Sentencing Law and Policy

GAO releases big report concluding "Bureau of Prisons Should Improve Efforts to Implement its Risk and Needs Assessment System"

The US Government Accountability Office (GAO) has released this big new Report to Congressional Committees fully titled "Federal Prisons: Bureau of Prisons Should Improve Efforts to Implement its Risk and Needs Assessment System."  The full report runs over 100 pages, but it starts with "Highlights" that include this text:

Why GAO Did This Study

Approximately 45 percent of people released from a federal prison are rearrested or return within 3 years of their release.  The First Step Act included certain requirements for DOJ and BOP aimed to reduce recidivism, including requiring the development of a system to assess the recidivism risk and needs of incarcerated people.  It also required BOP to provide incarcerated people with programs and activities to address their needs and if eligible, earn time credits.

The First Step Act required GAO to assess the DOJ and BOP’s implementation of certain requirements.  This report addresses the extent to which DOJ and BOP implemented certain First Step Act requirements related to the (1) risk and needs assessment system, (2) identification and evaluation of programs and activities, and (3) application of time credits.

GAO reviewed legislation and DOJ and BOP documents; analyzed 2022 BOP data; and interviewed DOJ and BOP headquarters officials and BOP’s employee union.  GAO also conducted non-generalizable interviews with officials from four BOP regional offices facilities, selected to ensure a mix of different facility characteristics.

What GAO Found

Since the enactment of the First Step Act of 2018, the Department of Justice (DOJ) developed a risk assessment tool to measure an incarcerated person’s risk of recidivism.  In addition, the Bureau of Prisons (BOP) modified its existing needs assessment system to identify incarcerated people’s needs, that if addressed may reduce their recidivism risk. However, BOP does not have readily-available, complete, and accurate data to determine if assessments were conducted within required First Step Act and internal timeframes. As of October 2022, BOP plans to implement monitoring efforts to assess First Step Act requirements, but has not determined if these efforts will measure whether assessments are completed on time.  Without such data and monitoring, BOP is not in a position to determine if staff complete assessments on time, which are necessary for earning First Step Act time credits.  These time credits may allow incarcerated people to reduce the amount of time they spend in a BOP facility.

BOP created a plan to evaluate its evidence-based programs, as required by the First Step Act.  However, the plan did not include quantifiable goals that align with certain First Step Act requirements, or have clear milestone dates.  By including such elements in its plan, BOP will be better positioned to ensure its evaluations are conducted in a timely manner, and align with the First Step Act.  BOP has some data on who participates in its programs and activities, but does not have a mechanism to monitor if it offers a sufficient amount. Without such a mechanism, BOP cannot ensure it is meeting the incarcerated population’s needs.  Further, while BOP offers unstructured productive activities for which incarcerated people may earn time credits, BOP has not documented a complete list or monitored them.  Without doing so, BOP cannot ensure it provides transparent information.

BOP’s procedure for applying time credits has evolved over time.  Initially, BOP did not have data necessary to track time credits and developed an interim approach in January 2022.  Subsequently, BOP implemented an automated-calculation application for time credits that took into account factors the interim procedure did not.  As a result, some incarcerated people may have had their time credits reduced.  In November 2022, BOP issued its First Step Act Time Credits program statement, with new procedures.

What GAO Recommends

GAO is making eight recommendations for BOP to improve its implementation of the First Step Act, including collecting data, ensuring its evaluation plan has goals and milestones, having monitoring mechanisms, and tracking unstructured productive activities. BOP concurred with six recommendations, but did not concur with two.  GAO continues to believe these are valid.

"After McCleskey"

The title of this post is the title of this recent paper authored by Robert Tsai recently posted to SSRN. Here is its abstract:

In the 1987 decision, McCleskey v. Kemp, the Supreme Court rejected a black death row inmate’s argument that significant racial disparities in the administration of Georgia’s capital punishment laws violated the Fourteenth Amendment’s Equal Protection Clause.  In brushing aside the most sophisticated empirical study of a state’s capital practices to date, that ruling seemingly slammed the door on structural inequality claims against the criminal justice system.  Most accounts of the case end after noting the ruling’s incompatibility with more robust theories of equality and meditating on the deep sense of demoralization felt by social justice advocates.  One might be forgiven for assuming that defense lawyers abandoned structural inequality claims and the use of quantitative evidence in capital cases altogether.

But that would be wrong and incomplete.  For the first time, this Article recounts an unusual chapter of the fallout from the McCleskey litigation, focusing on the litigation and social activism in the wake of that decision.  It draws on interviews with anti-death penalty lawyers working for or allied with the Southern Center for Human Rights in Georgia, including Stephen Bright, Ruth Friedman, Bryan Stevenson, and Clive Stafford Smith.  It is also based on archival research into their case files.  Drawing from these resources, this Article shows how a subset of cause lawyers in the late 1980’s and early 90’s had a remarkable reaction to that demoralizing ruling: they engaged in a distinctive form of “rebellious localism.”  Instead of forsaking structural equality claims, they doubled down on them.  Rather than make peace with what they believed to be an unjust ruling, they sought to subvert it.  They also scrambled to formulate reliable quantitative evidence of intentional discrimination.  Instead of accepting existing racial disparities in the criminal justice system, they went after prosecutors and state court judges to expose how racial minorities and poor people wound up on death row more often than their white, wealthier counterparts.

