Sentencing Law and Policy

Intriguing report on intriguing "equitable criminal sentencing technology" being formally adopted in Florida county

This local article out of Florida, headlined "Alachua County makes history with approval of equitable criminal sentencing technology," report on an interesting new development with some interesting sentencing technology. Here are the developments:

With the finalization of its budget Tuesday evening, Alachua County made the joint-effort of state attorney Brian Kramer and public defender Stacy Scott a historic reality: Florida’s Eighth Judicial Circuit will become Florida’s first judicial circuit to integrate equitable sentencing software as an official part of its case management system and plea-bargaining process. Roughly 95% of cases are settled in plea negotiations.

“We feel like this is an important step forward in trying to create more parity in our criminal justice system so that there aren’t these disparate sentences that exist today,” Scott said when she and Kramer presented the system to county commissioners Aug. 2.

Known as the Equity in Sentencing Analysis System (ESAS), this fairly new software provides legal practitioners with a searchable database of statewide sentencing data from the Florida Department of Corrections going back to 1998. It enables them to analyze past sentences that people with similar criminal backgrounds have received for similar crimes.

“That dataset is going to provide the lawyer things like the mean, the mode, the median,” Kramer told WUFT. “So that’s giving the lawyer data upon which to say, ‘OK, is this situation that I’m looking at, is it less serious than the average? Is it more serious than the average? And it gives them a starting point from which to develop a sentence that hopefully eliminates some of the inequities in the criminal justice system.”

Scott further reiterated this, adding that the sentencing data would allow for more honesty and consistency in plea negotiations, “instead of the way we’ve always done it, which is just sort of somebody’s gut feeling about what should happen.”

Its initial integration into the current system will cost Alachua County $73,000, followed by an annual subscription cost of roughly $23,000 for each office. But the software’s owner, Al Barlow, said he didn’t create it to make money. An attorney with 37 years of legal experience, Barlow was motivated by unfair sentencing he had encountered first-hand and presented the concept behind the sentencing analysis system to the Senate Judiciary Committee in 2017. He was looking to give the software to the state of Florida if the committee set him up with a programmer, but he didn’t receive the response he had hoped for. “They thought I was an alien. They kind of blew me off,” Barlow said. “I came back to Jacksonville, and I got with this programmer and another guy, and we built the software ourselves.”

And so his company, Technologies for Justice, was born along with his sentencing database. Barlow’s ensuing analysis, powered by this new software, showed him that the sentencing guideline system established by the Criminal Punishment Code in 1998 fails to ensure equitable sentencing across Florida. And he said ESAS could serve as a means to audit it....

Some attorneys, Scott and Kramer included, said ESAS is not the end-all-be-all. To them, it’s one of many factors worth considering when determining fair sentences. Still, Kramer saw something in Barlow’s software that other state attorneys haven’t acted on: the potential to combat intrinsic bias. “Does it eliminate bias? No, not at all, because you can’t eliminate bias,” Kramer said. “But what it would do is give us an unbiased starting point. And then we could work from there to try and make those adjustments upward or downward as appropriate.”

Until now, Florida prosecutors have almost entirely avoided this sentencing analysis system: Barlow said there was one other state attorney’s office that contacted him, piloted ESAS but ultimately never used it. Defense attorneys are generally the ones who use it to reduce sentences, according to a spokesperson for the Eighth Judicial Circuit.

Even among all Florida attorneys, the software isn’t well-known. Only 150 are currently registered to use it, with some others occasionally performing one-time searches, Barlow said. (Note that over 100,000 people are currently registered to practice law in Florida, according to the Florida Bar.) And he estimated two-thirds aren’t even aware of it.

Barlow also said software like ESAS doesn’t seem to exist outside of Florida. He said he receives calls from lawyers in Washington, New York, Seattle and all over the nation who are shocked to hear about such technology. “Florida is on the cusp of doing something very, very special,” Barlow said. “If it works half as good as we know it can, Gainesville will set a precedent for equitable sentences that the whole nation can follow.”

I have never previously heard of Equity in Sentencing Analysis System (ESAS) or Technologies for Justice, no doubt because it seems ESAS is a propriety technology that has not been widely used (or even widely known) in Florida. 

Recapping lots of (little?) new criminal justice reforms in California

Late last week, California Gavin Newsom had a deadline to sign or veto a bunch of criminal justice reform bills.  This AP piece, headlined "Newsom has mixed verdict on California criminal justice laws," reports on some of the bill and choices made by Gov. Newsom:

California Gov. Gavin Newsom delivered a mixed verdict on more than three dozen criminal justice laws before his bill-signing deadline Friday, approving measures to seal criminal records and free dying inmates but denying bids to restrict solitary confinement and boost inmates’ wages.

Starting in July, one new law will give California what proponents call the nation’s most sweeping law to seal criminal records, though it excludes sex offenders. It will seal conviction and arrest records for most ex-offenders who are not convicted of another felony for four years, as well as records of arrests that don’t bring convictions, while former prison inmates convicted of serious felonies will be able to ask a judge to seal their records.

Backers estimate that 70 million Americans and 8 million Californians are hindered by old criminal convictions or records. They estimated the law could give more than a million Californians better access to jobs, housing and education. Newsom also approved related measures, one allowing record sealing and expungement even if former offenders still owe restitution and other court debt, and another making it easier to apply for certificates of rehabilitation....

Newsom also relaxed standards to allow more ill and dying inmates to be released from state prisons. The new law will allow inmates to be freed if they are permanently medically incapacitated or have a serious and advanced illness “with an end-of-life trajectory,” the standard used by the federal prison system. “It reduces incarceration costs, but more importantly, ensures there is a more humane and effective relief process for all people in California’s state prisons,” said Claudia Gonzalez of Root & Rebound, one of the reform groups that sought the measure....

