Sentencing Law and Policy

"The Verdict on Private Criminal Justice"

The title of this post is the title of this book chapter now available via SSRN which is the final chapter of the book Private Criminal Justice authored by my OSU colleague Ric Simmons. Here is its abstract:

This is the concluding chapter of my book Private Criminal Justice, which was recently published by Cambridge University Press.  The book traces the history of private parties’ involvement in responding to criminal activity, and examines the modern instances of private policing, private adjudications, and vigilante justice.  This chapter first considers how the implementation of a widespread private criminal justice system — that is, responding to and punishing criminal conduct without the participation of the state — can still be responsive to the needs and interests of the community.  The chapter argues that the state in fact does a poor job of representing community interests, due to the politicization of public criminal justice policy and the related rise of mass incarceration, and posits that the private criminal justice system could enhance the influence of community interests on criminal justice policy.

The chapter concedes that currently, the components of our private criminal justice system lack many of the basic procedural protections for defendants, and it explores ways that the private system can be regulated so that defendants receive these protections, or at the very least ensure that defendants are informed of the protections that they are forfeiting when they opt out of the public system.

The chapter then offers suggestions for improving the accountability of private police officers, and for using aspects of the private criminal justice system to ameliorate the inequalities of the public criminal justice system.  It concludes by imagining a world where private criminal justice enforcement, settlements, and adjudications are normalized and common, resulting in a wider net of social control in which more criminal conduct is detected and punished, but the punishments are far less severe than in the current system.

CCJ releases additional short reports on the impact of the First Step Act on recidivism and time served

I flagged in this post from August this notable new report authored by Avinash Bhati and published by the Council on Criminal Justice (CCJ) titled "First Step Act: An Early Analysis of Recidivism."  Today, CCJ released two new analyses of the FIRST STEP Act's impacts also done by Bhati, and here are the titles, links and introduction:

"Technically Speaking: Accounting for Technical Violations in First Step Act Recidivism"

A previous Council on Criminal Justice report, First Step Act: An Early Analysis of Recidivism, found that people released from prison under the First Step Act (FSA) had a recidivism rate 37% lower than similarly situated individuals (i.e., similar risk levels and time since release from prison) who were released prior to the Act’s implementation. Using newly available data, this brief adds further context to the recidivism analysis by distinguishing recidivism due to technical violations of supervision rules from recidivism attributed to new criminal activity.

"Time Sentenced and Time Served: Exploring the Impact of the First Step Act"

Passed in 2018, the First Step Act (FSA) was designed to reduce reoffending among people leaving federal prisons.  A previous Council on Criminal Justice analysis, First Step Act: An Early Analysis of Recidivism, found that individuals released from Bureau of Prison (BOP) custody under the FSA had lower recidivism rates than similarly situated people who were released prior to the Act’s implementation.  An additional analysis, Technically Speaking: Accounting for Technical Violations in First Step Act Recidivism, further contextualizes the recidivism rate reported for people released under the FSA. It distinguishes recidivism due to technical violations of supervision rules from cases involving new criminal activity.

This analysis examines the impact of the FSA on the amount of time served by people released under the law.  Several provisions of the FSA provide opportunities for eligible people to reduce the amount of time they serve in federal prisons; such opportunities include an expansion of sentence credits and compassionate release, among others. Provisions of the FSA are summarized in a Congressional Research Service brief.

"Accessing SNAP and TANF Benefits after a Drug Conviction: A Survey of State Laws"

The title of this post is the title of this notable new report produced by the Collateral Consequences Resource Center and authored by Margaret Love and Nick Sibilla. Here are parts of the report's introduction:

This report offers a comprehensive and up-to-date picture of the differing ways states have responded to the 1996 federal ban on access to SNAP and TANF benefits for those with a felony drug conviction, either by opting out of the ban or by modifying it, and includes illustrative maps and relevant sections of statutory text to facilitate analysis and comparison.

The 1996 Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) imposed a lifetime ban on federal food assistance benefits (SNAP) and Temporary Assistance for Needy Families (TANF) for anyone with a drug felony conviction obtained after passage of the Act. PRWORA allowed states to opt out of the ban or to modify it, and over the years all but one state has opted out of the ban or modified it for at least one of the two benefit programs. That said, fully half the states remain committed in some fashion to this outdated artifact of the War on Drugs.

Over the years there have been numerous reports critical of the policy underpinnings of the categorical ban on public welfare benefits imposed by PRWORA, and researchers have generally concluded that the ban is counterproductive even in modified form, including in criminal justice terms. Indeed, a recent empirical study of modified versions of the SNAP/TANF bans concluded that by “introducing greater state scrutiny of recipients’ conformity to state-sanctioned behavioral norms,” modified bans are “not inherently less punitive” than full bans.

We do not intend to dwell on the policy arguments against the PRWORA ban in this report. Rather, our purpose here is the more modest one of providing a detailed description of state laws that currently modify participation in the SNAP/TANF bans, for use by policymakers and advocates seeking further reforms. Surprisingly, this has not been done in the more than 25 years since PRWORA’s enactment. Two recent private sector studies have identified the extent of state participation in one or both of the PRWORA bans, but their conclusions are not consistent with one another or, in all cases, with our own research. Notably, neither of these studies documents the specific features of modified bans, which can vary widely from state to state in scope and effect.