Understanding this untold episode of legal history teaches us about the limits of judicial control over constitutional lawmaking, the unanticipated consequences of trying to insulate the legal order from accountability, and the possibilities for keeping clients alive and earning pro-equality victories when political conditions are inhospitable.  For those who pay attention, there are lessons that might humble the most ideologically committed judges and inspire reformers who confront challenging legal circumstances.

CCJ releases "How long is long enough?: Task force on long sentences final report"

I have repeatedly noted this post from last year discussing the Council of Criminal Justice's impressive Task Force on Long Sentences, in part because that Task Force for the better part of a year has been producing all sorts of important research and analysis concerning long sentences (see prior posts linked below).  And today I am excited to see that the Task Force's main report, titled "How long is long enough?," has been released today with 14 thoughtful recommendations.  Released along with this full report is this press release, which helps summarize the work of the Task Force and its report.  Here is how the press release starts:

As cities across the nation grapple with effective responses to increases in violent crime, a task force co-chaired by former U.S. Deputy Attorney General Sally Yates and former U.S. Rep. Trey Gowdy today released a report outlining a comprehensive approach for the use of lengthy prison sentences in the United States. 

The report, How Long is Long Enough?, presents 14 recommendations to enhance judicial discretion in sentencing, promote individual and system accountability, reduce racial and ethnic disparities, better serve victims of crime, and increase public safety.  Defining long sentences as prison terms of 10 years or longer, the panel’s proposals include:

• Shifting savings from reductions in the use of long prison sentences to programs that prevent violence and address the trauma it causes individuals, families, and communities (Recommendation 1).
• Allowing judges to consider all relevant facts and circumstances when imposing a long sentence, and requiring that sentencing enhancements based on criminal history are driven by individualized assessments of risk and other factors (Recommendations 6 and 8)
• Providing selective “second look” sentence review opportunities and expanding access to sentence-reduction credits (Recommendations 11 and 12)
• Focusing penalties in drug cases on a person’s role in a trafficking organization, rather than the amount of drug involved, (Recommendation 7)
• Reducing recidivism by providing behavioral health services and other rehabilitative living conditions and opportunities in prison (Recommendations 3 and 13)
• Strengthening services for all crime victims and survivors by enforcing victims’ rights, removing barriers to services, and creating restorative justice opportunities (Recommendations 2, 4, and 9)

Prior related posts on CCJ's Task Force on Long Sentences:

• Notable CCJ new task force examining long prison terms
• Council on Criminal Justice releases "Long Sentences by the Numbers" 
• Council on Criminal Justice releases "Long Sentences: An International Perspective" 
• Council on Criminal Justice releases Illinois analysis of "The Public Safety Impact of Shortening Lengthy Prison Terms" 
• CCJ releases "Long sentences, better outcomes: Opportunities to improve prison programming" 
• CCJ report explores "The Relationship Between Sentence Length, Time Served, and State Prison Population Levels" 

With DOJ asking, will SCOTUS quickly take up a post-Bruen case on gun possession by thoe subject to DV orders?

The question in the title of this post is prompted by the interesting news that the feds have now filed a cert petition seeking review of the Fifth Circuit panel ruling in US v. Rahimi (first discussed here). The Rahimi opinion declared unconstitutional 18 USC § 922(g)(8)'s prohibition on gun possession by those subject to certain domestic-violence protective orders.

Notably, the government could have sought en banc review, but decided to seek cert. And within the petition, the government explains that, due to "the significant disruptive consequences of the Fifth Circuit’s decision, the government is filing this petition for a writ of certiorari on a highly expedited schedule — a little more than two weeks after the issuance of the Fifth Circuit’s final amended opinion — in order to allow the Court to consider the petition before it recesses for the summer."  This Hill article provides some details:

The government argued in the petition that the Fifth Circuit “overlooked the strong historical evidence supporting the general principle that the government may disarm dangerous individuals,” instead dismissing each historical example on the grounds that it differed from the law “in some way.”

“Although courts interpreting the Second Amendment must consider text, history, and tradition, they should not focus on whether the law at issue has ‘a historical twin,’” the DOJ said. “To the contrary, this Court emphasized that ‘even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.’”

The Justice Department's full cert petition is available at this link.  It should be quite interesting to see if SCOTUS decides to take up the case on an expedited basis even before there is a direct circuit split.  Notably, as discussed in this prior post, the Supreme Court's landmark Bruen decision has already created considerable legal uncertainty for a variety of federal gun control laws.  As suggested before, because numerous lower-court rulings are striking down numerous federal criminal laws, I suspect the Justices will get back to these Second Amendment matters pretty soon.   But "pretty soon" in Supreme Court timelines does not really mean "soon," so I would be eager to hear reader thoughts about when Rahimi or perhaps other cases may end up on the SCOTUS docket.

Some (of many) prior recent related posts:

• By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements 
• New district court opinion "holds that § 922(g)(8) is unconstitutional under Bruen's framework"
• Fifth Circuit panel declares unconstitutional federal prohibition on firearm possession for someone subject to domestic violence restraining order
• After recent wave of notable rulings, a wave of new Second Amendment commentary 
• How long until the Supreme Court takes up another Second Amendment case after Bruen? 