He also expanded a 2020 law allowing suspects to allege they were harmed by racial bias in their criminal charges, convictions or sentences. The earlier law was limited to cases after Jan. 1, 2021. But this measure extends the safeguards to prior convictions.

Newsom, a Democrat who says he supports second chances and reducing incarceration, has had a mixed record on criminal justice bills. He has backed many reform efforts but in years past also vetoed other legislation he felt went too far or duplicated existing efforts. This year, he blocked a bill that would have made California the latest state to restrict segregated confinement in prisons and jails, as well as for the first time adding immigration detention facilities....

Newsom also vetoed one bill that would have given the state prison system five years to marginally boost the wages of inmates who usually earn just dollars a day, and a second bill that would have increased the “gate money” inmates are given upon their release from the current $200 to $1,300. The bills had survived even as lawmakers this year rejected a constitutional change that might have required much more compensation for inmate workers.

From another accounting, Daniel Nichanian has this Twitter thread on thread on "13 of the biggest [bills from California] and why they matter." Among the bills highlighted in that thread: "Gavin Newsom SIGNED a bill to make phone calls free from prison" and "Newsom SIGNED a bill that will 'vacate the death sentences of people who have become permanently incompetent'" and "Newsom SIGNED a bill to decriminalize jaywalking in California." 

Though I am inclined to call the record sealing bill "big" because of the number of people and families potentially impacted, the title of this post conveys my general sense that a lot of these reforms are fairly little.  But little does not mean unimportant, and it will be interesting to see if any of these reforms end up having major crime and punishment echoes.

"Expedient Imprisonment: How Federal Supervised Release Sentences Violate the Constitution"

The title of this post is the title of this notable new article now available on SSRN and authored by Stefan Underhill and Grace Powell. (Among the reasons this article is interesting is because one of its authors is Chief Judge of the US District Court for the District of Connecticut.) Here is the article's abstract:

Supervised release sentences violate the grand jury clause and double jeopardy clause of the Fifth Amendment.  Because supervisees have a right to indictment, violation proceedings constitute prosecutions within the meaning of the Sixth Amendment.  Violation proceedings should not provide an expedient path to imprisonment but instead should afford defendants the full range of criminal constitutional rights.

A sadder Pennsylvania variation on Going in Style with elderly, ill, repeat bank robber

Hollywood has now twice made the movie Going in Style about a group of elderly gentlemen facing who decide to become bank robbers when facing hard financial times.  I recall getting a big kick out of the 1979 version of the movie as a kid, and I did not think quick as much about the 2017 version as an adult.  This movie came to my mind upon reading this local sad press piece, headlined "Pa. man says he robbed bank to stay in prison, not be an imposition to family," about a recent Pennsylvania state sentencing:

A 60-year-old man says he robbed a bank in Lycoming County so he would remain in jail and not burden the family with whom he has not had contact in 30 years with his medical bills. Robert A. Jones, after pleading guilty to a robbery charge Monday, told county Judge Ryan Tira his health is declining.

The judge expressed concern about Jones’ mental health but proceeded to sentence him to 45 to 90 months in state prison in accordance with the plea agreement. Restitution of $2,000 also was ordered.

Police recovered $3,000 of the $5,000 taken in the Sept. 6 robbery when Jones was arrested the next day at the halfway house in the Harrisburg area where he was living. When authorities confronted with a search warrant, Jones is alleged to have responded: “I have nothing to hide, this is my final chapter.” He was within two months of being released from the halfway house, it was noted in court.

“It’s an unfortunate situation,” his public defender Howard B. Gold said. “He prefers to spend the remaining years of his life in state prison.” Tira said he could not relate to Jones’ decision. Jones had been paroled on June 28, 2021, from the 15- to 30-year robbery sentence imposed in 2008 in Lackawanna County. He claimed when arrested last month he had robbed two dozen banks since the 1990s. Records confirm numerous charges in state and federal courts.

The Sept. 6 robbery was at the Jersey Shore State Bank office in Jersey Shore. The robber was wearing a surgical mask and a yellow rain jacket when he handed a note to a teller that stated, “this is a robbery” and then told her to “just remember your training.” He was handed $5,000 in $100, $50 and $20 bills and then left the bank.

Jones was observed on surveillance video running away from the bank and while cutting through a parking lot removing a yellow jacket. Shortly after he disappeared, a 1999 Toyota Camry appeared and a video showed a yellow object in the back seat. The license plate was visible so police were able to determine the car was owned by Jones....

Surveillance video showed Jones removing a black bag from the Camry in the halfway house parking lot and taking it inside. He was wearing clothing similar to that of the robber. Found inside the vehicle, police said, was a yellow rain jacket, beige colored hat, medical mask and more than $3,000 in currency.

Jones told Tiadaghton Valley Regional Police Officer Justin Segura this was the end of the road, it was a call for help and he had no intent to harm anyone in the bank, the arrest affidavit states. The state Parole Board has lodged a detainer against Jones so could face more court action.

Not much for sentencing fans as SCOTUS starts a new Term and releases first big order list

Law nerds like me always get excited for the return of the Supreme Court on the first Monday in October.  But, despite all of the drama and jurisprudential change of the last Term (OT21) and the possibility of more of the same in the Term ahead (OT22), the sentencing nerd in me cannot completely suppress a yawn on this SCOTUS opening day.  Among the OT22 cases on which cert has already been granted, there are relatively few criminal matters and many of those involve only intricate procedural issues.  (That said, for federal prisoners, Jones v. Hendrix, No. 21-857, to be argued on November 1, is a big deal.)