Significantly, no previous report on the SNAP/TANF bans has included statutory text that would permit analysis of the ways various states have modified them, and comparisons between and among states. Our report attempts to remedy this shortcoming. We illustrate the national landscape of participation in the SNAP/TANF bans through a set of maps: one map shows the national landscape of participation in the PRWORA ban for all 50 states, and two additional maps show how states have modified the ban for each of the two benefit programs. A 30-page Appendix includes the text and an analysis of each state’s relevant law(s), providing additional detail about how access to benefits may be controlled differently even within the same general category of modification.

We hope that advocates in states that have not yet fully opted out of both the PRWORA bans will find this unique collection of research tools helpful as they work to complete this important law reform project.

Notable new Gallup polling on views about legal treatment of teens who commit violent crimes

Gallup released this new story about its latest polling on the treatment of juvenile offenders under the headline "Americans Divided on Treatment of Violent Juvenile Offenders."  Here are excerpts:

Americans divide evenly on whether the criminal justice system should treat teens who commit violent crimes the same as adults (46%) or give more lenient treatment in juvenile courts (47%).  This marks a shift in attitudes from two decades ago, when majorities of 65% in 2000 and 59% in 2003 felt juveniles aged 14 to 17 who commit crimes should be treated the same as adult criminals.

The latest results are from Gallup’s annual Crime survey, conducted Oct. 2-23.  The issue of how violent juveniles should be treated is increasingly relevant given the increase in mass shootings, particularly at U.S. schools, with the majority of K-12 school shootings perpetrated by children under age 18....

The views of Democrats, independents and younger adults have changed more than the opinions of Republicans and older adults.  However, all key subgroups show some movement away from believing that violent juvenile offenders should be treated the same as adults.  In fact, in 2000, the various political party and age subgroups generally held similar views, with between 60% and 68% of each believing juveniles should be treated the same as adults.

As a result of the disproportionate changes in opinion, Democrats and adults under age 50 now come down on different sides of the debate than Republicans and older Americans do.  Majorities of Democrats (61%) and adults under age 50 (56%) believe 14- to 17-year-olds who commit violent crimes should get more lenient treatment in a juvenile court, while majorities of Republicans (59%) and adults over age 50 (53%) believe such teens should be treated the same as adults. Political independents are evenly divided on the issue.

College graduates tend to believe juveniles should get more lenient treatment in the justice system, while those without a college degree tend to think juveniles should be treated like adults.  Parents of children under 18 (54%) are more likely than non-parents (45%) to favor teens receiving more lenient treatment in juvenile court....

Criminal justice statistics indicate that fewer young offenders are being tried as adults today than in the past.  Many states with separate juvenile justice systems have changed laws so children under age 18 are no longer automatically charged as adults for certain crimes.  Those laws may have changed because of a new understanding of adolescent development, a greater realization of the role poor mental health can play in teen criminal activity, and the possibility that young people with a criminal history can be rehabilitated.

Local judge allows assaulter to serve some of her jail time by serving fast food

This new Washington Post piece, headlined "Woman sentenced to fast-food job after hurling Chipotle bowl at worker," reports on a notable local crime resulting in a notable fitting sentencing provision.  Here are the details:

Emily Russell was a store manager at an Ohio Chipotle when an irate customer hurled a chicken burrito bowl at her face. Now a judge has sentenced the customer to work at a fast-food job to avoid further jail time.

Rosemary Hayne, 39, was found guilty of one count of assault on Nov. 28 after admitting to throwing the burrito bowl at Russell in September.... Hayne’s behavior went viral in a video showing her screaming at Russell, 26, then grabbing her food and throwing it directly in Russell’s face.

At first, Hayne was slated to pay a fine and undergo a 180-day jail term, with 90 days suspended. However Gilligan offered her a chance to reduce her sentence with a highly unusual proposition. The judge presented her with an opportunity to cut her sentence by 60 days in exchange for consenting to work 20 hours per week at a fast-food restaurant for two months. Hayne agreed.

In the courtroom, Russell, the victim, told the judge the past two months have been the worst of her life. And she said she deals with the trauma of the incident daily. She told The Washington Post that she was protecting a 17-year-old employee who was getting yelled at by Hayne. She remade her order twice and included extra protein and other ingredients to appease Hayne, she said. Hayne left with her food but returned a few minutes later. “She started screaming at me. … The next thing I knew she threw the food in my face. I was so embarrassed and in shock.”...

Russell, who worked at Chipotle for more than four years, and has been in the service industry for nine, says she had drinks and sandwiches thrown at her by customers but never experienced something so violent at work before....

She has gotten supportive comments from people across the United States and is glad to share her story if it can help other fast-food workers. “Everyone has bad days, but it should never come to a point where you have to mistreat a human being,” she said. She’s happy with the judge’s sentence, saying “she got exactly what she deserved” and now gets to walk in her shoes.