Idaho about to become latest state to authorize execution by firing squad

As reported in this AP piece, "Idaho is poised to allow firing squads to execute condemned inmates when the state can't get lethal-injection drugs, under a bill the Legislature passed Monday with a veto-proof majority."  Here is more:

Firing squads will be used only if the state cannot obtain the drugs needed for lethal injections — and one death row inmate has already had his scheduled execution postponed multiple times because of drug scarcity.

The move by Idaho lawmakers is in line with those by other states that in recent years have scrambled to revive older methods of execution because of difficulties obtaining drugs required for longstanding lethal injection programs. Pharmaceutical companies increasingly have barred executioners from using their drugs, saying they were meant to save lives, not take them.  Idaho Republican Gov. Brad Little has voiced his support for the death penalty but generally does not comment on legislation before he signs or vetoes it.

Only Mississippi, Utah, Oklahoma and South Carolina currently have laws allowing firing squads if other execution methods are unavailable, according to the Death Penalty Information Center.  South Carolina’s law is on hold pending the outcome of a legal challenge.

Some states began refurbishing electric chairs as standbys for when lethal drugs are unavailable. Others have considered — and at times, used — largely untested execution methods.  In 2018, Nevada executed Carey Dean Moore with a never-before-tried drug combination that included the powerful synthetic opioid fentanyl. Alabama has built a system for executing people using nitrogen gas to induce hypoxia, but it has not yet been used.

During a historic round of 13 executions in the final months of Donald Trump’s presidency, the federal government opted for the sedative pentobarbital as a replacement for lethal drugs used in the 2000s. It issued a protocol allowing firing squads for federal executions if necessary, but that method was not used.  Some lawyers for federal inmates who were eventually put to death argued in court that firing squads actually would be quicker and cause less pain than pentobarbital, which they said causes a sensation akin to drowning.

However, in a 2019 filing, U.S. lawyers cited an expert as saying someone shot by firing squad can remain conscious for 10 seconds and that it would be “severely painful, especially related to shattering of bone and damage to the spinal cord.”...

Idaho Sen. Doug Ricks, a Republican who co-sponsored that state's firing squad bill, told his fellow senators Monday that the state's difficulty in finding lethal injection drugs could continue “indefinitely” and that he believes death by firing squad is “humane.”...

But Sen. Dan Foreman, also a Republican, said firing-squad executions would traumatize the people who who carry them out, the people who witness them and the people who clean up afterward. “I've seen the aftermath of shootings, and it's psychologically damaging to anybody who witnesses it,” Foreman said.  “The use of the firing squad is, in my opinion, beneath the dignity of the state of Idaho.”

The bill originated with Republican Rep. Bruce Skaug, prompted in part by the state's inability to execute Gerald Pizzuto Jr. late last year.  Pizzuto, who now has terminal cancer and other debilitating illnesses, has spent more than three decades on death row for his role in the 1985 slayings of two gold prospectors.

The Idaho Department of Correction estimates it will cost around $750,000 to build or retrofit a death chamber for firing squad executions.  Agency Director Jeff Tewalt last year told lawmakers there would likely be as many legal challenges to planned firing squad executions as there are to lethal injections.  At the time, he said he would be reluctant to ask his staffers to participate in a firing squad.

"The 'Cruel and Unusual' Legacy of the Star Chamber"

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

Supreme Court justices have read the “cruel and unusual punishments” clause as prohibiting torturous methods of punishment, prohibiting grossly disproportionate punishments, and/or prohibiting arbitrary discretion over the infliction of the death penalty.

All three accounts face familiar and formidable historical challenges.  There is general agreement that the founders took the clause from Article 10 of the English Bill of Rights, and that Article 10 repudiated the horrific sentence passed on Titus Oates by the infamous Judge Jeffreys in 1685.  Each of the major interpretations fails to account for important pieces of the Oates puzzle.

The methods of punishment inflicted on Oates were two days of horrific flogging, recurring stands in the pillory, and life imprisonment.  These methods were not capital, were not unusual in 1685, and were all included in the Crimes Act passed by the First Congress.  Oates’s sentence was not, by contemporary standards, disproportionate. His perjuries caused the executions of numerous innocents, quite possibly by torture.  By the standards of the times, he deserved hanging.

The Eighth Amendment, however, responded to anti-federalist fears that Congress might adopt torturous methods of capital punishment.  Prevailing theories fail to account for the disconnect between what the English provision did and what the American provision meant to do.

This Article argues that prevailing accounts are breathtakingly incomplete.  The full story begins not with the flogging of Titus Oates in 1685, but with the abolition of the Star Chamber in 1641.  Sentencing Oates, Jeffreys claimed for King's Bench all the Star Chamber's lawless power to determine punishments less than capital.  The English Article 10 repudiated this attempt to resurrect the Star Chamber.  Then Congress, responding to anti-federalist fears about Congress adopting European-style executions by torture, freighted the "cruel and unusual" language with two additional meanings.  The clause now applied to capital, as well as noncapital, penalties.  It now also restricted legislative as well as judicial discretion.  Synthesizing the English original and the later concerns of the American founders, the Eighth Amendment forbids lawless discretion in both capital and noncapital cases, and torturous methods of punishment.  Proportionality was left to the legislature, subject to the powerful check provided by a constitutional requirement of even-handed enforcement.

At a time when the Court is reconsidering longstanding precedents from originalist premises, this account is not only a major advance in the academic literature.  It may also be, practically speaking, a matter of life and death.

