Sentencing Law and Policy

Some notable sentencing issues on SCOTUSblog's "Petitions to Watch" from long conference

Yesterday, the US Supreme Court had its "long conference" to consider the thousands of cert petitions that were fully briefed over the summer recess. SCOTUSblog has a long list of "Petitions We’re Watching" at this link, and here are just some of the sentencing-related ones that caught my eye:

Louisiana v. Hill, No.20-1587

(1) Whether a state may require convicted sex offenders to obtain and carry a state identification bearing the words “sex offender” without facially violating the First Amendment’s prohibition on compelled speech; and (2) whether a convicted sex offender has a First Amendment right not to be prosecuted for fraudulently altering a state identification card after scratching off a statutorily required sex offender designation.

Houston v. U.S., No. 20-1479

Whether a sentencing court must consider applicable sentencing factors codified in 18 U.S.C. § 3553(a) when deciding whether to impose a reduced sentence under Section 404(b) of the First Step Act.

Jackson v. Hudson, No. 21-347

Whether a federal prisoner is entitled to bring a habeas claim under the saving clause of 28 U.S.C. § 2255(e) to challenge the unlawful application of a mandatory minimum sentence, and imposition of a sentence that exceeded the proper statutory maximum, when his challenge was previously precluded by binding circuit precedent that has since been overruled by the circuit sitting en banc on the basis of an intervening decision of the Supreme Court.

Janis v. U.S., No. 21-68

(1) Whether Standard Condition 12 of the U.S. Sentencing Guidelines, codified in U.S.S.G. § 5D1.3(c)(12), unconstitutionally delegates authority to the probation officer; and (2) whether Standard Condition 12 is unconstitutionally vague.

Bryant v. U.S., No. 20-1732

Whether Section 1B1.13 of the United States Sentencing Guidelines is an “applicable” policy statement that binds a district court in considering a defendant-filed motion for compassionate release under 18 U.S.C. 3582(c)(1)(A), as amended by the First Step Act of 2018.

Leontaritis v. U.S., No. 20-1614

(1) Whether, if a jury is instructed to “determine” a fact by indicating a “unanimous finding beyond a reasonable doubt” and does so, the resulting verdict indicates a finding beyond a reasonable doubt, as opposed to a mere failure to find; and (2) whether, if a jury verdict finds a fact beyond a reasonable doubt, a district court’s sentencing decision must accept the jury’s determination or instead may base the sentence on its own independent finding that contradicts the jury’s.

"Managing the Pardon Power: Should the Justice Department Remain the Gatekeeper?"

The title of this post is the title of this online panel scheduled for tomorrow and the third and final one in the terrific series of online panels that have been exploring in depth federal clemency powers and practices.  As I detailed in this prior post, this series is jointly organized by the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law, the Collateral Consequences Resource Center, the Federal Sentencing Reporter, and the David F. and Constance B. Girard-diCarlo Center for Ethics, Integrity and Compliance at Villanova University Charles Widger School of Law. 

A whole lot of folks are doing great work putting this series together, and Margaret Love merits extra praise for her efforts and for helping to assemble writings on these timely topics in Volume 33, Issue 5 of the Federal Sentencing Reporter (which largely provides the foundation for these panels).  Here are more details about this final panel:

Managing the Pardon Power: Should the Justice Department Remain the Gatekeeper?

Tuesday, September 28, 2021 | 12:30 – 2:00 p.m. EDT | Zoom (register here)

This panel rounds out the theme of the series, by considering whether Donald Trump’s departure from past pardoning practices has paved the way for much-needed reforms in the process by which the president gets advice in pardon matters.  Jeffrey Crouch, author of the most comprehensive recent history of the pardon power, will offer an historical perspective on the pardon process, asking whether it has failed in recent years to serve its original purpose of promoting the rule of law and shielding the president from scandal. Rachel Barkow and Paul Larkin have both proposed moving the pardon process out of the Department of Justice to avoid the stranglehold of federal prosecutors, though each has proposed quite different advisory mechanisms with likely differing outcomes: Barkow would create an independent board of officials to receive applications, apply objective standards, and make recommendations to the president, while Larkin believes pardoning is best managed from inside the White House.  Margaret Love, who served as pardon attorney under Presidents George H.W. Bush and Bill Clinton, has argued that the process by which the president gets advice in pardon matters should stay in Justice but with significant structural changes.  These proposals are a hopeful sign that the future of the pardon power is brighter than its recent past.

Panelists:

Rachel Barkow, vice dean and Charles Seligson Professor of Law, New York University School of Law
Jeff Crouch, assistant professor of American politics, School of Public Affairs, American University
Paul J. Larkin Jr., Rumpel Senior Legal Research Fellow, The Heritage Foundation 
Margaret Love, executive director, Collateral Consequences Resource Center and former U.S. Pardon Attorney

Moderator:

Douglas Berman, executive director, Drug Enforcement and Policy Center

R. Kelly now likely facing a long sentence after convictions on all federal sex trafficking charges

I have not been following the federal prosecution of R. Kelly closely, but a whole bunch of news alerts today let me know he is now entering the sentencing stage.  This CNN piece sets out the specifics of the guilty verdict: "Kelly was found guilty of nine counts -- one count of racketeering and eight counts of violating the Mann Act.  Of the 14 underlying acts for the racketeering count, he needed to be found guilty of at least two to be convicted of that count.  Jurors found prosecutors had proven all but two of the 14 underlying racketeering acts."  And, based in part on this NBC News account and other discussions of his wrongdoing, federal sentencing is likely to be grim for Mr. Kelly:

R. Kelly, the R&B superstar who has long been trailed by accusations of sexual misconduct and abuse, was found guilty Monday on all counts in a high-profile sex-trafficking case, capping a trial that featured hours of graphic testimony from the singer’s accusers.

Kelly, who has been in custody for much of the time since he was formally charged in 2019, was convicted on one count of racketeering and eight counts of violating the Mann Act, a law that bars the transport of people across state lines “for any immoral purpose.”

Kelly, best known for the 1996 hit “I Believe I Can Fly,” pleaded not guilty to all charges in the case. The singer, whose real name is Robert Sylvester Kelly, did not take the stand in his own defense.

The prosecutors in the trial, which centered around the allegations of six people, alleged that the singer was a serial sexual predator who abused young women as well as underage girls and boys for more than two decades. Prosecutors further alleged that the singer and his entourage led a criminal enterprise that recruited and groomed victims for sex, arranging for them to travel to concerts and other events across the U.S.