I was hoping there might be at least a smidge of sentencing or criminal justice excitement in today's first OT22 Order List after the so-called "long conference" last week.  The list starts with a smattering of GVRs based on last Term's later criminal cases, particularly the sentencing case Concepcion.  But then we get to the list of cert grants, and only two of the nine grants involve criminal matters  — and both the new SCOTUS cases involve matters that are a very long way from the day-to-day issues involved in the millions of criminal cases and sentencings that transpire every year in the US.

That all said, I know that there are some notable sentencing cases not yet fully briefed for cert consideration (including the McClinton acquitted conduct case for which I helped filed one of a number of amicus briefs).  So it is certainly possible that OT22 will end up having some juicy sentencing cases — and it certainly will end up having at least a few more (perhaps many more) criminal cases.  Moreover, given the current composition of the Court and its recent work in the Eighth Amendment arena, I suspect some folks  likely see a light SCOTUS sentencing docket in OT22 as a development to be celebrated.  But, perhaps biased by my own eagerness to have interesting matters to cover on this blog, while so many others are so troubled these days by what the current Court is doing, I find myself compelled to complain here about what the Court is largely failing to do.

As always, an especially on this opening day for SCOTUS "first pitch," I welcome comments of the state of the Court's sentencing and criminal docket.  Predictions about cases the Court might still take up or expected future developments or just about any concerns and complaints about its activities in this arena are welcome.  (Notably, after extraordinary SCOTUS personnel transitions over the last six years, I am inclined to predict that the current Court may not see another change in membership for the next six or longer.) 

"State Constitutionalism and the Crisis of Excessive Punishment"

The title of this post is the title of this new article available via SSRN authored by Robert J. Smith, Zoe Robinson and Emily Hughes. Here is its abstract:

The institutional site of responsibility for America’s mass incarceration crisis represents one of the most important and undertheorized barriers to reducing excessive punishment in the United States.  While mass incarceration is frequently presented as an American crisis, with more that 113 million Americans impacted by the criminal justice system, this Article argues that mass incarceration is not a national issue, but instead a local issue.  Ninety percent of the people in America’s prisons are confined under state laws, procedures, and norms created by state legislative and executive branches, and thirty-seven individual U.S. states have an incarceration rate higher than any country other than the U.S. itself.  While there exists a growing popular and scholarly movement attempting to address the political intractability of mass incarceration, this Article argues that missing from the debate is the role of state courts and state constitutions.

Drawing on two burgeoning movements — the movement to end mass incarceration and the re-emerging significance of state constitutionalism — this Article argues that state constitutionalism is critical for curbing the excessive punishment regimes that drive mass incarceration.  The Article evaluates state courts’ quiet divestment of independent state constitutional interpretation in the years following incorporation, outlining the unique issues posed by constitutional unitarism for limiting excessive punishment.  Motivated by recent developments in state courts, the Article highlights the growing support for, and potential of, independent state constitutionalism for preventing excessive punishments and addressing the mass incarceration crisis.  In doing so, the Article offers a path forward, sketching a doctrinal trajectory for state courts to use when interpreting their state constitutional provisions limiting excessive punishments that respects federal developments while also capturing the localism of criminal law and ultimately emphasizing the potential of state courts as transformative institutions in reducing mass incarceration.

Weekend round-up of stories from incarceration nation

Another busy week means another weekend effort to catch up with this round-up of links to a number of stories and commentaries concerning prison realities that caught my eye in recent days:

From the AP, "Alabama prisons reduce meals, nix visits amid inmate strike"

From Forbes, "First Appearance By Bureau Of Prisons Director Falls Shorts On Facts"

From The Guardian, "What’s Prison For? Concise diagnosis of a huge American problem"

From The Guardian, "‘Slavery by any name is wrong’: the push to end forced labor in prisons"

From the Marshall Project, "What an Alabama Prisoners’ Strike Tells Us About Prison Labor"

From NBC News, "Biden pledged to end solitary confinement. Federal prisons are increasing its use."

From the New York Times, "Justice Dept. to Seek Stiffer Sentences in Prisoner Abuse Cases"

From NPR, "What it's like serving a life sentence in prison with no chance of release"

From Scientific American, "Dementia in Prison Is Turning into an Epidemic: The U.S. Penal System Is Badly Unprepared"

From the Washington Post, "They’re in federal prison, and they’re done staying quiet"

"The Lost Right to Jury Trial in 'All' Criminal Prosecutions"

The title of this post is the title of this recent article available via SSRN authored by Andrea L. Roth. Here is its abstract:

The Sixth Amendment states that “in all criminal prosecutions, the accused shall enjoy the right to . . . trial, by an impartial jury.”  Similarly, Article III mandates that the trial of “all crimes, other than impeachment, shall be by jury.” Nonetheless, tens of thousands of federal defendants each year are denied a jury in “petty” cases with a potential sentence of six months or less.  These cases can carry significant consequences and involve not only regulatory crimes but traditional crimes like theft, assault, and sexual abuse.  This apparently blatant contradiction of the Constitution’s text is justified by the so-called “petty-offense exception,” originating in nineteenth-century Supreme Court dictum that cited to the Founding-era practice of allowing certain offenses deemed “petty” by Parliament or colonial charters to be summarily tried by a justice of the peace.

While a couple of commentators over the last century have criticized this doctrine, it has never been fully litigated. Harnessing previously unexplored historical and textual sources, this Article offers the most comprehensive argument to date that the petty offense exception’s existing rationales are untenable.  Indeed, as the sources reveal, controversial summary bench trials could just as naturally be read as inspiration for the Framers’ conspicuous decision to guarantee a jury in “all” criminal prosecutions.  Ultimately, if one looks to text and history to interpret the jury right, it must at the very least extend to defendants formally charged by the Department of Justice in federal criminal court.  The Article concludes by exploring the implications of a jury right in federal petty cases, including the importance of the right, and implications for state defendants and the Sixth Amendment right to counsel.