Rounding up some public defender commentary on Gideon's 60th anniversary

I saw a lot of interesting headlines in recent days in conjunction with the 60th anniversary of the Supreme Court's ruling in Gideon v. Wainwright.  Here is a sampling from various sources:

From Fox News, "Supreme Court's 'Gideon' ruling at 60 and the right to counsel: In their own words"

From the Los Angeles Times, "Criminal defendants’ right to counsel still shortchanged in much of California"

From NPR, "You have the right to a lawyer, but public defenders note a lack of resources, respect"

Oregon Public Broadcasting, "A constitutional crisis in Oregon’s criminal justice system continues, 60 years after landmark US Supreme Court decision"

The Sixth Amendment Center, "The State of the Nation on Gideon’s 60th Anniversary"

From Teen Vogue, "Gideon v. Wainwright Was a Landmark Decision, But Women Invented the Idea of the Public Defender"

From the US Courts, "60 Years Later, Gideon’s Legacy Lives On"

From the US Department of Justice, "Justice Department Commemorates the 60th Anniversary of Gideon v. Wainwright"

US Sentencing Commission posts over 1600 pages of public comment on proposed amendments

Perhaps unsurprisingly in light of a whole lot of notable proposed amendments to the US Sentencing Guidelines, the US Sentencing Commission received a whole lot of public comment in response to its "Notice and request for public comment" on these amendments.  Helpfully, for folks interested in seeing some of the highlights, the USSC has made big sample available here with lots of helpful links to each of the issues covered and with this explanation:

The Commission reviews and catalogs all public comment submissions for future reference and official recordkeeping purposes.  A representative sample of public comment is carefully selected, redacted, and posted online to provide the public with the kind of information considered by the Commissioners during their deliberations." 

Especially because I am distracted by a few different and distinct obsessions this weekend, I am certain I will not get a chance to review much of the commentary anytime soon.  But I welcome folks using the comments to flag any especially interesting comments (or any predictions they may have about what the final amendment will look like). 

A few recent related posts:

• US Sentencing Commissions publishes proposed guideline amendments and issues for comment 
• US Sentencing Commission to begin series of public hearings on its proposed guideline amendments
• US Sentencing Commission soon to begin second set of public hearings on proposed guideline amendments

"The Minimalist Alternative to Abolitionism: Focusing on the Non-dangerous Many"

The title of this post is the title of this new essay authored by Christopher Slobogin now available via SSRN.  Here is its abstract:

In The Dangerous Few: Taking Prison Abolition and Its Skeptics Seriously, published in the Harvard Law Review, Thomas Frampton proffers four reasons why those who want to abolish prisons should not budge from their position even for offenders who are considered dangerous.  This essay demonstrates why a criminal law minimalist approach to prisons and police is preferable to abolition, not just when dealing with the dangerous few but also as a means of protecting the nondangerous many.  A minimalist regime can radically reduce reliance on both prisons and police, without the loss in crime prevention capacity and legitimacy that is likely to come with abolition.

Prior related post:

• "The Dangerous Few: Taking Seriously Prison Abolition and Its Skeptics" 

"After the Criminal Justice System"

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

Since the 1960s, the “criminal justice system” has operated as the common label for a vast web of actors and institutions.  But, as critiques of mass incarceration have entered the mainstream, academics, activists, and advocates increasingly have stopped referring to the “criminal justice system.”  Instead, they have opted for critical labels — the criminal legal system, the criminal punishment system, the prison industrial complex, etc.  What does this re-labeling accomplish?  Does this change in language matter to broader efforts at criminal justice reform or abolition?  Or, does an emphasis on labels and language distract from substantive engagement with the injustices of contemporary criminal law?

In this Article, I examine that move to abandon the “criminal justice system” as a means of describing U.S. institutions of criminal law and its enforcement.  I identify three alternative labels that are gaining traction in academic and activist circles: the criminal legal system, the criminal punishment system, and the prison industrial complex.  I argue that each reflects not only a different vision of U.S. criminal law but also a different vision of what is wrong with it.  My goal in this Article is not to advocate for a correct new label.  Rather, it is to explain how the different names provide a window into different ways of understanding how the United States punishes and controls individuals and communities.  Identifying an alternate label (or opting to retain the criminal justice system) should force much-needed reflection about what makes criminal institutions distinct from other institutions of governance.  And, such clarity should be essential to any project of reform or abolition.

This Article contributes to three literatures.  First, it is a part of a larger project of unpacking how we as a society (and particularly as legal elites) talk about and understand criminal law. Second, this Article contributes to a literature that examines the boundaries of criminal law and the ways in which criminal legal institutions interact with ostensibly non-criminal ones.  Third, and relatedly, this Article contributes to a critical literature on siloing in scholarship and activism.  By emphasizing the fuzzy boundaries of the “criminal justice system,”  I hope to stress that studying and mobilizing against the injustices of the U.S. criminal legal apparatus requires grappling with a host of diverse legal doctrines and sociopolitical forces.