"Excess mortality in U.S. prisons during the COVID-19 pandemic"

The title of this post is the title of this new article by multiple authors just published in the journal Science Advances.  Here is its abstract:

U.S. prisons were especially susceptible to COVID-19 infection and death; however, data limitations have precluded a national accounting of prison mortality (including but not limited to COVID-19 mortality) during the pandemic.  Our analysis of mortality data collected from public records requests (supplemented with publicly available data) from 48 Departments of Corrections provides the most comprehensive understanding to date of in-custody mortality during 2020. We find that total mortality increased by 77% in 2020 relative to 2019, corresponding to 3.4 times the mortality increase in the general population, and that mortality in prisons increased across all age groups (49 and under, 50 to 64, and 65 and older).  COVID-19 was the primary driver for increases in mortality due to natural causes; some states also experienced substantial increases due to unnatural causes.  These findings provide critical information about the pandemic’s toll on some of the country’s most vulnerable individuals while underscoring the need for data transparency and standardized reporting in carceral settings.

DPIC releases new report focused on racial history of Missouri’s death penalty

As reported in this DPIC press release, "the Death Penalty Information Center (DPIC) released a report that documents how racial bias and violence affected the past use of the death penalty in Missouri and how that history continues to influence the current administration of capital punishment in the state."  The full 43-page report, titled "Compromised Justice: How A Legacy of Racial Violence Informs Missouri’s Death Penalty Today," is available here.  The executive summary can be found here, and here is how it begins:

Missouri is one of a handful of states that has consistently executed people in the last five years.  In 2023, Missouri executed four people.  Understanding the historical application of the death penalty in Missouri helps our understanding of how capital punishment is used today.

Historically, Missouri’s Death Penalty Was Applied Discriminatorily Based on Race

Decades before Missouri gained statehood, the territory adopted capital punishment laws that were applied based on race.  There were at least four crimes that could only be tried capitally if committed by an enslaved person.  After Missouri became a state in 1821 and had adopted superficially race-neutral capital punishment laws, the death penalty continued to be applied discriminatorily: enslaved people were four times more likely to be executed than white Missourians before 1865.

Missouri Has a Substantial History of Racial Violence Directed at Black Missourians

The first documented lynching in U.S. history happened in Missouri in 1838. By the late 1800s, racial terror lynchings had increased in regularity, particularly in Southern, former slave-holding states.  Throughout the 19th and 20th centuries, at least 60 Black Missourians were killed in lynchings, making it the state with the second highest number of racial terror lynchings outside of the South.

Although the number of lynchings declined, public executions continued in Missouri longer than all but one other state.  Public executions were a form of racial violence: there are examples of sheriffs providing execution attendees with souvenirs such as pieces of the ropes used to hang Black people and even the victim’s body parts.  After a quadruple execution in St. Louis, a drug store owner was permitted to display the severed head of a Black person who was executed in his shop.  The constant reminders of brutal lynchings and executions were used by white people to continually threaten and intimidate Black people.

"'Progressive' Prosecutors and 'Proper' Punishments"

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

After decades of relative inattention to prosecutorial elections, academics and activists recently have focused on “progressive prosecutors” as a promising avenue for criminal justice reform.  That said, the growing literature on progressive prosecutors reflects little clarity about what makes a prosecutor “progressive.”  Recent campaigns suggest disparate visions of how to operationalize “progressive prosecution.”  In this chapter, I describe four ideal types of progressive prosecutor: (1) the progressive who prosecutes, (2) the proceduralist prosecutor, (3) the prosecutorial progressive, and (4) the anti-carceral prosecutor.  Looking to sentencing policy as a case study, I examine how these different ideal types illustrate different visions of criminal justice reform. 

Notable grant of compassionate release, supported by prosecutors, for drug prisoner serving mandatory life

A helpful reader made sure I saw a notable new grant of compassionate release in US v. Vanholten, No. 3:12-cr-96-RBD-MCR (MD Fla. Dec. 1, 2023) (available here).  The 15-page opinion is worth a full read, and here is the start of the opinion and the heart of the ruling:

Mr. Vanholten is serving a life sentence for trafficking cocaine, in essence, because he sold two dime bags of marijuana, $20 worth, to two undercover police officers when he was nineteen years old.  In January 2012, he was pulled over on I-95 northbound while driving in tandem with another car carrying ten kilograms of cocaine in the trunk.  Investigators linked Mr. Vanholten to the cocaine, leading to his arrest and indictment on one count of aiding and abetting the possession and intent to sell over five kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(A) and 18 U.S.C. § 2.  The Government filed a 21 U.S.C. § 851 information advising the Court that Mr. Vanholten had a prior felony drug conviction — a 2006 federal charge for possession of 250 grams of cocaine with intent to distribute — which enhanced the mandatory minimum penalty to twenty years for his crime. He remained in custody after his arrest pending trial.