New US Sentencing Commission releases its first set of tentative policy priorities

As reported in this USSC press release, the "newly constituted United States Sentencing Commission today issued tentative policy priorities for the 2022-2023 amendment year — with top focus on implementation of the First Step Act of 2018."  Here is more:

The First Step Act, which authorized defendants to file motions in federal court, helped facilitate a substantial increase in compassionate release filings during the COVID-19 pandemic but the Commission recently reported wide variation in grant rates among the federal courts (more here).

The Commission also proposed a focus on implementation of the Bipartisan Safer Communities Act of 2022 relating to firearms penalties under §2K2.1, one of the most common sentencing guidelines applied annually.  The act created new penalties for straw purchasers and increased penalties for other firearms offenses.

In addition, the Commission proposed consideration of several circuit court conflicts that have emerged since the loss of a quorum.  Commissioners also identified as a priority further examination of the guidelines relating to criminal history in light of the agency’s studies on recidivism and complications in the application of the career offender provision.  

U.S. District Judge Carlton W. Reeves, Chair of the Commission remarked, “This amendment cycle is a particularly exciting and challenging one for the Commission.  It will require swift consensus-building among my colleagues and thoughtful feedback from all our stakeholders.”

The Commission’s amendment cycle typically begins in June and ends the following April (more here).  The recently confirmed Commissioners will work on an expedited timetable to finalize priorities in October and adopt amendments by May 1, 2023.

Reeves stated, “We know much is expected of this new Commission beyond these immediate priorities, and we are eager to start laying that groundwork.  We will operate in a deliberative, empirically-based, and inclusive manner — open to voices from all parts of our federal criminal justice system — judges, Congress, the Department of Justice, the Federal Public Defenders, probation officers, victims, important advocacy groups, and the public at large.”

A complete list of proposed priorities and comment submission instructions can be found here.  Public comment will be accepted through October 17, 2022.  

There are lots and lots of "hot topics" covered in the 13 items specified by the Commission in this new list of tentative priorities. Though I could get excited about just about all of them, I see particularly interesting possibility lurking in this "group of four":

(8) Consideration of possible amendments to the Guidelines Manual addressing 28 U.S.C. § 994(j).

(9) Consideration of possible amendments to the Guidelines Manual to prohibit the use of acquitted conduct in applying the guidelines.

(10) Multiyear study of the Guidelines Manual to address case law concerning the validity and enforceability of guideline commentary.

(11) Continuation of its multiyear examination of the structure of the guidelines post-Booker to simplify the guidelines while promoting the statutory purposes of sentencing.

Exciting times!!

Spotlighting again the decarceral success of the CARES Act

Because it is often so very easy to notice and spotlight government failings in the crime and punishment arena, it is nice to have opportunities to highlight government successes in this world.  So, though I have noted before the great data about the success of persons released from federal prison early under the CARES Act, I am happy to see Molly Gill talking up this data in this new Washington Post opinion piece headlined "Thousands were released from prison during covid. The results are shocking."  Here are excerpts:

We are keeping many people in prison even though they are no danger to the public, a jaw-dropping new statistic shows. That serves as proof that it’s time to rethink our incarceration policies for those with a low risk of reoffending.

To protect those most vulnerable to covid-19 during the pandemic, the Cares Act allowed the Justice Department to order the release of people in federal prisons and place them on home confinement. More than 11,000 people were eventually released. Of those, the Bureau of Prisons (BOP) reported that only 17 of them committed new crimes.

That’s not a typo. Seventeen. That’s a 0.15 percent recidivism rate in a country where it’s normal for 30 to 65 percent of people coming home from prison to reoffend within three years of release.

Of those 17 people, most new offenses were for possessing or selling drugs or other minor offenses. Of the 17 new crimes, only one was violent (an aggravated assault), and none were sex offenses.

This extremely low recidivism rate shows there are many, many people in prison we can safely release to the community. These 11,000 releases were not random. People in low- and minimum-security prisons or at high risk of complications from covid were prioritized for consideration for release....

The Cares Act policy teaches us that many of our prison sentences are unnecessarily lengthy. People who commit crimes should be held accountable, and that might include serious time in prison. Many of the people released to home confinement had years or even decades left to serve on their sentences. But they changed in prison and are no longer a danger to others, as the new data confirms.

Releases to home confinement were also focused on two groups of people who pose little to no risk to public safety: the elderly and the ill (i.e., those most likely to face serious covid complications). Study after study confirms that people become less likely to reoffend as they get older. America’s elderly prison population is growing rapidly, because of our use of lengthy prison terms.

People with serious chronic illnesses or physical disabilities are another group who can be safely released from long sentences. They are not dangerous, but their increased medical needs make them exponentially more expensive to incarcerate. Taxpayers aren’t getting much public safety bang for their buck when we incarcerate bedridden people.

The federal Cares Act home confinement program should inspire similar programs across the country. Virtually all states have programs available to release elderly or very sick people from prison, but they are hardly used and should be expanded. States should also give people serving the longest sentences a chance to go back to court after 10 or 15 years and prove that they have changed and can be safely released.

The data is in. It shows that we can thoughtfully release low-risk people from prison with supervision and not cause a new crime wave. At a time when crime is going up in so many cities and towns, we cannot afford to waste money or resources keeping those who no longer need to be in prison locked up.

Prior related posts:

• 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  

New bill, Federal Prison Oversight Act, part of continued congressional push for federal prison oversight

As detailed in this AP article, a "bipartisan group of U.S. senators introduced legislation Wednesday to overhaul oversight and bring greater transparency to the crisis-plagued federal Bureau of Prisons."  Here is more:

The bill, called the Federal Prison Oversight Act, would require the Justice Department to create a prisons ombudsman to field complaints about prison conditions, and would compel the department’s inspector general to evaluate risks and abuses at all 122 federal prison facilities.