Notable Seventh Circuit discussion of how a combination of factors can amount to "extraordinary and compelling reasons"

A helpful colleague made sure I did not miss a short ruling authored by Judge Frank Easterbrook for the Seventh Circuit concerning factors in support of motions for compassionate release. The ruling in US v. Vaughn, No. 22-2427 (7th Cir. March 15, 2023) (available here), is worth reading in full, and this is part of the discussion that seems especially notable:

Vaughn maintains that his arguments collectively identify “extraordinary and compelling reasons” even if none of them does so independently. At least two circuits have held that it is permissible to consider reasons jointly as well as severally. United States v. Ruvalcaba, 26 F.4th 14, 28 (1st Cir. 2022); United States v. McGee, 992 F.3d 1035, 1048 (10th Cir. 2021). But one has gone the other way, remarking: “[W]hy would combining unrelated factors, each individually insufficient to justify a sentence reduction, amount to more than the sum of their individual parts?” United States v. McKinnie, 24 F.4th 583, 588 (6th Cir. 2022). See also United States v. McCall, 56 F.4th 1048, 1066 (6th Cir. 2022).

The Sixth Circuit’s rhetorical question has some intuitive appeal. Often 0 + 0 = 0. But not always. One persistent error in legal analysis is to ask whether a piece of evidence “by itself” passes some threshold — to put evidence in compartments and ask whether each compartment suffices. But when one court of appeals asked whether Fact A showed probable cause for an arrest, then whether Fact B did so, whether Fact C did so, and so forth, the Supreme Court reversed in a sharp opinion reminding all judges that evidence should not be compartmentalized.

[T]he [court of appeals] viewed each fact “in isolation, rather than as a factor in the totality of the circumstances.”  This was “mistaken in light of our precedents.”  The “totality of the circumstances” requires courts to consider “the whole picture.”  Our precedents recognize that the whole is often greater than the sum of its parts — especially when the parts are viewed in isolation. Instead of considering the facts as a whole, the [court of appeals] took them one by one. … The totality-of-the-circumstances test “precludes this sort of divide-and-conquer analysis.”

District of Columbia v. Wesby, 138 S. Ct. 577, 588 (2018) (internal citations omitted). Similarly, we have held that in employment-discrimination cases a district court must consider the evidence as a whole, rather than sorting facts into boxes and asking whether each suffices.... Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765–66 (7th Cir. 2016).

If we conceive of “extraordinary and compelling reasons” as those differentiating one prisoner’s situation from 99% of other prisoners, it is easy to see how Circumstance X could be true of only 10% of prisoners, Circumstance Y of 10%, and Circumstance Z of 10% — each insufficient to meet the threshold, but if they are independent then collectively enough to place the applicant among only 0.1% of all federal prisoners.  We do not say here that 99% is the threshold for “extraordinary and compelling reasons”; in the absence of guidance from the Sentencing Commission, identifying the threshold is committed to the discretion of district judges, with deferential appellate review.  See United States v. Gunn, 980 F.3d 1178 (7th Cir. 2020).  Our point, rather, is that no matter how the threshold is defined, a combination of factors may move any given prisoner past it, even if one factor alone does not.  This leads us to disagree with the Sixth Circuit’s approach.

This does not help Vaughn in the end, however, because the discretion to evaluate multiple circumstances resides principally in the district courts.

Columnist George Will argues high plea rates can be explained by, "to a significant extent, coercion"

In this new Washington Post piece, headlined "How government’s excessive reliance on plea deals can undermine justice," George Will highlights the ABA's recent Plea Bargain Task Force Report (discussed here) to lament how prevalent pleas have become in our criminal justice systems.  Here are some excerpts:

Herewith a two-question quiz: What is the only right affirmed both in the Constitution of 1787 and in the Bill of Rights? And what governmental practice produces the most pervasive and glaring civil rights deprivations?

The answer to the first question is: the right to trial by jury. (Article III, Section 2: “The trial of all crimes, except in cases of impeachment, shall be by jury”; Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”) The answer to the second is: plea bargaining as currently practiced, which often effectively nullifies this right.

A just-published report by an American Bar Association task force says plea bargaining has not only become the primary way to resolve criminal cases, “some jurisdictions have not had a criminal trial in many years.” Think about that: Years can pass without a defendant exercising the constitutional right to an adversarial process conducted in public in front of a neutral judge and a jury of the defendant’s peers....

Last year, 98.3 percent of federal criminal convictions, and about 95 percent in the states, resulted from bargained guilty pleas. Why? To a significant extent, coercion.

This often begins with detention in frightening conditions: To be arrested is to be suddenly plunged into control by a government speaking an often arcane legal language.  Then there is “stacking” — prosecutors piling on charges which, in a context of mandatory minimum sentences, force defendants to choose between risking potentially life-ruining trials and pleading guilty to lesser charges, even if innocent....

The task force’s report stresses that plea bargaining has legitimate uses. It incentivizes defendants to accept responsibility for criminal conduct, and offers finality to their victims and the community.  Furthermore, prosecutorial resources are scarce, and plea bargaining is a mechanism for efficiently resolving cases.  No value in life, however, invariably supersedes all others, and the pursuit of efficiency has too often become “the driving force of criminal adjudication,” supplanting transparency and justice....

The Cato Institute’s Clark Neily and others suggest that plea bargaining on today’s “industrial scale” could be countered by a “trial lottery”: A small percentage of cases in which plea agreements have been reached should be randomly sent to trials.  How often would the government be unable to secure a conviction after it has managed to induce a pre-trial guilty plea?  Let’s find out.

I wish Will had mentioned the problems of acquitted conduct sentencing enhances in his discussion of the various forces that contribute to the very high rate of guilty pleas.  I raise the issue in part because as long as significant sentencing increases based on acquitted conduct remains permissible, prosecutors will always have a great incentive to bring as many charges as possible even if some plea cases were to "be randomly sent to trials." 