In a closing argument that lasted two days, Assistant U.S. Attorney Elizabeth Geddes accused Kelly and his entourage of using tactics from “the predator playbook” to control his victims. Kelly’s alleged tactics included confining victims in hotel rooms or his recording studio, managing when they could eat and use the bathroom, and forcing them to follow various “rules,” including demanding they call him “Daddy.”

“It is now time to hold the defendant responsible for the pain he inflicted on each of his victims,” Geddes said Thursday in federal court in Brooklyn.  “It is now time for the defendant, Robert Kelly, to pay for his crimes. Convict him.”...

​​The singer’s lawyers attempted to portray his accusers as “groupies” who sought to exploit his fame and take advantage of the #MeToo movement.  Deveraux Cannick, one of Kelly’s defense lawyers, argued that testimony from several of his client’s accusers was false, saying in his closing argument: “Where is the fairness to Robert? Where’s the integrity of the system?”...

“Surviving R. Kelly,” a Lifetime documentary series released in 2019 that featured testimony from several accusers, intensified calls for the singer to face legal consequences for his alleged pattern of abuse.  Kelly was previously acquitted on child pornography charges in 2008.

Though I doubt anyone will make a follow-up documentary titled "“Sentencing R. Kelly,” I will certainly plan to keep an eye on this case in the months to come because I suspect the feds will be seeking a pretty steep sentencing term (based on what should be severe guideline calculations) while the defense will surely seek a way below-guideline sentence.  The sentencing is apparently not scheduled until May 2022, so we will all have plenty of time to make predictions.

FBI releases 2020 crime statistics showing increase in violent crime and decrease in property crime

As set out in this press release, headlined simply "FBI Releases 2020 Crime Statistics," we now have the FBI's accounting of US crime dynamics in the crazy year of 2020.  The basic 2020 story of violent crime up and property crime down has been widely discussed, but these "official" particulars still matter.  Here are highlights from the FBI press release:

For the first time in four years, the estimated number of violent crimes in the nation increased when compared with the previous year’s statistics, according to FBI figures released today.  In 2020, violent crime was up 5.6 percent from the 2019 number. Property crimes dropped 7.8 percent, marking the 18th consecutive year the collective estimates for these offenses declined.

The 2020 statistics show the estimated rate of violent crime was 387.8 offenses per 100,000 inhabitants, and the estimated rate of property crime was 1,958.2 offenses per 100,000 inhabitants.  The violent crime rate rose 5.2 percent when compared with the 2019 rate; the property crime rate declined 8.1 percent.

These and additional data are presented in the 2020 edition of the FBI’s annual report Crime in the United States.  This report is available as downloadable spreadsheets and topic pages about offenses, arrests, and police employee data reported by law enforcement agencies voluntarily participating in the FBI’s Uniform Crime Reporting (UCR) Program.

The UCR Program collects information on crimes reported by law enforcement agencies regarding the violent crimes of murder and nonnegligent manslaughter, rape, robbery, and aggravated assault, as well as the property crimes of burglary, larceny-theft, motor vehicle theft, and arson.  (The FBI classifies arson as a property crime but does not estimate arson data because of variations in the level of participation by the reporting agencies.  Consequently, arson data is not included in the property crime estimate.)  The program also collects arrest data for the offenses listed above and 20 offenses that include all other crimes except traffic violations.

Of the 18,619 federal, state, county, city, university and college, and tribal agencies eligible to participate in the UCR Program, 15,897 agencies submitted data in 2020. A high-level summary of the statistics submitted, as well as estimates for those agencies that did not report, follows:

• In 2020, there were an estimated 1,277,696 violent crimes. When compared with the estimates from 2019, the estimated number of robbery offenses fell 9.3 percent and the estimated volume of rape (revised definition) offenses decreased 12.0 percent.  The estimated number of aggravated assault offenses rose 12.1 percent, and the volume of murder and nonnegligent manslaughter offenses increased 29.4 percent.

• Nationwide, there were an estimated 6,452,038 property crimes. The estimated numbers for two of the three property crimes showed declines when compared with the previous year’s estimates. Burglaries dropped 7.4 percent, larceny-thefts decreased 10.6 percent, while motor vehicle thefts rose 11.8 percent.

• Collectively, victims of property crimes (excluding arson) suffered losses estimated at $17.5 billion in 2020.

• The FBI estimated law enforcement agencies nationwide made 7.6 million arrests, (excluding those for traffic violations) in 2020.

• The arrest rate for violent crime was 147.9 per 100,000 inhabitants, and the arrest rate for property crime was 267.3 per 100,000 inhabitants.

• By violent crime offense, the arrest rate for murder and nonnegligent manslaughter was 3.8 per 100,000 inhabitants; rape (aggregate total using the revised and legacy definition), 6.3; robbery, 21.0; and aggravated assault, 116.8 per 100,000 inhabitants.

• Of the property crime offenses, the arrest rate for burglary was 45.7 per 100,000 inhabitants; larceny-theft, 193.1; and motor vehicle theft, 25.5. The arrest rate for arson was 3.0 per 100,000 inhabitants.

• In 2020, 13,377 law enforcement agencies reported their staffing levels to the FBI. These agencies reported that, as of October 31, 2020, they collectively employed 696,644 sworn officers and 309,135 civilians—a rate of 3.4 employees per 1,000 inhabitants.

"Custodial Sanctions and Reoffending: A Meta-Analytic Review"

The title of this post is the title of this forthcoming publication in Crime & Justice authored by Damon Petrich, Travis Pratt, Cheryl Lero Jonson, and Francis Cullen. Here is its abstract:

Beginning in the 1970s, the United States began an experiment in mass imprisonment.  Supporters argued that harsh punishments such as imprisonment reduce crime by deterring inmates from reoffending.  Skeptics argued that imprisonment may have a criminogenic effect.  The skeptics were right.  Previous narrative reviews and meta-analyses concluded that the overall effect of imprisonment is null.  Based on a much larger meta-analysis of 116 studies, the current analysis shows that custodial sanctions have no effect on reoffending or slightly increase it when compared with the effects of noncustodial sanctions such as probation.  This finding is robust regardless of variations in methodological rigor, types of sanctions examined, and sociodemographic characteristics of samples.  All sophisticated assessments of the research have independently reached the same conclusion.  The null effect of custodial compared with noncustodial sanctions is considered a “criminological fact.”  Incarceration cannot be justified on the grounds it affords public safety by decreasing recidivism.  Prisons are unlikely to reduce reoffending unless they can be transformed into people-changing institutions on the basis of available evidence on what works organizationally to reform offenders.