The bill, sponsored by Sens. Jon Ossoff, D-Ga., Mike Braun, R-Ind., and Dick Durbin, D-Ill., is being introduced a day before Bureau of Prisons Director Colette Peters is scheduled to testify before the Senate Judiciary Committee, which Durbin chairs.

Ossoff, Braun and Durbin are three founding members of the Senate Bipartisan Prison Policy Working Group. The panel launched in February amid turmoil at the Bureau of Prisons, much of it uncovered by AP reporting, including rampant sexual abuse and other criminal misconduct by staff, chronic understaffing, escapes and deaths. “It’s no secret that BOP has been plagued by misconduct,” Durbin said. “One investigation after another has revealed a culture of abuse, mismanagement, corruption, torture, and death that reaches to the highest levels. And yet it still operates without any meaningful independent oversight. The result has been catastrophic for both incarcerated people and staff.”

A companion bill in the House is sponsored by Reps. Kelly Armstrong, R-N.D. and Reps. Lucy McBath, D-Ga. Under the Federal Prison Oversight Act, the Justice Department’s inspector general would be required to conduct risk-based inspections of all federal prison facilities, provide recommendations to address deficiencies and assign each facility a risk score. Higher-risk facilities would then receive more frequent inspections.

The inspector general would also be required to report findings and recommendations to Congress and the public, and the Bureau of Prisons would then need to respond with a corrective action plan within 60 days. A prison ombudsman would be established to take complaints — via a secure hotline and online form — and investigate and report to the attorney general and Congress dangerous conditions affecting the health, safety, welfare and rights of inmates and staff....

The reforms have the backing of a wide array of groups involved in the federal prison system and across the political spectrum, including the correctional officers’ union, the inmate advocacy group Families Against Mandatory Minimums, the American Conservative Union and the Koch brothers-backed Americans for Prosperity....  Shane Fausey, the president of the Council of Prison Locals union, is also scheduled to testify Thursday, along with the former head of Pennsylvania’s state prison system, John Wetzel, and Cecilia Cardenas, a former federal inmate.

The folks at FAMM have this detailed summary of The Federal Prison Oversight Act of 2022.  Today's Senate Judiciary Committee hearing, "Oversight of the Federal Bureau of Prisons," can be followed at this link.  And Shanna Rifkin is live-tweeting the hearing starting with this tweet.

Spotlighting one Governor's notable clemency track record

The Guardian has this notable lengthy new piece, fully headlined "The story of one US governor’s historic use of clemency: ‘We are a nation of second chances’; Kate Brown has granted more commutations or pardons than all of Oregon’s governor from the last 50 years combined."  I recommend the full piece, and here is how it starts:

Last October, Kate Brown, the governor of Oregon, signed an executive order granting clemency to 73 people who had committed crimes as juveniles, clearing a path for them to apply for parole.

The move marked the high point in a remarkable arc: as Brown approaches the end of her second term in January, she has granted commutations or pardons to 1,147 people – more than all of Oregon’s governors from the last 50 years combined.

The story of clemency in Oregon is one of major societal developments colliding: the pressure the Covid-19 pandemic put on the prison system and growing momentum for criminal justice reform.

It’s also a story of a governor’s personal convictions and how she came to embrace clemency as a tool for criminal justice reform and as an act of grace, exercising the belief that compassionate mercy and ensuring public safety are not mutually exclusive.

“If you are confident that you can keep people safe, you’ve given victims the opportunity to have their voices heard and made sure their concerns are addressed, and individuals have gone through an extensive amount of rehabilitation and shown accountability, what is the point of continuing to incarcerate someone, other than retribution?” Brown said in a June interview.

"Voices from Within the Federal Bureau of Prisons: A System Designed to Silence and Dehumanize"

The title of this post is the title of this notable recent report from the nonprofits More Than Our Crimes and The Washington Lawyers Committee for Civil Rights and Urban Affairs. Here is part of the report's executive summary:

Prison walls are erected not only to keep people in, but to prevent the world from seeing the abuses of our carceral system.  The inhumanity of what happens behind bars, as is demonstrated by the accounts of incarcerated persons in this report, is deliberately hidden from view in faraway prisons surrounded by high walls and double fences of razor wire.  Few people other than those who are confined or work in prisons have a full view of how they operate.  Glimpses provided by litigation or a scandal are rare and transitory; sustained transparency is nonexistent. This opacity allows dehumanizing conditions to be sustained and grow worse.

The Federal Bureau of Prisons (FBOP) is comprised of 122 institutions, incarcerating more than 157,000 people, that are among the least transparent and accountable in the nation.  The violent, dehumanizing and dangerous conditions in FBOP prisons harm families and communities in every state; impacting the mothers, fathers, children and siblings who lose loved ones to this sprawling network....

Yet, despite this extremely problematic history, the FBOP operates with no real accountability. The Department of Justice (DOJ) Inspector General routinely lists “maintaining a safe, secure and humane prison system” as one of its top management challenges.  FBOP and prison leadership seem to be either unwilling or incapable of ensuring that even minimum standards are met.  As Sen. Dick Durban, chair of the Senate Judiciary Committee, noted, FBOP Director Michael Carvajal (since resigned) has “overseen a series of mounting crises, including failing to protect BOP staff and inmates from the COVID-19 pandemic, failing to address chronic understaffing, failing to implement the landmark First Step Act, and more.”