Plea negotiations broke down because Mr. Vanholten would not say “where [the cocaine] came from and where it was going.”  In turn, the Government amended the § 851 notice to add a second prior drug felony — the previously mentioned 1996 marijuana offense — which upped the mandatory minimum to life in prison. Despite the looming prospect of life behind bars, the case went to trial.  On August 3, 2012, a jury convicted Mr. Vanholten of the indicted charge.

Bound by the § 851 enhancement, this Court imposed a term of life imprisonment on November 19, 2012, to be followed with ten years of supervised release.  In its remarks, the Court expressed it “would not impose a life sentence but would impose a sentence of a significant period of incarceration” if it had any discretion to do so. Mr. Vanholten has remained incarcerated with the Federal Bureau of Prisons (“BOP”) ever since.....

First, extraordinary and compelling reasons exist where the defendant (1) is suffering from a serious physical or medical condition that (2) substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and (3) from which he is not expected to recover. U.S.S.G. § 1B1.13(b)(1)(B)(i). Though he is not at death’s door, Mr. Vanholten’s medical records show that his sarcoidosis is both chronic and persistent, hurting his lungs and pulmonary function....

Second, Mr. Vanholten also presents a combination of circumstances that, considered with his health, are “similar in gravity” to the other reasons explicitly listed in subsections (b)(1)–(4) of the policy statement. See U.S.S.G. § 1B1.13(b)(5) (newly amended catch-all provision). As discussed, his deteriorating health is a serious medical condition. His rehabilitation and clean disciplinary history while incarcerated are remarkable. And it is extraordinary that the Government supports Mr. Vanholten’s release and clemency application. In the words of the parties, these factors, “combined with length of time he has already served in the BOP, and the reduced mandatory minimum sentence he would face today, together are ‘similar in gravity’ to the circumstances of U.S.S.G. § 1B1.13(b)(1)–(4),” and so establish extraordinary and compelling 13 reasons for release.5 (Doc. 96, ¶ 8.)

Lots of (little?) stories in USSC's FY 2023 fourth quarter sentencing data release

Late last week, the US Sentencing Commission released on its website this latest quarterly data report, labelled "4th Quarter Release, Preliminary Fiscal Year 2023 Data Through September 30, 2023."  These new data provide the latest accounting of federal sentencings, and this latest data run seems to reflects the impact of the USSC 2023 guideline amendments.  Technically, the new guidelines did not become effective until November 1, 2023.  But the pending guidelines  — which, inter alia, changed some criminal history rules to benefit defendants — likely explains why Figure 2 shows a decline in the number of sentences imposed over the summer.  I suspect some judges delayed some sentencings until the new guidelines were effective.  Similarly, Figure 3 shows a record high number of variances in the last quarter, likely because some judges went forward with sentencings this summer and gave defendants the benefit of pending guidelines through a variance.

As I have noted before, a big COVID era trend was a historically large number of below-guideline variances, and this trend has now persisted over the last 13 quarters of official USSC data (as detailed in Figures 3 and 4).  I continue to believe this trend is mostly a facet of the different caseload and case mixes.  As I have also flagged before, for anyone who has long followed federal sentencing data and debates, the USSC's latest data on drug sentencing reflected in Figures 11 and 12 are especially striking.  These figures show, nearly half of all federal drug sentencings last fiscal year involved methamphetamine (roughly 9000 total), whereas fewer than 1000 crack defendants and fewer than 600 marijuana defendants were sentenced in federal court in FY 2023.

Finally, these fiscal year data provide just another reminder of the scope of the federal sentencing system.  The data show around 63,500 total sentences imposed in FY23, of with 92.5% included an imprisonment term.  These data mean that in an average week, an average of over 1,200 persons receive a federal sentence, and of those over 1,100 are being sentenced to federal prison.  

Impressive hand-wringing about the "categorical approach" to criminal history from Third Circuit judges

A helpful colleague made sure that I saw the notable opinion authored by Judge Jordan and joined by a half-dozen of his Third Circuit compatriots in US v. Harris, No. 17-1861 (3d Cir. Nov. 27, 2023) (available here).  The opinion is a concurrence in denial of rehearing en banc sought by the government hoping to overturn a key Third Circuit precedent, Mayo.  Mayo ruled a Pennsylvania's aggravated assault conviction did not qualify as "violent" to be a predicate for applying the Armed Career Criminal Act due to the "categorical approach" to criminal priors required by Supreme Court precedent. 

The full 42-page Harris opinion, which is filled with Mayo and mustard, is a must-read for anyone eager to better understand the mess that is federal law seeking to categorize state criminal priors.  I will here quote a number of paragraphs, mostly from the start and end of the opinion, though many more are worth reading: 

We recognize that our decision today declining en banc reconsideration of this matter will be a source of great frustration for the government.  Frustration is the gift that the “categorical approach” keeps on giving.  This peculiar analytical construct has forced us and other courts to reach perverse outcomes in many, many cases, this one being only the latest.  And even when the result of applying the categorical approach sometimes makes sense, time and effort is often wasted because a more obvious route to the sensible result is readily available.  Even worse is the difficulty of justifying the categorical approach and its outcomes to the citizenry we serve.  The public may not care whether anyone finds the categorical approach frustrating, but they do care about justice, and we are unable to explain how our holding in this case satisfies basic notions of right and wrong.  Despairing of that, we write to describe why the outcome here is compelled by precedent and to highlight why changes in the categorical approach are needed.