Washington Supreme Court rules 46-year minimum term for juve murderer "unconstitutional de facto life sentence"

The Supreme Court of the State of Washington issued an interesting opinion regarding juvenile sentencing rules late last week in State v. Haag, No. 97766-6 (Wash. Sept. 23, 2021) (available here). Here is how the majority opinion in Haag gets started:

It is well established that “children are different from adults” for sentencing purposes.  State v. Houston-Sconiers, 188 Wn.2d 1, 18, 391 P.3d 409 (2017).  When a child commits the crime of aggravated first degree murder, the federal and state constitutions, the enactments of our legislature, and our case law demand that such a child be treated differently from an adult.  Here, this body of law demands another resentencing hearing for Timothy Haag.

In 1995, Haag was sentenced to mandatory life without parole for a crime he committed at the age of 17.  In 2018, at a Miller-fix resentencing conducted pursuant to RCW 10.95.030, the resentencing court expressly found that “Haag is not irretrievably depraved nor irreparably corrupt.” 1 Verbatim Report of Proceedings (Jan. 19, 2018) at 25.  Yet the court resentenced Haag to a term of 46 years to life; the earliest that he could be released is at the age of 63.  Id. at 27.  Haag sought review in this court, arguing that the trial court erroneously emphasized retribution over mitigation and that his sentence amounts to an unconstitutional de facto life sentence.  We agree.

We hold that the resentencing court erred because it gave undue emphasis to retributive factors over mitigating factors. We also hold that Haag’s 46-year minimum term amounts to an unconstitutional de facto life sentence.  We reverse and remand for resentencing in accordance with this opinion.

"Sex Offender Registration in a Pandemic"

The title of this post is the title of this new piece authored by Wayne Logan now posted on SSRN. Here is its abstract:

This Essay, part of a symposium examining how the COVID-19 pandemic has affected the criminal justice system, addresses whether, and how, state and local governments maintained their requirement that individuals convicted of sex offenses meet with authorities in person to confirm and update their registry information.  Focusing in particular on the first months of 2020, the tale told highlights the distinctiveness of registration: while many governmental operations were suspended, or went online, in-person registration very often persisted.  As a result, registrants were required to travel to a government office (perhaps by public transport), wait in a closed space very possibly with poor ventilation, sometimes for extended periods of time, where social distancing might not have been feasible.  If they failed to satisfy the registration requirement they faced significant criminal punishment.

The in-person registration requirement remained in effect even though registrants often share many of the same health and age-related characteristics of the broader at-risk population, risks often aggravated by sanitary problems associated with chronic homelessness (e.g., lack of access to soap for hand washing) that registrants often experience.  As a result, in-person registration posed the threat of registrants transmitting and contracting the virus, affecting not only the registrants themselves, but also friends, family, and employers, as well as the governmental authorities with whom they had to interact.  As states and localities undertook aggressive measures to stem the spread of COVID-19, the persistence of in-person registration provides a stark reminder of the continued exceptionalism of registration and the population it targets (individuals convicted of sex offenses).

The Essay explores the reasons accounting for this distinctiveness and provides some thoughts on how and why in-person registration persisted in the early stages of the pandemic when so many other governmental operations were suspended or significantly modified.

Law enforcement and prosecutor groups urge Prez Biden to commute sentence of all in home confinement cohort

Via email, I learned this morning about this new letter to Prez Biden from the groups Law Enforcement Leaders to Reduce Crime & Incarceration, Fair and Just Prosecution, and Law Enforcement Action Partnership. Here is how it starts:

We write as individuals and on behalf of our respective national organizations — Law Enforcement Leaders to Reduce Crime & Incarceration, Law Enforcement Action Partnership, and Fair and Just Prosecution — as it pertains to the approximately 4,000 individuals placed on home confinement pursuant the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, who face the continued threat of reincarceration due to the prior administration’s January 15, 2021, Office of Legal Counsel memo (“OLC memo”).  We are pleased to see reports that your Administration is beginning to consider commutations for individuals who have committed nonviolent drug offenses and have been placed on home confinement pursuant the CARES Act.  Joining members of Congress, justice reform advocates across the political spectrum, and companies that currently employ these individuals, we seek to add our law enforcement perspective and urge you to grant clemency to all individuals placed on home confinement pursuant the CARES Act — regardless of underlying offense or sentence.

Some of many prior related posts:

• Notable OLC opinion on "Home Confinement of Federal Prisoners After the COVID-19 Emergency" 
• Spotlighting effectiveness of home confinement under CARES Act and concerns about OLC memo disruption
• Effective review of (just some) issues surrounding home confinement for the Biden Justice Department
• Notably advocacy for Prez Biden to use his clemency power to ensure those released into home confinement need not return to prison 
• Why aren't there much stronger calls for CONGRESS to fix post-pandemic home confinement problems?
• Hoping grandmothers and others on home confinement get compassionate consideration
• Home confinement cohort at risk of being returned to federal prison garnering still more attention (but still little action) 
• Advocacy groups argue to DOJ that OLC home confinement memo is "incorrect" and should be rescinded 
• Senators Durbin and Booker write to Prez Biden requesting "immediate action" to prevent home confinement cohort from facing return to prison 
• Prez Biden reportedly considering, for home confinement cohort, clemency only for "nonviolent drug offenders with less than four years" left on sentence 
• Action beginning on Biden clemency plan for some drug offenders in CARES home confinement cohort 
• Sending a better clemency message while shooting the messenger

Notable new report spotlights onerous nature of electronic monitoring in US

This new NBC News piece, headlined "Other than prison, electronic monitoring is 'the most restrictive form' of control, research finds" report on this interesting new report from folks at George Washington University Law School, titled "Electronic Prisons: The Operation of Ankle Monitoring in the Criminal Legal System."  Here are excerpts from the press piece:

In the past 18 months, as the judicial system has increasingly used electronic monitoring instead of prisons to monitor inmates through the coronavirus pandemic, newly released data confirm what activists and advocates have long argued: Ankle monitors are onerous, and they often subject wearers to vague rules, like avoiding people of “disreputable character.”  The ankle monitoring business, the research found, is also dominated by four profit-seeking companies, and it ultimately could drive more people back to prison.