However, the overarching conclusion of this report is that reform cannot be achieved solely by replacing Director Carvajal with new blood.  The problems with the FBOP are cultural, entrenched and systemic, and independently enforced accountability must be the cornerstone of any serious attempt to change.  That cannot be achieved without replacing the current grievance procedure that incarcerated individuals must follow — which too often triggers retaliation as severe as physical abuse — with a process that is safe, reliable and fair.

Extended discussion of the messy uncertainty of Excessive Fines jurisprudence from Ohio Supreme Court

Earlier this month, as well detailed in this lengthy courthouse news piece headlined "Court-Ordered Truck Forfeiture for Third Drunk-Driving Offense Found Constitutional," a split Ohio Supreme Court upheld the forfeiture of a 2014 Chevrolet Silverado for a repeat OVI offense. Here is how the ruling in State v. O'Malley, No. 2022-Ohio-3207 (Ohio Sept 25, 2022) (available here) gets started:

In this case, we are asked two separate questions about R.C. 4511.19(G)(1)(c)(v) and Ohio’s criminal-forfeiture scheme for vehicles owned and used by repeat drunk drivers.  First, we are asked whether that scheme violates the Equal Protection Clauses in the state and federal Constitutions by treating owners and nonowners differently.  Next, we are asked, more specifically, whether the forfeiture of appellant James O’Malley’s 2014 Chevrolet Silverado constituted an excessive fine in violation of the Eighth Amendment to the United States Constitution. We find that there was no equal-protection violation and that, as applied to O’Malley, the vehicle forfeiture mandated by R.C. 4511.19(G)(1)(c)(v) did not violate the Excessive Fines Clause of the Eighth Amendment because it was not grossly disproportional to the gravity of his offense.  Accordingly, we affirm the judgment of the Ninth District Court of Appeals affirming the trial court’s forfeiture order.

The equal protection discussion in O'Malley is relatively brief, but the Eighth Amendment analysis is extended and should be of interest to those still trying to figure out how excessive punishment are to be constitutionally assessed. There are many passages from the majority opinion that are notable, but this one particularly struck me as jurisprudentially interesting:

The application of these multifactor proportionality tests generally varies depending on whether the forfeiture is in personam or in rem and depending on whether the property to be forfeited is real property, personal property, or something else. The problem is that there does not appear to be any consensus.  Nevertheless, O’Malley and his amicus curiae ask us to do what other federal and state courts have done: set forth a multifactor test that would include in the proportionality analysis considerations of the defendant’s financial ability to pay and the extent to which the forfeiture would harm the defendant’s livelihood.  While we appreciate the allure of a seemingly airtight checklist that ideally would — but in practice may not — address all future contingencies, we do not believe — for both practical and principled reasons — that it is necessary or appropriate for us to establish the multifactor test sought in this case.  Instead, we rely on our decision in Hill and the United States Supreme Court’s decision in Bajakajian to evaluate the forfeiture imposed in this case.

The dissenting opinion criticizes this approach by claiming that we provide no additional guidance and merely engage in error correction.  The dissent is mistaken.  Rather, in this case, we have revisited an issue that is of great public interest, reviewed how the issue has developed over the past 30 years since we decided Hill, and have simply come to the same conclusion that we reached in Hill — a bright-line test analyzing an Eighth Amendment excessiveness challenge is not appropriate.  We must allow trial courts flexibility so that they may consider the situation before them and make a fully informed and reasoned decision about whether a forfeiture is unconstitutionally excessive.  We need not bind trial courts’ hands in these already difficult forfeiture cases.

Noticing how crime has become a leading issue in 2022 campaign

Way back in 2008, I remember complaining on this blog about the fact that crime and mass incarceration (which was peaking around that time) was getting very attention in the 2008 campaign (see, e.g., posts here and here and here).  But, as highlighted by these recent major press pieces, the 2022 campaign is already seeing plenty of crime talk:

From Fox News, "GOP hopes tough-on-crime message defuses abortion backlash with suburban women"

From the New York Times, "G.O.P. Redoubles Efforts to Tie Democrats to High Crime Rates"

From the New York Times, "Fetterman’s Push for Clemency Becomes an Attack Line for Oz"

From the News Nation, "Republicans bet crime will be winning issue in midterms"

From Roll Call, "At the Races: Cop votes and crime ads"

From the Washington Post, "GOP strategy elevates clashes over crime, race in midterm battlegrounds"

"Race and Wrongful Convictions in the United States 2022"

The title of this post is the title of this lengthy new report from the National Registry of Exonerations.  Here is the start of its executive summary:

Black people are 13.6% of the American population but 53% of the 3,200 exonerations listed in the National Registry of Exonerations.  Judging from exonerations, innocent Black Americans are seven times more likely than white Americans to be falsely convicted of serious crimes.

We see this racial disparity, in varying degrees, for all major crime categories except white collar crime.  This report examines racial disparities in the three types of crime that produce the largest numbers of exonerations: murder, sexual assault, and drug crimes.

For both murder and sexual assault, there are preliminary investigative issues that increase the number of innocent Black suspects: for murder, the high homicide rate in the Black community; for rape, the difficulty of cross-racial eyewitness identification.  For both crimes, misconduct, discrimination and racism amplify these initial racial discrepancies.

For drug crimes, the preliminary sorting that increases the number of convictions of innocent Black suspects is racial profiling.  In addition, the Registry lists 17 “Group Exonerations” including 2,975 additional wrongfully convicted defendants, many of whom were deliberately framed and convicted of fabricated drug crimes in large-scale police scandals. The overwhelming majority are Black.