For those who may not be familiar with the categorical approach, we provide a brief overview of its origin and development, with particular focus on the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), the legislation that, along with another firearms statute, 18 U.S.C. § 924(c), and the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101, et seq., has been the primary seedbed for this extraordinary doctrine.  We then explain how application of the categorical approach regularly generates unjust results and taxes judicial resources.  We conclude by explaining our support for a more fact-based approach that would maintain key aspects of Supreme Court precedent while allowing courts to take account of an individual’s actual conduct and, hence, provide real justice....

Time and again, federal courts have been required to hold that state law felony convictions for conduct that plainly involved the use of force — including convictions for voluntary manslaughter, aggravated assault, assault with a deadly weapon with intent to kill, attempted rape, first-degree sexual abuse, sexual abuse by forcible compulsion, taking indecent liberties with a child, maliciously damaging or destroying property by means of an explosive, first-degree robbery, second-degree robbery, first-degree burglary, and second-degree burglary — do not qualify as “violent felonies” under ACCA.  Today, we are likewise compelled to reiterate, bizarre though it sounds, that shooting at a fleeing victim is not a “violent felony,” Harris, 68 F.4th at 141, while in Mayo, we were forced to say that bashing a victim in the head with a brick was not “violent” under ACCA....

Considering the well-intentioned provenance of the categorical approach, it is ironic that it has come to be such an impediment to the sound administration of justice.  Last year, Justice Thomas chose a different metaphor than hole digging, but his point seemed much the same when he memorably observed that the “‘categorical approach’ has led the Federal Judiciary on a ‘journey Through the Looking Glass,’ during which we have found many ‘strange things.’” Taylor, 142 S. Ct. at 2026 (Thomas, J., dissenting) (quoting Lewis Carroll, Alice in Wonderland and Through the Looking Glass 227 (J. Messner ed. 1982)). We hope the journey, and the digging, ends soon.

In the meantime, we have no choice but to deny the government’s petition for en banc review.

"Courtroom workgroup dynamics and implementation of Three Strikes reform"

The title of this post is the title of this new article published online through the journal Law & Policy and authored by Elsa Y. Chen, Emily Chung and Emily Sands.  Here is its abstract:

In 2012, California's voters passed a ballot initiative that scaled back the state's “Three Strikes” sentencing law and permitted certain individuals who were serving 25-to-life prison terms to petition for resentencing and potentially release.  Using analysis of original qualitative interview data supplemented with court administrative records, this study examines how characteristics of courtroom workgroup members; their intergroup dynamics; political, professional, and administrative considerations; and allocated resources were perceived by court officials to facilitate or impede the implementation of this reform in county courts.

Availability of staff and budget was associated with a higher proportion of completed case dispositions in the first 2 years of implementation, but resources were not the only factor associated with timely case processing.  Courtroom actors' seniority, experience, and professional security facilitated agreement on processes, schedules, and other details.  Small, stable, close-knit groups established routine procedures and developed expertise more quickly, but could not always avoid bottlenecks or delays.  Less stable workgroups had higher rates of denial of petitions for resentencing.  Positions toward Proposition 36 shaped by political, professional, or other priorities were perceived to influence some elected DAs' positions and line prosecutors' behavior, manifesting in cooperation, opposition, or mixed messages.

In (sentencing) memoriam: noting a few major sentencing majority opinions by Justice O'Connor

Justice Sandra Day O'Connor was nominated to be the first female Supreme Court Justice by President Ronald Reagan when I was in middle school, and I had been a law professor for nearly a decade by the time she stepped down from being an active member of the Court.   As is true for nearly every Justice, sentencing rulings do not comprise a major part of the notable and consequential corpus of opinions that Justice O'Connor authored during a quarter century on the Court.  (SCOTUSblog reports in this lengthy tribute that "during her nearly quarter-century as a justice, O’Connor wrote 645 opinion.")  But there are still more than enough notable sentencing rulings from Justice O'Connor to make a very long list if I were to detailed them all.  As a memorial, I figured I would take a few moments to provide an abridged list of just some sentencing highlights among the hundreds of controlling opinions authored by Justice O'Connor:

Tison v. Arizona (1987)

Miller v. Florida (1987)

Penry v. Lynaugh (1989)

Coleman v. Thompson (1991)

Monge v. California (1998)

Ewing v. California (2003)

By keeping this list abridged and focused on sentencing-related opinions for the Court, I have left off many of Justice O'Connor's other major contribution in the criminal justice space.  In terms of other big court opinions in the criminal justice arena, Justice O'Connor's work in Teague v. Lane (1989) is arguable the most consequential; with a focus on separate opinions, her major dissents in Apprendi v. New Jersey (2000) and Blakely v. Washington (2004) are especially memorable.