The new, comprehensive collection of hundreds of electronic monitoring-related rules, policies and contracts, obtained through public records requests across 44 states, demonstrates that four companies that make millions of dollars a year account for 64 percent of the contracts examined in the study.  The companies — Attenti, BI Inc., Satellite Tracking of People LLC and Sentinel Offender Services LLC, according to the report — also keep location data indefinitely, even after monitoring is completed, which is within the law.  Governments also often require family members or employers to act as agents of the government and report potential violations, putting them in an awkward position in which they must be both supportive and supervisory.

Crucially, wearers must pay both one-time and ongoing fees for the monitors, which can be $25 to over $8,000 a year.  The report argues that such costs “undermine financial security when it is needed most.”  By comparison, the Justice Department’s Bureau of Prisons said in 2018 that it costs just under $100 per day to incarcerate a federal inmate, or over $36,000 a year....

“This is a form of incarceration that happens outside of prison walls,” said Kate Weisburd, an associate professor of law at George Washington University, who led a team of 10 law students that filed and analyzed the trove of documents . “It’s always intended to be a positive alternative to incarceration.  But based on what we found, it’s doing the opposite.  More rules and more surveillance generally leads to higher incarceration.”...

Put another way, people on monitors are subject to a vast number of government rules, which “makes compliance difficult,” according to the report.  Some of the rules are quite vague.  For example, the Alabama Bureau of Pardons and Parole mandates that wearers “shall abandon evil associates and ways,” while the New Mexico Corrections Department says parolees must “maintain acceptable behavior.”...

Weisburd’s research found that because the results are open to interpretation and wearers can be hit with “technical violations” of the rules, “people are more likely to be reincarcerated for minor infractions that previously would have been invisible and ignored.”  In most cases, electronic monitoring is coupled with a form of house arrest — wearers must stay at or near their homes for a certain amount of time. They cannot leave without permission in advance.  But according to the policies and contracts that Weisburd and her team obtained, most agencies do not clearly explain how far in advance such permission must be sought. “Basically, every record we looked at had a negative impact, and by every measure it undermines people’s ability to survive outside of prison,” she said. “Just having to comply with the sheer number of rules, vague and broad rules, it means people are getting dinged more easily.”...

The most recent data from the Pew Charitable Trust, released in 2016, found that about 131,000 people were on monitors during a single day.   Weisburd and her team say in the report that “it is likely that the numbers are higher considering the pressure to release people from incarceration because of the pandemic.”...  The frequency with which such monitoring is assigned varies wildly across the country.  For example, Weisburd’s research shows that over 11,000 people who are on probation are also on monitors in Marion County, Indiana, alone, while the entire state of Florida has less than half that number, at just over 5,400.

Here is the introduction of the 54-page report:

The use of surveillance technology to tag and track people on pretrial release, probation and parole is on the rise.  The COVID-19 crisis in prisons and jails, bail reform efforts and bipartisan support for curbing mass incarceration accelerated interest in purported alternatives to incarceration.  As a result, the use electronic monitoring devices, including GPS-equipped ankle monitors, went up dramatically.

Thanks to the leadership of community organizers and advocates, the harmful and racialized nature of this type of carceral surveillance has been exposed.  This report seeks to add to those efforts by examining the specific policies, procedures, contracts and rules that govern the use of electronic monitoring of people on probation, parole and pretrial release.  Drawing on over 247 records from 101 agencies across 44 states and the District of Columbia, this report focuses on the operation of electronic monitoring and reveals the degree to which monitoring impacts all aspects of everyday life and undermines the ability of people to survive and thrive.  In particular, this report focuses on the specific rules and policies governing people on monitors and how they restrict movement, limit privacy, undermine family and social relationships, jeopardize financial security and result in repeated loss of freedom.  Unlike traditional models of probation and parole, electronic surveillance is more intensive, restrictive and dependent on private surveillance companies that are driven by profit motive.  The findings in this report demonstrate what advocates have long said: Electronic surveillance is not an alternative to incarceration, it’s an alternative form of incarceration.  And like incarceration, the deprivations and restrictions of electronic monitoring further entrench race and class-based subordination.

"How often does a judge end up sentencing someone for breaking a law the judge personally disagrees with?"

The question in the title of this post is the "September Question of the Month" from the National Judicial College emailed as "an informal, non-scientific one-question survey to its more than 12,000 judicial alumni in the United States and abroad."  Here are the results, as reported here, for this "informal, non-scientific one-question survey":

Of the 350 NJC alumni who responded, nearly 95 percent said it had happened to them either a few times (55 percent), more than a few times (27 percent) or often (12 percent). Only 5 percent of the judges said they had never had to make a ruling that conflicted with their personal beliefs.

Among the roughly 100 judges who left comments, a common sentiment was that a judge’s job is to apply the law to the situation at hand; judges can’t write the statutes.  “It does not matter how I feel concerning the matter before me,” wrote one anonymous judge.  “My job is to interpret the law as put in place by the legislature, whether I agree with it or not.”  Circuit Judge Michael E. Raiden of Hardee County (Florida), was even more definite: “My subjective personal beliefs … are simply irrelevant.”

Some judges who commented provided examples of categories of laws that conflicted with their personal beliefs. These included:

• Marijuana and other drug usage/possession
• Possession of firearms or other weapons
• Mandatory minimum sentencing

One anonymous judge said marijuana prohibitions “were founded on a lack of scientific analysis and led to more Fourth Amendment confusion than any other law in my lifetime.”

Another judge seemed to disapprove of a law against possession of a firearm.  The judge said the law carried a mandatory minimum five-year prison sentence without the possibility of parole, probation or suspension of sentence, regardless of whether the weapon was property registered.

Connecticut Superior Court Judge Eddie Rodriguez Jr. said mandatory minimum sentences are “an affront to judicial independence and … a violation of the separation of powers….”

Both the question as framed and this discussion of responses leaves me a bit unsure if the goal was to assess whether judges had to enter convictions for what they thought should not be crimes or merely had to impose sentences they thought inappropriate.  I sense both sorts of concerns were part of the answers, but this ambiguity is perhaps a useful reminder of how challenging it can be to make precise inquiries about judicial sentiments.

"Understanding Drug Sentencing" conference feature keynote with former AG Eric Holder and Piper Kerman

After pandemic delays in the hope we could do an in-person event, I am a bit sad that a conference organized by the Drug Enforcement and Policy Center and the Academy for Justice now set for October 7-8, 2021, is still going to have to be on-line.  But, of course, the upside is that everyone all over the country and the world can now attend this event formally titled "Understanding Drug Sentencing and its Contributions to Mass Punishment." The main event page is here, with this overview:

Join the Drug Enforcement and Policy Center and the Academy for Justice October 7-8, 2021 to explore the myriad issues surrounding drug sentencing and its contribution to mass incarceration and mass punishment during this major symposium.  In addition to academics, researchers, and advocates discussing sound drug sentencing policies, this event also includes judges, current and former prosecutors, defense attorneys, and justice-involved individuals sharing their perspectives on drug sentencing practices.  The symposium will take place virtually.