Prior related post:

• ABA Criminal Justice Section releases "2023 Plea Bargain Task Force Report" 

"The Unconstitutional Conditions Vacuum in Criminal Procedure"

The title of this post is the title of this notable new article now available via SSRN authored by Kay Levine, Jonathan Remy Nash and Robert A. Schapiro. Here is its abstract:

For more than a century the United States Supreme Court has applied the unconstitutional conditions doctrine across a variety of settings, scrutinizing government efforts to condition the tradeoff of rights for benefits in the speech, funding, and takings contexts, among others.  The Court has declined, however, to invoke the doctrine in the area of criminal procedure, where people accused of crime are often asked to — and typically do — surrender their constitutional rights under the Fourth, Fifth, and Sixth Amendments in return for some benefit.  Despite the Court’s insistence that the unconstitutional conditions doctrine applies broadly across the Bill of Rights, its jurisprudence demonstrates that the doctrine functions as a selective shield that offers no support for certain rightsholders.

We argue that the Court’s approach undermines vital rights, with especially harmful consequences for people who most need judicial protection.  Since individuals accused of crime are often extremely vulnerable to coercive government measures, the important safeguards offered by the unconstitutional conditions doctrine should be at their apex in the criminal procedure setting.  Indeed, lower federal courts and some state courts have applied the doctrine to criminal procedure issues, demonstrating the doctrine’s utility in this domain.  We conclude that the Supreme Court’s aversion to using the unconstitutional conditions doctrine in its criminal procedure docket rests not on a principled doctrinal distinction, but on a failure to take seriously the constitutional predicaments facing those charged with crimes.  In accordance with its obligation to render equal justice under law, the Court must apply the unconstitutional conditions doctrine in this most critical area.

With pandemic legally winding down, should Congress build in CARES Act success to greatly expand BOP home confinement authority?

The question in the title of this post is prompted by this notable new Forbes piece by Walter Pavlo headlined "Bureau Of Prisons Sees End Of Cares Act Home Confinement, Some Prisoners Will Be Left Behind."  I recommend the full piece, and here are excerpts (with links from the original):

The CARES Act provided funding for the United States to tackle the COVID-19 pandemic, but it provided the Federal Bureua of Prisons (BOP) a means to both reduce crowding in federal prisons and place some minimum security prisoners with underlying health conditions on home confinement to complete their sentences. Over 12,000 prisoners have successfully been transferred to home confinement under the CARES Act and few have violated the conditions that returned them to prison. The Office of Legal Counsel determined that BOP’s preexisting authorities did not require that prisoners in extended home confinement be returned en masse to correctional facilities when the emergency period ends. Now, the Biden Administration has called for the end of national emergency and public health emergency associated with the COVID-19 pandemic on May 11, 2023 and that will mean that some prisoners will not see the benefit of home confinement.

The Federal Register published a draft of the final rule to end CARES Act home confinement in June 2022.  Comments and the final rule itself are now at the White House and will soon be published. In the draft proposal, the Department of Justice indicated that the BOP would stop home confinement placements of prisoners 30 days after the emergency period ends, so mid-June 2023.

As the program sunsets, one would think the BOP is slowing transfer of some prisoners to home confinement under CARES Act, but not so. Randilee Giamusso, who works at the BOP’s Office of Public Affairs gave a statement that, “The Bureau of Prisons (BOP) has not made efforts to slow CARES Act home confinement placements as the end of the CARES Act approaches. We have issued no guidance regarding this matter.”  That is welcome news to prisoners who meet the eligibility requirements for CARES Act placement.

Many are also hoping that the DOJ extends the 30 days after the end of CARES Act to something that takes into consideration the success of the program and the conditions of prison.  Maureen Baird, retired BOP Warden, told me in an interview, “Prisons are communal settings where contagion is always a concern.  I think the BOP has gone to great measures to try to avoid that contagion and one of the most successful measures has been CARES Act home confinement.”...

The CARES Act demonstrated that a select group of prisoners could be identified and successfully placed in community settings for an extended portion of their sentence.  There are currently prisoners on CARES Act who still have over 5 years remaining on their prison term who are under strict terms of home confinement and subject to being returned to an institution in the event of failing to live up to those terms.

Though it makes sense to wind down the pandemic-driven authority to transfer certain persons from federal prison to home confinement, Congress and the US Sentencing Commission and the Justice Department should carefully study the the apparent success of this CARES Act program and consider ways to give BOP broader authority in non-pandemic times to move low-risk prisoners into home confinement. As highlighted by some posts below about the CARES Act, it seems that great use of home confinement might help reduce recidivism, save taxpayer money, facilitate greater reentry success for offenders and advance other important goals. Of course, home confinement needs to uses efficiently and effectively, though if we can do that during a pandemic, I would hope we can also do it at other times.

Some prior related posts:

• Spotlighting effectiveness of home confinement under CARES Act and concerns about OLC memo disruption
• Another encouraging report on those released under federal CARES Act
• Celebrating "real" recidivism is essentially nil, and even technical violations stunningly low, for CARES home confinement cohort
• More notable details on the remarkable success of those released from federal prison under CARES Act  
• Spotlighting again the decarceral success of the CARES Act 

USSC publishes 2022 Annual Report and latest Sourcebook of Federal Sentencing Statistics

Via email this morning, I learned that the US Sentencing Commission published on its website today its 2022 Annual Report and latest Sourcebook of Federal Sentencing Statistics.  Both data-rich publications have lots of interesting statistics providing lots of interesting views of the realities of (fiscal year) 2022 federal sentencing.  The email I received from the USSC flagged these "FY22 Fast Facts":

The Sourcebook presents information on the 64,142 federal offenders sentenced in FY22 (October 1, 2021 through September 30, 2022) — a sentencing caseload that increased by 6,855 from the previous fiscal year.