I suspect readers may recall fondly (or perhaps not so fondly) lots of other criminal justice opinions authored by Justice O'Connor not listed above.  I welcome thoughts about her sentencing legacy and any sorts of comments about Justice O'Connor's role in shaping our modern criminal justice jurisprudence.

DPIC releases year-end report emphasizing small number of executing and death sentencing states in 2023

The Death Penalty Information Center this morning released its annual report here under the heading "The Death Penalty in 2023: Year End Report Only Five States Conducted Executions and Seven States Imposed New Death Sentences in 2023, the Lowest Number of States in 20 Years." Here is the part of the report's introduction, with lots of data and details following thereafter:

This year is the 9th consecutive year with fewer than 30 people executed (24) and fewer than 50 people sentenced to death (21, as of December 1). The 23 men and one woman who were executed in 2023 were the oldest average age (tied with 2021) and spent the longest average number of years in prison in the modern death penalty era before being executed. As in previous years, most prisoners had significant physical and mental health issues at the time of their executions, some of which can be attributed to the many years they spent in severe isolation on death row. Continued difficulties obtaining lethal injection drugs led some states to explore new, untested methods of execution or revive previously abandoned methods. Other states enacted or continued pauses on executions while the state’s method of execution was studied....

The Supreme Court granted only one stay of execution, reflecting the view of some members of the Court that prisoners bring “last-minute claims that will delay the execution, no matter how groundless.” The Court granted certiorari in only four death penalty cases, all of which pertained to procedural issues, and turned away the overwhelming majority of petitions filed by death-sentenced prisoners. Some state officials and legislatures may once again feel unrestrained by the risk of judicial oversight or correction; Florida directly flouted Supreme Court precedent with new legislation making a non-homicide crime a death-eligible offense, while states like Alabama announced plans to use nitrogen gas in an untested, risky method of execution.

Bureau of Justice Statistics releases "Federal Prisoner Statistics Collected Under the First Step Act, 2023"

Providing another report for prison data junkies, the Bureau of Justice Statistics today released this 26-page report titled ""Federal Prisoner Statistics Collected Under the First Step Act, 2023." Here the report's introduction and some of the "Key findings" that seemed most interesting:

The First Step Act of 2018 (FSA) requires the Bureau of Justice Statistics (BJS), through its National Prisoner Statistics program, to collect data from the Federal Bureau of Prisons (BOP) on specific topics and to report these data annually. BJS is required to report on selected characteristics of persons in prison, including marital, veteran, citizenship, and English-speaking status; education levels; medical conditions; and participation in treatment programs. In addition, BJS is required to report facility-level statistics, such as the number of assaults on staff by prisoners, prisoners’ violations of rules that resulted in time credit reductions, and selected facility characteristics including accreditation, on-site healthcare, remote learning, video conferencing, and costs of prisoners’ phone calls.

Collected in 2023, the statistics in this report are for calendar year 2022, which represented the fourth full year of reporting under the FSA. Data for calendar year 2023 will be available from the BOP in 2024. Unless otherwise noted, all counts in this report include persons held in federal correctional facilities operated by the BOP (122 institutional facilities).

• The federal prison population increased about 1%, from 156,542 at yearend 2021 to 158,637 at yearend 2022.

• At yearend 2022, there were 8,627 persons with prior military service in BOP facilities, accounting for about 5% of the total federal prison population.

• The number of non-U.S. citizens in federal prison at yearend 2022 was 24,078, virtually unchanged from 2020 and 2021....

• Seventy percent of persons in BOP facilities at yearend 2022 had earned a high school diploma, general equivalency degree (GED), or other equivalent certificate prior to their admission to federal prison (110,531), and an additional 3,543 earned their GED credential or equivalent certificate during 2022.

• In 2022, there were 10,177 instances of persons in special housing units, a 10% increase from 2021 (9,261)....

• In 2022, 20,880 federal prisoners participated in a nonresidential substance use disorder treatment program, while 12,035 participated in a residential program....

• In 2022, there were 80,490 prohibited acts committed by persons incarcerated in federal prisons....

• In 2022, BOP staff were physically assaulted by federal prisoners 965 times, which resulted in serious injuries 19 times and 12 prosecutions of prisoners....

• The BOP partnered with 1,580 external groups to provide recidivism reduction programming in 122 federal prison facilities in 2022.

• Sixty percent (947) of the BOP’s partnerships that were in place in 2022 to provide recidivism reduction programming were with faith-based groups.

• Of the 145,062 persons in federal prison as of December 31, 2022 assessed with the BOP’s recidivism risk tool, the Prisoner Assessment Tool Targeting Estimated Risk and Needs (PATTERN), 54% were classified as minimum or low risk for recidivism, 27% were classified as high risk for recidivism, and 19% as medium risk at yearend 2022.

• In 2022, PATTERN classified a higher percentage of females than males as minimum or low risk for recidivism (81% compared to 52%).

• As of December 31, 2022, PATTERN classified 61% of black and 59% of American Indian or Alaska Native federal prisoners as a medium or high risk of recidivism, compared to 36% of white and 27% of Asian, Native Hawaiian, or Other Pacific Islander prisoners.