Taking account of extreme sentences under "habitual offender" laws in Mississippi and Louisiana

Tana Ganeva has this lengthy new piece at The Appeal which details the impact and import of repeat offender laws in two southern states. The full title of this piece previews in coverage: "'Habitual Offender' Laws Imprison Thousands for Small Crimes — Sometimes for Life: Data obtained by The Appeal show nearly 2,000 people in Mississippi and Louisiana are serving long — and sometimes life — sentences after they were labeled “habitual offenders." But most are behind bars for small crimes like drug possession." I recommend the full piece and here are some excerpts:

The Appeal took a deeper look at Louisiana and Mississippi, states that changed their laws in 1994 or 1995 and now have some of the highest rates of incarcerated people in the country.  The Appeal sent freedom of information requests to both the Mississippi Department of Corrections and Louisiana Department of Public Safety and Corrections for data on people serving 20-year-plus sentences and, where possible, information regarding whether their sentences had been enhanced by a habitual offender statute.  We broke the data down by race, crime, time served, and sentence. In total, datasets suggest there are close to 2,000 people currently serving long sentences enhanced by habitual offender statutes in these two states.

A small number of these people in these two states committed serious crimes.  But most are serving 20-plus years primarily because of habitual offender status, where the triggering offense was drug possession, drug sale, illegal gun possession, or another crime besides murder or rape.  Scores of people are serving virtual or literal life sentences for nonviolent drug possession....

In the mid-1990s, Mississippi instituted some of the most restrictive habitual offender laws in the country and virtually did away with parole for repeat offenders....  According to data analyzed by The Appeal, as of August 4, 2021, there were nearly 600 people in Mississippi who were serving 20 years or more with no parole date and were considered habitual offenders....  In Mississippi, 75 percent of “habitual offenders” are Black, while 25 percent are white. (Other racial groups make up a negligible number.) ...

The majority of habitual offender convictions analyzed by The Appeal are linked to possession of drugs, possession of firearms, or contraband in prison. In the most extreme cases, multiple people convicted of drug crimes were given virtual life sentences because of their habitual offender status.  Perry Armstead is serving 63 years for five charges of cocaine possession and sales. Keith Baskin is serving 60 years for possession of cannabis with intent to distribute. Timothy Bell is serving 80 years after being convicted of possessing a firearm as a felon and selling meth twice. Malcolm Crump is serving 56 years for selling meth on three occasions. Paul Houser got 60 years for meth. Anthony Jefferson got 60 years for possession of cannabis with intent to distribute....

There are nearly 900 people serving sentences longer than 20 years in Louisiana because of habitual offender statutes who aren’t eligible for parole. (Overall, there are more than four thousand people serving life without parole in the state.)

According to data acquired through a freedom of information request, the most serious crimes are in the minority. Less than 3 percent of those imprisoned due to habitual offender status were convicted of first-degree murder.  Slightly less than 5 percent are serving time for second-degree murder. Almost 6 percent are serving time for rape. Meanwhile, 12.6 percent are serving 20-plus years because of habitual offender statutes triggered by a drug crime.  Of those serving decades for drug crimes, 49 people were convicted for possession, 34 for possession with intent to distribute, and 31 for distribution.

Kentucky parole board orders school shooter to serve out the remainder of his life sentence

In this post last month, titled "Grappling with parole possibilities a quarter-century after horrific school shooting by young teen," I flagged an article discussing the first modern teen school shooter who was due to receive parole consideration 25 years after his crime.  This new lengthy CNN piece reports on the results of the process, and here are excerpts:

The Kentucky Parole Board on Monday denied parole to Michael Carneal, a man serving a life sentence for killing three students in a school shooting in 1997 when he was 14 years old. The ruling by the full parole board to have Carneal serve out his sentence comes after a two-person panel failed to reach a unanimous decision about Carneal’s release last week.

“Due to the seriousness of your crime — your crime involved a weapon, you had lives taken, and the seriousness, again — it is the decision of the parole board today to allow you to serve out the remainder of your sentence,” Parole Board Chairperson Ladeidra Jones said Monday. Carneal, who attended the hearing via video conference, responded, “Yes ma’am,” and stepped out of frame.

Carneal has served nearly 25 years in prison for opening fire at Heath High School in Paducah on December 1, 1997, killing the three students and wounding five others just after the students’ prayer circle in the lobby said “Amen.” Carneal pleaded guilty to three counts of murder, five counts of attempted murder, and a count of first-degree burglary. While he was sentenced to life in prison, Kentucky law requires that minors be considered for parole after 25 years.

Many survivors and families of the victims were opposed to Carneal’s requested release.  But now 39, Carneal pleaded his case to members of the parole board in a hearing last week, saying that if he were released, he planned to live with his parents, continue undergoing mental health treatment and eventually get a job.

Carneal’s public defender, Alana Meyer, asked the board to remember Carneal was a teenager when he opened fire, was suffering from undiagnosed paranoid schizophrenia and was struggling with bullying and the transition from middle to high school. In the quarter century since, Carneal “has committed himself to his mental health treatment, to participating in available educational and vocational programs, and to being a helpful and positive person within the prison,” Meyer wrote....

Carneal told the panel he has received multiple mental health diagnoses and has long heard voices in his head – including on the day of the shooting.  He said that before opening fire he heard a voice telling him to “pick up the gun out of the backpack and hold it in front of me and shoot.”

“There’s no justification or excuse for what I did,” Carneal said. “I’m offering an explanation. I realize there’s no excuse for what I did.”  Carneal said he still hears voices in his head, but now knows when to ignore them.

A colleague has informed me that there is litigation in lower courts contesting the legality of the Kentucky parole board converting a life with parole sentence into a life without parole sentence via this kind of "serve out" order.  