• Drug trafficking, immigration, firearms, and fraud crimes together comprised 82% of the federal sentencing caseload in FY22.  

• Methamphetamine continued to be the most common drug type in the federal system (49% in FY22).

• The portion of drug cases involving fentanyl increased markedly over the last year, such that fentanyl cases were the third most common among all drug cases. 

• Methamphetamine trafficking continued to be the most severely punished federal drug crime (94 months, representing an increase of 4 months from the previous year).

• 65% of drug offenders were convicted of an offense carrying a mandatory minimum penalty, holding relatively steady from the previous year.

New CRS piece reviews circuit split over justifications for revoking supervised release

A helpful reader alerted me to this notable new "Legal Sidebar" from the Congressional Research Service.  As suggested by the title, "Can Retribution Justify the Revocation of Supervised Release? Courts Disagree," the piece details a jurisprudential divide among the circuits for the justification for supervised release revocation.  Here is how the five-page report begins:

What are the legitimate reasons that a government may subject an individual to criminal punishment?  Western penological theory and American legal history generally identify four principled bases for criminal punishment: retribution, deterrence, incapacitation, and rehabilitation.  The Sentencing Reform Act (SRA) requires federal courts to impose an initial sentence that reflects these purposes of punishment.

The SRA also authorizes federal courts to sentence defendants to supervised release, encompassing a set of conditions that the defendant must comply with upon release from prison for a period of time (or, for some offenses, for up to life).  A defendant’s compliance with these conditions is “supervised” or monitored by a federal probation officer.  If a defendant violates a condition, the court may revoke the supervised release and send the defendant back to prison, among other things.  The SRA lists deterrence, incapacitation, and rehabilitation among the factors that a judge must consider in making these revocation determinations.  The SRA does not, however, expressly include retribution as one such factor.

The federal appeals courts disagree as to whether, and to what extent, retribution may justify the revocation of supervised release in light of this statutory omission.  On one side of the divide, the U.S. Courts of Appeals for the First, Second, Third, Sixth, and Seventh Circuits have held that federal courts may consider retribution in making revocation decisions.  On the other side, the Fourth, Fifth, and Ninth Circuits have concluded that courts either may not consider retribution in these decisions at all or may consider it only to a limited degree.

This Sidebar summarizes the four purposes of punishment, including retribution; offers an overview of supervised release; and summarizes the aforementioned split.  The Sidebar concludes with congressional considerations.

Prison Policy Initiative releases "Mass Incarceration: The Whole Pie 2023"

Though not all pies taste the same on March 14, so-called "Pi Day," sentencing fans and criminal justice data fans should find today especially delicious because the amazing folks at the Prison Policy Initiative have now posted the latest, greatest version of PPI's amazing incarceration "pie" graphic and associated report.  The latest report "Mass Incarceration: The Whole Pie 2023" provides a spectacular accounting of the particulars of who and how people are incarcerated in the United States.  As I have said in the past, the extraordinary "pies" produced by PPI impart more information in a couple of effective image than just about any other single resource I know about (and this PPI press release has the main visual and other highlights).  Here is part of this latest pie report's introductory text and the concluding discussion:

Can it really be true that most people in jail are legally innocent? How much of mass incarceration is a result of the war on drugs, or the profit motives of private prisons? How has the COVID-19 pandemic changed decisions about how people are punished when they break the law? These essential questions are harder to answer than you might expect. The various government agencies involved in the criminal legal system collect a lot of data, but very little is designed to help policymakers or the public understand what’s going on. As public support for criminal justice reform continues to build — and as the pandemic raises the stakes higher — it’s more important than ever that we get the facts straight and understand the big picture.

Further complicating matters is the fact that the U.S. doesn’t have one “criminal justice system;” instead, we have thousands of federal, state, local, and tribal systems. Together, these systems hold almost 2 million people in 1,566 state prisons, 98 federal prisons, 3,116 local jails, 1,323 juvenile correctional facilities, 181 immigration detention facilities, and 80 Indian country jails, as well as in military prisons, civil commitment centers, state psychiatric hospitals, and prisons in the U.S. territories.

This report offers some much-needed clarity by piecing together the data about this country’s disparate systems of confinement. It provides a detailed look at where and why people are locked up in the U.S., and dispels some modern myths to focus attention on the real drivers of mass incarceration and overlooked issues that call for reform....

The United States has the dubious distinction of having the highest incarceration rate in the world.  Looking at the big picture of the 1.9 million people locked up in the United States on any given day, we can see that something needs to change.  Both policymakers and the public have the responsibility to carefully consider each individual slice of the carceral “pie” and ask whether legitimate social goals are served by putting each group behind bars, and whether any benefit really outweighs the social and fiscal costs.

Even narrow policy changes, like reforms to bail, can meaningfully reduce our society’s use of incarceration. At the same time, we should be wary of proposed reforms that seem promising but will have only minimal effect, because they simply transfer people from one slice of the correctional “pie” to another or needlessly exclude broad swaths of people. Keeping the big picture in mind is critical if we hope to develop strategies that actually shrink the “whole pie.”