• In 2022, PATTERN classified 83% of federal prisoners ages 55 to 64 and 93% of those age 65 or older as having a minimum or low risk of recidivism.

• In 2022, the BOP identified 41 Evidence-Based Recidivism Reduction (EBRR) Programs and 52 Productive Activities (PAs) that persons in federal prison could access for various needs, including antisocial behavior, anger management, substance abuse, parenting skills, and dyslexia.

Notable resources and notice from the US Sentencing Commission

Via an official US Sentencing Commission email this afternoon, I received word on two new items of note and will just cut-and-paste the details here:

Public Meeting Scheduled for December 14, 2023 at 2:00pm (ET)

We invite you to join us on Thursday, December 14, 2023 at 2 p.m. (ET) for a public meeting of the U.S. Sentencing Commission.  The meeting will be held at the Thurgood Marshall Federal Judiciary Building, One Columbus Circle, N.E., in Suite 2-500 (South Lobby). The Commission will also livestream and record this event at the link below. The agenda follows:

• Vote to Adopt August 2023 Meeting Minutes
• Report from the Chair
• Possible Vote to Publish Proposed Guideline Amendments and Issues for Comment

Livestream Link

Problem-Solving Court Resources

(November 30, 2023) As part of its policy priority work this year, the Commission collaborated with chief judges, clerks of court, and chief probation officers from all 94 federal judicial districts to compile and publicly release information in support of problem-solving court program development. Access an interactive map, table of program documents, and a timeline of Commission work at the link below.

• Explore Here

The big-ticket item here, of course, is "Possible Vote to Publish Proposed Guideline Amendments and Issues for Comment."  Last year's proposed guideline amendments were quite significant and consequential, and I am excited to see in about two weeks if this year's proposals will merit the same description.

Oklahoma completes execution despite clemency recommendation by Oklahoma Pardon and Parole Board

As detailed in this new PBS News Hour piece, "Oklahoma executed death row inmate Phillip Hancock on Thursday, despite his claims of self defense and a recommendation for clemency by the Oklahoma Pardon and Parole Board."  Here is more:

Republican Gov. Kevin Stitt’s decision to allow the execution to move forward comes as some state Republicans and advocates call for a pause in executions and a review of Oklahoma’s 36 pending death row cases.

Hancock, 59, was convicted of two murders in 2001.  His attorneys and supporters maintain that he acted in self-defense, saying he was unarmed when he entered an Oklahoma City residence where Robert Jett Jr., 37, and James Lynch, 58, the two murder victims, were present.  Hancock has said he was attacked, beaten with a breakover bar, and threatened with a gun before managing to retrieve the weapon and fatally shooting the two men.  Hancock’s defense team argued the trial lacked physical evidence supporting the prosecution’s version of events.  A woman present during the incident testified that she could not witness the struggle, further complicating the narrative over what happened.

The state board voted 3-2 in favor of clemency in early November.  It was the fourth such recommendation since the state resumed executions in 2021, following a six-year moratorium. Stitt, who previously commuted the sentence of Julius Jones in 2021, did not intervene this time. He denied Hancock’s request for clemency just after 10 a.m. local time, when the execution was scheduled to begin....

Oklahoma has executed 122 people since 1976, the highest number of executions per capita in the country. 

“We are profoundly disappointed that Gov. Stitt has rejected the Pardon and Parole Board’s recommendation of clemency for Phillip Hancock,” Brett Farley of the Oklahoma Conservatives Concerned About the Death Penalty said in a statement. Oklahoma’s practice of capital punishment continues to be riddled with problems, including the inability of the state to prevent the execution of innocent people. Should the state proceed with the scheduled execution on Thursday, it will be yet another gross miscarriage of justice. Phillip’s case is one more reminder why we must insist state leaders reinstate a moratorium in order to correct these problems.”

Republican state Reps. Kevin McDugle and Justin J.J. Humphrey have been critical of Oklahoma’s death row sentences, saying people have been subject to system-wide failures in the state’s justice system, from ineffective defense counsel to prosecutorial overreach.  McDugle said that Hancock was undeserving of such a punishment.  “Right now I don’t believe in the death penalty in Oklahoma. I don’t,” McDugle told the PBS NewsHour in October.  “That’s why we are trying to fix it because if we can’t fix it to where we can execute those who deserve to be executed and quit executing those who don’t deserve to be executed … then we need to get rid of it.”

Earlier this year, supporters of Hancock, including his attorneys, provided the state board with key declarations.  One statement from Hancock’s former girlfriend claimed she arranged with one of the victims to lure Hancock to the house to be “taken care of.”  Hancock’s trial attorney, who admitted to a relapse of drug and alcohol addiction during the case, expressed embarrassment about his representation.  The foreperson of the jury that convicted Hancock provided a declaration that the majority of jurors believed Hancock initially acted in self-defense but later became the aggressor.

