge Pratt used terms like "not yet" and "at this juncture" and "at this time," I am hopeful that Judge Pratt could and would entertain a renewed § 3582(c)(1) from Brown in four years when he has served 210 months of imprisonment.  Notably, there is no clear law right now about whether and when there are limits on how many times a defendant can bring a motion for sentence reduction pursuant to § 3582(c)(1)(A).  But since I think the law clearly supports granting his motion now, I am disappointed Judge Pratt did not exercise his discretion in this case in a manner similar to how he did in Gall.

A few prior related posts on § 3582(c)(1)(A) after FIRST STEP Act:

• Compassionate release after FIRST STEP: Should many thousands of ill and elderly federal inmates now be seeking reduced imprisonment in court? 
• Sad start to what should become happier compassionate release tales after passage of FIRST STEP Act 
• Encouraging new reports about encouraging new compassionate release realities thanks to FIRST STEP Act
• Highlighting how judges can now bring needed compassion to compassionate release after FIRST STEP Act 
• Federal judge pens extraordinary and compelling order requesting US Attorney to vacate old stacked 924(c) conviction in extraordinary and compelling case 
• Is anyone collecting and analyzing sentence reduction orders under § 3582(c)(1) since passage of the FIRST STEP Act?
• Good day for thinking hard about sentencing second looks and second chances
• New District Court ruling confirms that "any extraordinary and compelling reasons" can now provide basis for reducing imprisonment under 18 U.S.C. § 3582(c)(1)(A) 
• District Court finds statutory sentence reform among "extraordinary and compelling reasons" for reducing LWOP sentence under 18 U.S.C. § 3582(c)(1)(A) 

UPDATE:  I was able to secure a copy of the ruling in Brown, which can be accessed here: Download Brown Compassionate release

Might as well face it, "we're addicted to jail"

With apologies to Robert Palmer, this recent Hill commentary by David Oscar Markus has me wanting to riff on a rock classic:

Whoa, you like to think that we're a nation that's free, oh yeah

It's closer to the truth to say we can't let people be

You know you're gonna have to face it, we're addicted to jail

The last phrase of my tortured lyric here is the headline of the Hill commentary that should be read in full.  Here are its closing flourishes:

We issue jail sentences like candy, to address every known problem that we have.  Drug problem — jail.  Using your family member’s address to get your child into a better school — jail.  Paying college athletes — jail.  The United States jails more people than any other country in the world.  We have higher incarceration rates than Russia, Iran, and Iraq — by a lot.  We tolerate innocent people sitting in jail when we only suspect that they might have done something wrong, as one man did for 82 days when he brought honey into the United States.  82 days.

Even though oversleeping doesn’t seem to be a rampant problem, the judge in Deandre [Somerville]’s case admitted that he was trying to solve a broader jury “misconduct” issue with jail.  This is not how it should be.  The jail solution has become much worse than the diseases it was trying to cure. So what do we do about it?

One easy fix — appoint more criminal defense lawyers and civil lawyers to the bench and fewer prosecutors. According to the Cato Institute, former prosecutors are “vastly overrepresented” throughout the judiciary.  As to federal judges alone, the ratio of former prosecutors versus former criminal defense lawyers is four to one (and if you include lawyers who worked for the government on the civil side, the ratio is seven to one).  A criminal case or a civil rights case has a 50 percent chance to be heard by a former prosecutor and only a six percent chance to be heard by a judge who has handled a case against the government.  Cato explains the unfairness of this with a simple example — we would never allow four of the seven referees of a Ohio State-Michigan football game to be alumni of Michigan.  Ohio State fans would never tolerate it.  And yet, there are no criminal defense lawyers on the Supreme Court and there hasn’t been one for more than 25 years.

In many cases, former prosecutors have never represented a person sentenced to jail.  They have never visited a client in jail.  They have never explained to a family — while the family cried — that their loved one is going to be taken from them.  As prosecutors, they have only put a lot of people in jail.  And so, as judges, this addiction to jail continues, even for someone like Deandre, who ends up serving a jail sentence because he overslept.

We have many problems in this great country, and our addiction to jail is high on the list.

"The Brain in Solitude: An (Other) Eighth Amendment Challenge to Solitary Confinement"

The title of this post is the title of this new paper recently posted to SSRN authored by Federica Coppola.  Here is its abstract:

Solitary confinement is not cruel and unusual punishment.  It is cruel and unusual if one or more of its accompanying material conditions result in a wanton and unnecessary infliction of pain upon an individual.  This requirement is met when such conditions involve a “deprivation of basic identifiable human needs” to an extent that they inflict harm or create a “substantial risk of serious harm” and they are enacted with “deliberate indifference” by prison personnel.  With limited exceptions, the Supreme Court and lower federal courts have perpetuated a narrow application of these standards. 

In particular, Courts have often discounted the generalized mental pain caused by extreme isolation.  Accordingly, Courts have often neglected the duration of solitary confinement as an autonomous aspect of constitutional scrutiny.  Growing neuroscientific research has emphasized that social interaction and environmental stimulation are of vital importance for physiological brain function.  It has further highlighted that socio-environmental deprivation can have damaging effects on the brain, many of which may entail irreversible consequences.  Drawing on these insights, this article suggests that solitary confinement is in and of itself cruel and unusual punishment even under the current standards.  Avenues for a profound rethinking of solitary confinement regimes are presented and discussed.