Discussion of the “war on drugs” frequently fails to examine precisely how drug offenders are sentenced — and how they should be. Drug sentencing practices are implicated in many fundamental criminal justice issues and concerns.  Research suggests incarcerating people for drug offenses has little impact on substance use rates or on crime rates more generally.  And, despite reports of comparable use rates, people of color are far more likely to be arrested and incarcerated for drug-related offenses than white counterparts. Mandatory minimum sentencing statutes are applied commonly, but inconsistently, in drug cases and for persons with a criminal history that involves drug offenses.  And while states have created specialty courts to handle the cases of low-level drug offenders, the efficacy and appropriateness of the “drug court movement” has long been subject to debate.

Distinct state and federal realities complicate our understanding of the relationship between the drug war and punishment.  Nearly all federal drug defendants get sent to prison and nearly 50% of the federal prison population is comprised of drug offenders; relatively few state drug offenders are sent to prison and less than 20% of state prisoners are serving time on drug charges.  But data on arrests, jail populations, and community supervision highlight the continued, significant impact drug cases still have on state and local justice systems.  The role of drug criminalization and sentencing contributes to mass incarceration, yet mass punishment can look quite different depending on the criminal justice system(s) and the drugs.

Registration

Separate registrations are provided for each day’s events. Attendees may register separately for each of the events on Thursday, for all Friday events, or both.  See the Agenda page for details and registration links.

As the agenda page details, on day one of the symposium (exactly two weeks from today), there will be the "Inaugural 2021 Menard Family Lecture on Drug Policy and Criminal Justice" on Thursday, October 7 from 12:30-2pm EDT.  Here is the summary description of a discussion that I will have the honor of moderating:

The Drug Enforcement and Policy Center is pleased to invite you to the Inaugural 2021 Menard Family Lecture on Drug Policy and Criminal Justice featuring Eric H. Holder, Jr., former Attorney General of the United States, and Piper Kerman, social justice advocate and author of “Orange is the New Black: My Year in a Women’s Prison,” with special guests Ohio Chief Justice Maureen O’Connor and Chief U.S. District Judge Algenon L. Marbley for the Southern District of Ohio.

NJ Supreme Court holds, as a matter of state constitutional law, that "fundamental fairness" precludes sentence enhancement based on acquitted conduct

A helpful reader made sure I did not miss this notable unanimous opinion by the Supreme Court of New Jersey in State v. Melvin, NO A-44-19 (N.J. Sept. 23, 2021) (available here).  Sentencing fans and long-time readers should know why I think this ruling is spot-on and today's must-read.  Here is how the opinion gets started:

One of the most important tenets of our criminal justice system is the finality of a jury’s verdict of acquittal. These consolidated appeals test that principle through a common legal issue: whether a trial judge can consider at sentencing a defendant’s alleged conduct for crimes for which a jury returned a not guilty verdict.

In State v. Melvin, the jury found Melvin guilty of second-degree unlawful possession of a handgun and, after two trials, not guilty of the most serious charges against him, including first-degree murder and first-degree attempted murder.  At his second sentencing, the trial court -- notwithstanding the jury’s not-guilty verdicts on the murder charges -- determined that the evidence at trial supported the conclusion that Melvin shot the victims.  Citing United States v. Watts, 519 U.S. 148 (1997), the trial judge found that it was within the court’s broad discretion at sentencing to consider all circumstances of the case, including evidence that Melvin was the shooter.  Despite the jury’s verdict, the trial court found that Melvin not only possessed the weapon, but used it to shoot three people.  The trial court sentenced Melvin to a term of sixteen years’ imprisonment with an eight-year period of parole ineligibility.  The Appellate Division affirmed that sentence.

In State v. Paden-Battle, in a trial before the same judge who presided over Melvin’s case, the jury found Paden-Battle guilty of kidnapping, conspiracy to commit kidnapping, and felony murder. The jury acquitted Paden-Battle of the remaining seven counts, including first-degree murder and conspiracy to commit murder.  At sentencing, the trial judge again relied on Watts to make findings of fact, by a preponderance of the evidence, that Paden-Battle, despite having been acquitted of the most serious murder charges, was the mastermind who orchestrated the victim’s murder.  The trial court stated that Paden-Battle falsified her testimony and found that she was the moving force behind the murder and ordered her co-conspirators to act.  The trial court sentenced Paden-Battle to a sixty-year sentence. On appeal, the Appellate Division vacated Paden-Battle’s sentence and remanded the matter for resentencing, holding that the trial court enhanced her sentence based on its belief -- a belief contrary to the jury’s verdict -- that Paden-Battle ordered the execution.

We granted the petitions for certification in both cases and now reverse in Melvin and affirm in Paden-Battle.  Article I, Paragraph 1 of the New Jersey Constitution bestows upon all citizens certain natural and unalienable rights.  From those rights flows the doctrine of fundamental fairness, which “protects against arbitrary and unjust government action.” State v. Njango, 247 N.J. 533, 537 (2021).  For the reasons stated below, we hold today that fundamental fairness prohibits courts from subjecting a defendant to enhanced sentencing for conduct as to which a jury found that defendant not guilty.

Still more great essays at Inquest, including an especially disheartening book review

It has been a couple of weeks since I blogged about Inquest, which is "a forum for advancing bold ideas to end mass incarceration in the United States."  Though regular readers may tire of my promotion of the must-read essays on the site, I am not tired of spotlighting  these recently added pieces:

From Jessica González-Rojas, "Decarcerate Rikers Now: Nothing short of setting people free from the jail complex, and keeping others from going there, will prevent the death and hopelessness now ravaging it." 

From Shima Baradaran Baughman, Christopher T. Robertson & Megan S. Wright, "Cracking the Black Box: One way to keep prosecutors accountable and check their carceral impulses is by shedding some light on their vast discretion to charge crimes. Here’s a start." 

From Angel Harris, "A Judge on a Mission: Here's how a former public defender elected to judicial office in New Orleans works to chip away at mass incarceration." 