Bureau of Justice Statistics releases "Prisoners in 2022 – Statistical Tables"

Via email, I learned that the Bureau of Justice Statistics today released its latest yearly accounting of US prison populations titled "Prisoners in 2022 – Statistical Tables." The first page of the 48-page document provides this overview and "highlights":

At yearend 2022, correctional authorities in the United States had jurisdiction over 1,230,100 persons in state or federal prisons, an increase of 2% or 25,100 persons from yearend 2021 (1,205,100 persons) (figure 1). This rise erased the 1% decline reported in 2021 and marked the first increase in the combined state and federal prison population in almost a decade (since 2013). The number of persons held under the jurisdiction of the Federal Bureau of Prisons (BOP) grew 1% (up 2,000 persons) from 2021 to 2022, while the number held under the jurisdiction of state correctional authorities increased 2% (up 23,100).

Ninety-six percent of persons in U.S. prisons in 2022 were sentenced to more than 1 year under the jurisdiction of state or federal correctional authorities (1,185,600). Thirty-five states and the BOP showed growth in their sentenced prison populations from 2021 to 2022, with increases of at least 1,000 persons in eight states and the BOP.

• The U.S. prison population was 1,230,100 at yearend 2022, a 2% increase from yearend 2021 (1,205,100).

• The number of females in state or federal prison increased almost 5% from yearend 2021 (83,700) to yearend 2022 (87,800).

• Nine states and the BOP increased their total prison populations by over 1,000 persons from yearend 2021 to yearend 2022.

• State correctional authorities had jurisdiction over 1,039,500 persons sentenced to at least 1 year in prison in 2022, while the BOP had legal authority over 146,100 persons with similar sentences.

• At yearend 2022, an estimated 32% of sentenced state and federal prisoners were black; 31% were white; 23% were Hispanic; 2% were American Indian or Alaska Native; and 1% were Asian, Native Hawaiian, or Other Pacific Islander.

• The imprisonment rate at yearend 2022 (355 sentenced prisoners per 100,000 U.S. residents of all ages) was down 26% from yearend 2012 (480 per 100,000) but up 1% from yearend 2021 (350 per 100,000).

• In 2022, states and the BOP admitted 469,200 persons to prison, which was 20,800 more than they released that year (448,400) and 48,200 more than they admitted the year before (421,000).

"The Imperialism of Desert"

The title of this post is the title of this new paper authored by Ofer Malcai and Re'em Segev ow available via SSRN. Here is its abstract:

What is the relation between desert and other values such as equality, priority for the worse off, and utility?  According to the common view, desert and these other values reflect distinct concerns: some are about distributive justice, some about retributive justice, and some (most clearly, utility) are not concerned with justice at all.  However, another view holds that while desert is a basic value, other values are merely derived from it.  This controversy is relevant, for instance, to allocative decisions and criminal punishment, where we need to know if other values should be balanced against desert.  Yet, despite its theoretical significance and practical importance, this topic is underexplored.  Aiming to fill this gap, we consider the arguments for and against the competing views.

Prison Policy Initiative sets out long list of "Winnable criminal justice reforms" for state systems

Prison Policy Initiative has produced this new 16-page document titled "Winnable criminal justice reforms: A Prison Policy Initiative briefing on promising state reform issues for 2024."  I believe this kind of publication is now an annual production by PPI, and this year's version lists 32 suggested reforms.  Here is how the report describes its mission, followed by links to the main reform areas identified:

In this year’s guide to winnable criminal justice reforms, we’ve added information on how Medicaid and Medicare laws can be changed to better serve people in reentry, and we’ve added a section on efforts around the country to legalize marijuana and decriminalize other drugs.  As always, we’ve also updated our list of Winnable criminal justice reforms and added new example bills and resources where you can learn more.

While this briefing is not intended to be a comprehensive platform, we’ve curated this list to offer policymakers and advocates straightforward solutions that would have the greatest impacts on reducing incarceration and ameliorating harms experienced by those with a conviction history, without further investments in the carceral system.  We have also included some talking points and resources that can be used to push back when carve-outs to criminal justice reforms (that is, categorical exclusions of people who would benefit from reforms) are being discussed.

Because each state’s criminal legal system varies so much — from law and procedures, the data collected, and even how the same words are defined — it can be difficult to apply lessons from other states to the same problem in one’s own.  This guide is designed to facilitate the sharing of ideas and information across states.  That said, while we point to multiple bills, model legislation, and regulations in this document, we also recognize that many of these examples reflect compromise and could be strengthened or made more comprehensive.  This information is intended to serve as a resource as you determine which problems are a priority in your state and which lessons from elsewhere are most useful.

The reforms focus on nine areas:

• Expanding alternatives to criminal justice system responses to social problems
• Reducing the number of people entering the “Revolving doors” of jails and prison
• Improving sentencing structures and release processes to encourage timely and successful releases from prison
• Reducing the footprint of probation and parole systems and supporting success on supervision
• Protecting incarcerated people and families from exploitation
• Promoting physical and mental health among incarcerated and formerly incarcerated people
• Giving all communities equal voice in how our justice system works
• Setting people up to succeed upon release
• Eliminating relics of the harmful and racist “war on drugs”