Another look at Oregon's drug decriminalization efforts now a few years in

A have done periodic posts (some linked below) over the last couple of years based on press accounts of Oregon's drug decriminalization efforts after state residents in Fall 2020 passed Measure 110 to makes possession of small amounts of various illicit drugs punishable by only a civil citation.  This new AP article, headlined "After rocky start, hopes up in Oregon drug decriminalization," provides the latest "updates from the front."  Here are excerpts:

Two years after Oregon residents voted to decriminalize hard drugs and dedicate hundreds of millions of dollars to treatment, few people have requested the services and the state has been slow to channel the funds.

When voters passed the state’s pioneering Drug Addiction Treatment and Recovery Act in 2020, the emphasis was on treatment as much as on decriminalizing possession of personal-use amounts of heroin, cocaine, methamphetamine and other drugs.

But Oregon still has among the highest addiction rates in the country. Fatal overdoses have increased almost 20% over the previous year, with over a thousand dead. Over half of addiction treatment programs in the state lack capacity to meet demand because they don’t have enough staffing and funding, according to testimony before lawmakers.

Supporters want more states to follow Oregon’s lead, saying decriminalization reduces the stigma of addiction and keeps people who use drugs from going to jail and being saddled with criminal records. How Oregon is faring will almost certainly be taken into account if another state considers decriminalizing.

Steve Allen, behavioral health director of the Oregon Health Authority, acknowledged the rocky start, even as he announced a “true milestone” has been reached, with more than $302 million being sent to facilities to help people get off drugs, or at least use them more safely. “The road to get here has not been easy. Oregon is the first state to try such a bold and transformative approach,” Allen told a state Senate committee Wednesday.

One expert, though, told the lawmakers the effort is doomed unless people with addictions are nudged into treatment. “If there is no formal or informal pressure on addicted people to seek treatment and recovery and thereby stop using drugs, we should expect continuing high rates of drug use, addiction and attendant harm,” said Keith Humphreys, an addiction researcher and professor at Stanford University and former senior adviser in the White House Office of National Drug Control Policy.

Of 16,000 people who accessed services in the first year of decriminalization, only 0.85% entered treatment, the health authority said. A total of 60% received “harm reduction” like syringe exchanges and overdose medications. An additional 15% got help with housing needs, and 12% obtained peer support....

Under the law, people receive a citation, with the maximum $100 fine waived if they call a hotline for a health assessment.  But most of the more than 3,100 tickets issued so far have been ignored, Oregon Public Broadcasting reported. Few people have dialed the hotline.

Tera Hurst, executive director of Oregon Health Justice Recovery Alliance, which is focused on implementing Measure 110, said coerced treatment is ineffective. Hurst said it’s important to focus on “just building a system of care to make sure that people who need access can get access.”  Allen called the outlay of million of dollars — which come from taxes on Oregon’s legal marijuana industry — a “pivotal moment.”...

Centro Latino Americano, a nonprofit serving Latino immigrant families, plans to use its $4.5 million share to move treatment services to a bigger space and hire more staff, said manager Basilio Sandoval.  “Measure 110 makes it possible for us to provide this service free of charge,” Sandoval said. “This allows us to reach people we could not serve previously because of a lack of insurance.”

Scott Winkels, lobbyist for the League of Oregon Cities, said residents are running out of patience.  “People are going to need to see progress,” Winkels said.  “If you’re living in a community where you’re finding needles, how many times do you need to see a needle in a park before you lose your cool?”

Some prior related posts:

• Spotlighting many challenges "winning the peace" after drug decriminalization reform in Oregon 
• Checking in with Oregon's drug decriminalization effort one year in
• Different perspectives one year after Measure 110 took effect decriminalizing low-level drug possession in Oregon

Spotlighting the ugly problems with incarceration deaths (and with data collection by the Justice Department)

Last week brought this notable bipartisan Senate report with a title that largely highlights its main points: "Uncounted Deaths in America’s Prisons & Jails: How the Department Of Justice Failed to Implement the Death In Custody Reporting Act."  Here is the report's "Executive Summary":

Approximately 1.5 million people are incarcerated in state and local correctional facilities throughout the United States.  Thousands die every year.  The Death in Custody Reporting Act of 2013 (“DCRA 2013” or “the reauthorization”) — reauthorizing a law that first passed in 2000 — requires states that accept certain federal funding to report to the Department of Justice (“DOJ” or “the Department”) about who is dying in prisons and jails.

Over the course of a ten-month bipartisan investigation into DOJ’s implementation of the law, the Permanent Subcommittee on Investigations (“PSI” or “the Subcommittee”) found that DOJ is failing to effectively implement DCRA 2013.  DOJ’s failed implementation of DCRA 2013 undermined the effective, comprehensive, and accurate collection of custodial death data.

This failure in turn undermined transparency and Congressional oversight of deaths in custody.  The Subcommittee has found that DOJ will be at least eight years past-due in providing Congress with the DCRA 2013-required 2016 report on how custodial deaths can be reduced.  The Subcommittee also highlights the following key facts: in Fiscal Year (“FY”) 2021 alone, DOJ failed to identify at least 990 prison and arrest related deaths; and 70% of the data DOJ collected was incomplete.  DOJ failed to implement effective data collection methodology, despite internal warnings from the DOJ Office of the Inspector General (“OIG”) and the Bureau of Justice Statistics (BJS).  DOJ’s failures were preventable.

Here was just some of the media coverage from the release of this report and the associated hearing:

From The Marshall Project, "‘A Moral Disgrace’: How The U.S. Stopped Counting Deaths Behind Bars; The Department of Justice is failing miserably at collecting data on deaths. Experts say that makes it hard to identify the worst prisons and jails."

From NBC News, "Hundreds of prison and jail deaths go uncounted by the federal government, report finds; A Senate subcommittee hearing is focusing on how lawmakers say the Justice Department has "failed to implement" the Death in Custody Reporting Act.

From The Washington Post, "DOJ slammed by senators over poor reporting on deaths in custody"