The newest posting is a book review by Daniel Harawa of Carissa Byrne Hessick's new book assailing plea practices.  The review make the dispiriting point that trials may be so biased against people of color that harmful plea practices may be the best we can hope for.   I recommend this piece in full, which is titled "Trials Without Justice: Plea bargaining may be a bad deal overall. But for many Black and Brown defendants, is the alternative any better?".  Here is a short excerpt:

Hessick’s portrayal of a plea system that’s out of control is compelling.  The solution that Hessick identifies — more trials — is important, but also raises additional questions and concerns that should not be ignored.  As Hessick explains, the problems with plea bargaining cut across racial lines, yet Black and Brown defendants have another question they must consider before standing on their trial rights — a question that white defendants can usually breeze past: How will their race affect trial?  Hessick acknowledges early on that because the book is “about the criminal justice system, it is inevitably a book about race.”  And as she shows, you cannot consider why someone may accept a guilty plea without thinking about why they would not risk trial . But there is an uncomfortable truth underlying the book: Black and Brown defendants may plead guilty because they think (or know) that they will not get a fair trial because of their race.  Just as the other coercion points that Hessick describes may push a defendant to plead guilty, so too may a defendant’s race.  The decision to go to trial can look very different for Black and Brown people than it does for white people.

"In The Extreme: Women Serving Life Without Parole and Death Sentences in the United States"

The title of this post is the title of this notable new report authored by Ashley Nellis of The Sentencing Project.  Here is how the report gets started:

Extreme punishments, including the death penalty and life imprisonment, are a hallmark of the United States’ harsh criminal legal system.  Nationwide one of every 15 women in prison — over 6,600 women — are serving a sentence of life with parole, life without parole, or a virtual life sentence of 50 years or more.  The nearly 2,000 women serving life-without-parole (LWOP) sentences can expect to die in prison.  Death sentences are permitted by 27 states and the federal government, and currently 52 women sit on death row.

This report presents new data on the prevalence of both of these extreme sentences imposed on women.  Across the U.S. there are nearly 2,000 women serving life-without-parole (LWOP) sentences and another 52 women who have been sentenced to death.  The majority have been convicted of homicide.  Regarding capital punishment, women are sitting on death row in 15 states.  As shown in Figure 1, women are serving LWOP sentences in all but six states.  Three quarters of life sentences are concentrated in 12 states and the federal system.  It is notable that in all states with a high count of women serving LWOP, there is at least one woman on death row as well.  Two exceptions to the overlap are Colorado and Michigan which do not have anyone serving a death sentence because it is not statutorily allowed.

Sending a better clemency message while shooting the messenger

This new New Republic commentary, fully headlined " Biden’s Conservative Vision on Clemency: Thousands of incarcerated people went home early thanks to a Covid relief program. Why would the Biden administration send them back to prison?," continues the annoying tendency of blaming the Biden folks for threatening to send the home confinement cohort back to prison when it is the law passed by Congress (as interpreted by two Justice Departments) that has created the problem.  Here are excerpts (with links from the original):

The Cares Act ... gave the Bureau of Prisons discretion to send certain people home early.  The process involved a rigorous vetting, to ensure that the people chosen were low risk and had served a substantial part of their sentence, and it was effective: Of roughly 4,400 people released under the program, only 190 were sent back for violations, a strikingly low number given how easy it is to break the terms of home confinement. No serious crimes have been reported.

But before Donald Trump left office, administration lawyers determined that once pandemic emergency measures were lifted, Cares Act recipients would have to return to prison.  And Biden’s Office of Legal Counsel declined to reverse the memo.  Still, advocates were hopeful that Joe Biden would issue mass clemency.  So far, that hasn’t happened, leaving Cares Act people anxious about their future and frustrating criminal justice advocates....

Last week, Politico reported that some case workers are being encouraged to have their Cares clients apply to the Justice Department’s Office of the Pardon Attorney, which sounds promising.  But it also suggests that Biden is wedded to an inefficient process that’s created a backlog of close to 16,000 petitions.... 

It’s not clear whether special considerations will be applied to Cares Act recipients, perhaps allowing them to avoid the long trek through the Justice Department.  In fact, not much is clear at all.  Kevin Ring, president of Families Against Mandatory Minimums, said that outside of some leaks to the media, both Cares Act inmates and their advocates are in the dark.  “It’s a crazy lack of transparency,” Ring said.  “Friday afternoon, there’s a phone call to BOP halfway houses saying, this person should fill out a clemency petition in the next couple of days.  Who?  Why?  What [are] the criteria?”...

Amy Ralston Povah, who runs the CAN-DO Foundation, which helps nonviolent drug offenders, is hopeful but frustrated....  She added that Biden’s vision for who deserves early freedom is exceedingly conservative.  “Nonviolent drug offenders are such a limited category,” Povah said.  “Why are others left out?” 

I share Kevin Ring's concerns about a "crazy lack of transparency," though I want to be hopeful along with Amy Ralston Povah about where this is headed.  But I am frustrated because so many seem content to assail the Biden Administration about a problem that is clearly of Congress's making.  As I explained in this post some months ago, titled "Why aren't there much stronger calls for CONGRESS to fix post-pandemic home confinement problems?",  though Prez Biden could (and I think should) use his clemency authority to extended home confinement for those at risk of being sent back to federal prison post-pandemic, Congress is the body that created the CARES Act home confinement authority, and Congress can and should amend the CARES Act to do extend that authority though a few words in an express statutory provision.  Put simply, this matter is a statutory problem that calls for a statutory fix, and blaming Prez Biden for not fully fixing this problem strike me as shooting the messenger. 

I get especially frustrated by this discourse when it is members of Congress who are the ones urging Prez Biden to fix the statutory problem created by Congress.  As explained in this Hill piece, late last week a new letter from more than two dozen House Democrats called on "President Biden to commute the sentences of thousands who were placed on home confinement."  Frustrations aside, I do like that this new letter has legislators asking Prez Biden to improve the existing and badly broken clemency infrastructure.  Here is a key paragraph from the letter:

In addition to the 4,000 people who have been released to home confinement, there are another 15,752 people who, in the midst of this infectious and deadly pandemic, have pending clemency petitions with no real insight on the best way forward for their case.   Thousands with pending clemency petitions have been waiting for a response for years as their cases have languished during previous administrations, including most recently the Trump administration.  While the Trump administration made an effort through home confinement to reduce the number of people inside of BOP facilities, thousands more have been ignored.  The dismissal of their petitions serves only to demonstrate just how ambiguous and broken our clemency system has become.  We, therefore, implore you to establish an advisory board — independent of the Department of Justice — to streamline and modernize the decades-old clemency process, and provide expeditious review of the thousands of cases awaiting answers to their clemency petitions.  This advisory board must address the racially disproportionate impacts of our criminal-legal system.  There is no reason to wait.