Brennan Center publishes "A Proposal to Reduce Unnecessary Incarceration: Introducing the Public Safety and Prison Reduction Act"

The folks at the Brennan Center for Justice have a new report available here authored by Hernandez D. Stroud, Lauren-Brooke Eisen, and Ram Subramanian titled "A Proposal to Reduce Unnecessary Incarceration: Introducing the Public Safety and Prison Reduction Act."  Here is part of the report's introduction:

According to a 2016 Brennan Center for Justice report, nearly 40 percent of the U.S. prison population is incarcerated without any compelling public safety justification. Incarceration degrades people’s humanity, disrupts their social networks, and causes lifelong social and financial disadvantage through restricted access to education, jobs, and housing.  It also devastates families and communities, disproportionately affecting society’s most marginalized segments.

Reforms have reduced the population behind bars from its 2009 peak, yet an astonishing level of incarceration persists: today over 1.2 million people are confined to federal and state prisons, and just over 636,000 more are locked up in local jails.  Few states have achieved significant reductions in their prison populations, and in some places these populations have begun to grow again.

For a half century, the federal government has harnessed its grant-making power to spur states to incarcerate more people and to impose longer sentences, making the United States the most punitive country in the world.  It can now use that same funding power to reverse course.  The idea of using federal funding to reduce incarceration is not new, but recent programs have had mixed results.  For example, between 2010 and 2017, the U.S. Department of Justice’s Justice Reinvestment Initiative (JRI) provided state and local governments with technical assistance and direct funding to reduce their prison populations.  But this funding did not always produce the intended outcome....

Yet since assuming office in 2021, the Biden administration, while retaining JRI’s focus on recidivism reduction, now specifically allows grant money to support efforts to reduce incarceration for new crimes or technical violations of community supervision.  And more recently, in August 2022, as part of his 2023 budget proposal to Congress, President Biden unveiled a grant program called Accelerating Justice System Reform, which would dedicate $15 billion over 10 years for jurisdictions to implement crime prevention and public health approaches to public safety.

Building on this momentum, the Brennan Center for Justice calls on Congress to enact a new, $1 billion federal funding program, called the Public Safety and Prison Reduction Act, to channel money to states with the goal of reducing unnecessary incarceration while promoting humane and fair criminal-justice policies that preserve public safety.  The proposal, based on a previous Brennan Center policy solution — the Reverse Mass Incarceration Act — was crafted in consultation with a variety of stakeholders, including formerly incarcerated individuals.

Maricopa County prosecutor joins victims' group in challenging new Arizona Gov's pledge not to go forward with scheduled execution

As reported in this local article, headlined "'No law allows it': Maricopa County prosecutor challenges Gov. Hobbs' refusal to proceed with execution," notable litigation is afoot over execute powers and execution plans in the Grand Canyon State.  Here are the interesting details (with links from the originals):

Gov. Katie Hobbs faces a court fight over whether she can block a scheduled execution. 

Maricopa County Attorney Rachel Mitchell joined a crime victims' rights group Monday in asking the Arizona Supreme Court to order Hobbs to carry out the execution of convicted murderer Aaron Gunches.  "No law allows the governor to unilaterally suspend executions," Mitchell's court brief said....

The amicus brief supports the Arizona Voice for Crime Victims' petition for special action by the high court, filed on behalf of Karen Price, sister of Gunches' murder victim, Ted Price. 

Two weeks ago, Hobbs said the state wouldn't proceed with executions until her office's review of death-penalty procedures was complete.  The day before, the state Supreme Court had granted an execution warrant for Gunches with a date of April 6.

The first-term Democratic governor issued an executive order in January establishing a death penalty review commission. She cited questions about the Department of Corrections execution protocols and lack of transparency.  Democratic Attorney General Kris Mayes immediately paused executions. 

In her brief, Mitchell noted the "current execution protocol is the product of extensive litigation and multiple settlements with death row inmates."

Prior recent related posts:

• Different approaches to death penalty administration from different governors 
• New Arizona Gov pledging not to allow new scheduled execution to go forward

"Panicked Legislation"

The title of this post is the title of a new article authored by Catherine Carpenter which I missed when first posted here on SSRN, but now can be found in final form in print here at the Notre Dame Journal of Legislation.  Here is its SSRN abstract:

We are in the throes of a moral panic. It is not the first time, nor will it likely be the last, but it is among the most enduring.  Dubbed the sex panic, it has bred widespread and ever-escalating legislation, impacted the lives of more than a million people and their families, and caused public hysteria and violence.  And unlike other moral panics in our history that dissipated over time, there are no signs that the sex panic is diminishing.  Indeed, this panic grows more virulent with each passing year.

Panicked legislation is both the symbol and the result of a moral panic.  The article is uniquely situated, linking both social science and legal theories to offer a dynamic account of the world of moral panics, the mythical narratives that support them, and the inaccurate risk management assessment that plagues them.  It is ultimately a cautionary tale of hastily-crafted and fear-driven legislation that is fueled by the public’s distorted fear of a targeted group of people.

With a public unable or unwilling to hear the evidence, and political actors invested in their electorate, this article urges judicial intervention through the Irrebuttable Presumption Doctrine to challenge statutory schemes that are based on false assumptions that masquerade as universal truths.