Even though I am never keen to see folks shooting the messenger, I am always pleased to see a better clemency message being delivered in the process.  If the push for clemency for the home confinement cohort ends up helping to get our clemency process improved, all the frustrations may almost be worthwhile.

Some of many prior related posts:

• Notable OLC opinion on "Home Confinement of Federal Prisoners After the COVID-19 Emergency" 
• Spotlighting effectiveness of home confinement under CARES Act and concerns about OLC memo disruption
• Effective review of (just some) issues surrounding home confinement for the Biden Justice Department
• FAMM urges AG Garland to prevent those on home confinement during pandemic from being returning to federal prison 
• Notably advocacy for Prez Biden to use his clemency power to ensure those released into home confinement need not return to prison 
• Why aren't there much stronger calls for CONGRESS to fix post-pandemic home confinement problems?
• Hoping grandmothers and others on home confinement get compassionate consideration
• New York Times reporting Biden Justice Department agrees with OLC memo stating prisoners transferred to home confinement must return to prison after pandemic ends
• Home confinement cohort at risk of being returned to federal prison garnering still more attention (but still little action) 
• Advocacy groups argue to DOJ that OLC home confinement memo is "incorrect" and should be rescinded 
• Senators Durbin and Booker write to Prez Biden requesting "immediate action" to prevent home confinement cohort from facing return to prison 
• Still more attention (and some helpful action) for the home confinement cohort
• Prez Biden reportedly considering, for home confinement cohort, clemency only for "nonviolent drug offenders with less than four years" left on sentence 
• Action beginning on Biden clemency plan for some drug offenders in CARES home confinement cohort 

UPDATE: The PBS Newshour had this recent segment on these matters under the headline "Inmates released to home confinement during pandemic fear ‘devastating’ reincarceration."

Rounding up some recent reform reads

As is too often the case, my news feed and in-box is full of really good pieces about criminal justice issues and reform that all merit more attention that the limited bloggy time I have mid-semester.  So I will try to cover lots of ground with this round-up of recommended pieces:

From Ames Grawert & Lauren-Brooke Eisen, "Don’t Let Misleading Claims Derail Federal Sentencing Reform"

From Dana Hall McCain, "A Christian view of prison reform"

From Dawinder Sidhu, "Society has failed to provide adequate ‘offramps’ away from criminal behavior"

From Greg Berman, "America’s Justice System Needs a ‘Course Correction’: Jeremy Travis"

From Joe Lancaster, "Pennsylvania Could Put a Homeless Man in Prison Over 43 Cents"

From John J. Lennon, "I Am Serving 28 Years to Life. Why Does One Person Decide if I Deserve Mercy?"

From Lauren Gill, "Breaking the Link Between Community Supervision and Mass Incarceration"

Oklahoma top court sets executions dates for seven condemned men over the next six months

In this post last month I asked, "Might Oklahoma really try to move forward with seven executions over the next six months?"  That post was prompted by the Oklahoma Attorney General's request to the state's Court of Criminal Appeals to set execution dates for seven death row inmates, including in the high-profile case of Julius Jones.  Now, as reported in this local article, all these execution date have been set:

High-profile death row inmate Julius Jones has been scheduled for execution Nov. 18.  The Oklahoma Court of Criminal Appeals on Monday set execution dates for Jones and six other inmates convicted of murder. The court set the date for Jones even though the Oklahoma Pardon and Parole Board recommended Gov. Kevin Stitt commute his death sentence.

The board voted 3-1 Sept. 13 to recommend his sentence be commuted to life in prison.  If the governor agrees, Jones immediately would be eligible for parole.  Stitt could choose to commute the sentence to life in prison without the possibility of parole. He also could deny commutation.

Oklahoma's new attorney general, John O'Connor, asked the court to schedule the execution dates. O'Connor made the request in August after a federal judge ruled six of the inmates could no longer participate in a legal challenge to the state's execution procedures....  Still in the legal challenge are 26 other death row imates. Their lawsuit in Oklahoma City federal court focuses mainly on the use of a sedative, midazolam, in lethal injections.  Trial is set for Feb. 28.

Jones, 41, is facing execution for the 1999 fatal shooting of an Edmond insurance executive during a carjacking.  Jurors chose the death penalty as punishment at a 2002 trial. The victim, Paul Howell, was gunned down in his parents' driveway in Edmond after a back-to-school shopping trip with his daughters. Stolen was his 1997 Suburban. Jones claims that he is innocent, that the real killer framed him and that his trial was unfair....

Oklahoma has not carried out an execution since January 2015.  Scheduled for execution first is John Marion Grant, 60, an armed robber who was sentenced to death for fatally stabbing a prison kitchen worker in 1998. His execution was set for Oct. 28.

Next is Jones.  Third is Bigler Jobe Stouffer, 78, who was sentenced to death for the 1985 fatal shooting of a Putnam City elementary school teacher. His execution was set for Dec. 9....

Fourth is Wade Greely Lay, 60, who was sentenced to death for killing a security guard during a botched bank robbery in 2004.  His execution was set for Jan. 6.

Fifth is Donald A. Grant, 45, who was sentenced to death for killing two workers at the LaQuinta Inn in Del City during a 2001 robbery.  His execution was set for Jan. 27.

Sixth is Gilbert Ray Postelle, 35, who was convicted of murdering four people on Memorial Day 2005 outside a trailer in Del City. He was sentenced to death for two of the murders and to life in prison without the possibility of parole for the other two.  His execution was set for Feb. 17.

Seventh is James Allen Coddington, 49, who was sentenced to death for killing a Choctaw man in 1997 during a cocaine binge.  His execution was set for March 10.

O'Connor initally had asked for earlier dates. He revised his request when the appeals court did not act.  He told the court he was doing so so that inmates will get a required notice and to allow the parole board time to conduct clemency hearings.  In the order, the four judges on the Court of Criminal Appeals found that the setting of execution dates is now appropriate and required by law.  They acknowledged in a footnote that they are aware of Jones' commutation request. They wrote "this Court's duty to set a date certain is dictated" by law because there is currently no stay in effect.

Given that there have only been four state executions nationwide since the start of the pandemic more than 18 months ago, I would be quite surprised if Oklahoma actually completes so many executions in the next few months. But, as we recently saw with the federal system in 2020, sometimes an attorney general very motivated to restart the machinery of death can get death chambers humming pretty quickly.

Prior related post:

• Might Oklahoma really try to move forward with seven executions over the next six months? 

"Supplementing the Pardon Power: Second Looks and Second Chances"

The title of this post is the title of this online panel scheduled for tomorrow and the second in a terrific series of online panels that will explore in depth the federal clemency powers.   As I detailed in this prior post, this series is jointly organized by the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law, the Collateral Consequences Resource Center, the Federal Sentencing Reporter, and the David F. and Constance B. Girard-diCarlo Center for Ethics, Integrity and Compliance at Villanova University Charles Widger School of Law. 

A whole lot of folks are doing great work putting this series together, and Margaret Love merits extra praise for her efforts and for helping to assemble writings on these timely topics in Volume 33, Issue 5 of the Federal Sentencing Reporter (which largely provides the foundation for these panels).  Here are more details about this first panel:

Supplementing the Pardon Power: Second Looks and Second Chances

Tuesday, September 21, 2021 | 12:30 – 2:00 p.m. EDT | Zoom  (register here)

This panel will look at supplementing, if not supplanting, the pardon power in performing functions that may be better performed by the courts.  That is, should at least some of the pardon action be removed to the federal courts through statutory mechanisms to reduce prison sentences and restore rights and status?  Judge John Gleeson will describe his firm’s Holloway project, which sought to reduce its clients’ lengthy prison terms through the sentence reduction authority in the First Step Act, and consider the extent to which this statutory mechanism should be used to take some of the burden off the pardon power.  Professors JaneAnne Murray and Jack Chin will consider how federal law might be reformed to allow courts to grant pardon-like relief following completion of sentence, through the lens of two 2016 cases in which Judge Gleeson granted post-sentence relief to women he had sentenced more than a decade earlier.  Judge Beverly Martin will consider the role of courts as dispensers of mercy, based on her experiences as a federal prosecutor, a federal trial judge, and a federal appellate judge.  Did Trump’s departure from past pardoning practices pave the way for moving many of pardon’s functions into the courts, as most states have done?

This event is hosted by the David F. and Constance B. Girard-diCarlo Center for Ethics, Integrity and Compliance at Villanova University Charles Widger School of Law.

Panelists:

Jack Chin, Edward L. Barrett Jr. Chair of Law, Martin Luther King, Jr. Professor of Law, and Director of Clinical Legal Education, University of California, Davis, Law School
John Gleeson, attorney and former United States District Judge of the United States District Court for the Eastern District of New York
Judge Beverly Martin, U.S. Court of Appeals for the Eleventh Circuit
JaneAnne Murray, professor of practice, University of Minnesota Law School

Moderator:

Carter Stewart, executive vice president, Andrew W. Mellon Foundation, and former U.S. Attorney for the Southern District of Ohio

Two notable new Forbes pieces on the state of federal sentencing and clemency practices

Though both piece merit their own posts, a busy time means I have to combine my coverage of two recent Forbes piece that are worth full reads.  I will be content with a link and a paragraph to whet appetites:

From Brian Jacobs, "The U.S. Sentencing Commission’s Inadequate Response To Covid-19":

For the past 18 months, federal courts have grappled with the impact of Covid-19 on sentencing proceedings, and a curious disparity has emerged.  On the one hand, anecdotal evidence suggests that federal judges are imposing more lenient sentences in recognition of how the pandemic has made imprisonment harsher and more punitive than in the past. On the other hand, reports available from the U.S. Sentencing Commission tell a different story — at least for now — suggesting that courts have to a great extent ignored the pandemic when imposing sentence.  I have written in the past (here and here) about how the body of sentencing law is effectively hidden from public view (as it exists primarily in court transcripts).  This dearth of readily accessible sentencing law is particularly problematic during the Covid-19 pandemic, as courts are grappling with novel issues in hundreds of cases.  The U.S. Sentencing Commission is uniquely positioned to fill this gap, but so far has largely failed to do so.

From Walter Palvo, "Biden Considering Options To Avoid Returning Federal Inmates To Prison Post Covid-19":

The Biden administration’s Department of Justice has started sending out applications to inmates at home under the CARES Act for consideration of a presidential clemency. To be eligible, the inmate must be home under CARES Act, have been convicted of a drug offense and have 4 years or less remaining in their sentence. I spoke with Amy Povah who runs the non-profit Can Do for Clemency program to help prisoners achieve freedom from federal prison through changing laws and clemency. “President Biden has been handed an easy political gift. There are 4,000 inmates functioning in society, obeying the laws, bonding with family and held accountable for their past actions. There is no better group vetted to be given clemency than this group of CARES Act inmates.”

Senator Cotton: "our severe federal drug sentences are ineffectual, so let's not try to reform them"

Senator Tom Cotton can usually be relied upon to provide the "tough-and-tougher" perspective on federal criminal justice laws and policies, and he yet again plays the role of cruel Bluto via this new National Review commentary.  The piece is fully headlined "No More Jailbreaks: Republicans should oppose Democratic efforts to reduce or soften sentencing for drug crimes."  The first paragraph of the piece does not exactly say what I have in quotes in the title of this post, but it strikes me as pretty close:

Last year, for the first time in American history, more than 100,000 Americans died as a result of drug overdoses and homicides.  This deadly contagion of crime continues to afflict our communities and even shows signs of worsening.  Yet politicians in Washington plan to reduce federal sentences for criminals and release thousands of drug traffickers and gang members back onto the streets.

The rest of the piece goes on to largely mischaracterizes various current reform bills — e.g., I believe Senator Cotton is referencing the bill prohibiting sentence enhancements based on acquitted conduct when he assails a proposal "prohibit judges from taking into account certain past criminal activity in sentencing" — and does so using all sorts of silly rhetoric about "jailbreak" bills while making a bizarre claim that small reforms to the federal sentencing system might somehow "hurt the American rule of law and render our federal prison system impotent." 

Senator Cotton never tires of beating the drum for more and more and more incarceration in the United States, despite the fact we remain the most incarcerated nation in the world.  Notably, though, as he rails against the FIRST STEP Act, he fails to note that this reform was championed by Prez Trump and many on the far right of his party.  And most of those on the GOP side who pushed for the FIRST STEP Act are also supportive of additional federal reforms. Given that Senator Cotton these days seems to be one of the very few, even on the GOP side of the aisle, to be calling for "tough-and-tougher" lock-them-all-up approaches to complicated problems, perhaps we ought all just marvel at what it looks like as he spits into the criminal justice reform wind.