Sentencing Law and Policy

"The case against solitary confinement"

The title of this post is the headline of this lengthy and effective Vox piece from last week.  I call the piece effective in part because, in addition to being well-structured and well-written, it includes lots and lots of links.  Here is how the piece starts (with links retained):

Albert Woodfox was held in solitary confinement for more than 40 years in a Louisiana prison before being released in 2016, when he was 69 years old.  In his book Solitary, published last month, Woodfox writes that every morning, “I woke up with the same thought: will this be the day? Will this be the day I lose my sanity and discipline? Will I start screaming and never stop?”

Thousands of people — at least 61,000 on any given day and likely many thousands more than that — are in solitary confinement across the country, spending 23 hours per day in cells not much bigger than elevators.  They are disproportionately young men, and disproportionately Hispanic and African American.  The majority spend a few months in it, but at least a couple of thousand people have been in solitary confinement for six years or more. Some, like Woodfox, have been held for decades.

Solitary confinement causes extreme suffering, particularly over prolonged periods of months or years.  Effects include anxiety, panic, rage, paranoia, hallucinations, and, in some cases, suicide.

The United Nations special rapporteur on torture, Juan E. Méndez, deemed that prolonged solitary confinement is a form of torture, and the UN’s Mandela Rules dictate that it should never be used with youth and those with mental or physical disability or illness, or for anyone for more than 15 days.  Méndez, who inspected prisons in many countries, wrote, “[I]t is safe to say that the United States uses solitary confinement more extensively than any other country, for longer periods, and with fewer guarantees.”

Many practices in the US criminal justice system are harsh, ineffective, even absurd, from the widespread use of money bail to detain unconvicted people to extremely long sentences and parole terms, and a host of other outrages.  But placing people in solitary stands out as a violation of human rights.

Well over a century ago in the US, the practice fell out of favor, partly because of its capacity for psychological harm. Yet starting in the 1980s, its use in prisons and jails exploded again.

Over the past decade, there has been a movement to (again) stop the widespread use of solitary. There have been major steps forward in some states.  But there’s considerable need for more progress — and wider acknowledgment that this is something that we are all accountable for. As Laura Rovner, a law professor at the University of Denver, put it in a recent talk, “We torture people here in America, tens of thousands of them every day … it’s done in our names, with our tax dollars, behind closed doors.”

No new criminal law cert grants, but still possibilities for a notable SCOTUS week ahead

The Supreme Court granted cert on some notable cases via this order list list morning, the most notable involving questions of how federal employment discrimination laws apply to LGBT employees.  But, for the second Monday in a row, there is little of interest on this list for those of us who obsess over (just) criminal law matters.  However, all is not lost for the week as the Court has on tap for oral argument three criminal justice cases over the next two days.  Via SCOTUSblog:

On Tuesday, the justices hear oral argument in Mitchell v. Wisconsin and Rehaif v. United States.

On Wednesday, the justices hear oral argument in Quarles v. United States.

Of course, the SCOTUS oral argument on census questions scheduled for tomorrow will be sure to overshadow everything else on the docket this week. But, importantly, the Court has also indicated that it will be releasing opinions tomorrow morning, and that means we might get the long-awaited ruling in Gundy v. US concerning federal SORNA and the application of the nondelegation doctrine in this context.  The long wait for Gundy has me thinking something big is afoot in that case (though that might also mean we do not get the opinion for still a few more months).

"Misdemeanors by the Numbers"

The title of this post is the title of this notable new article now available via SSRN authored by Sandra Mayson and Megan Stevenson.  Here is its abstract:

Recent scholarship has underlined the importance of criminal misdemeanor law enforcement, including the impact of public-order policing on communities of color, the collateral consequences of misdemeanor arrest or conviction, and the use of misdemeanor prosecution to raise municipal revenue.  But despite the fact that misdemeanors represent more than three-quarters of all criminal cases filed annually in the United States, our knowledge of misdemeanor case processing is based mostly on anecdote and extremely localized research.  This Article represents the most substantial empirical analysis of misdemeanor case processing to date.  Using multiple court-record datasets, covering several million cases across eight diverse jurisdictions, we present a detailed documentation of misdemeanor case processing from the date of filing through adjudication and sentencing.

The resulting portrait reveals a system that disproportionately impacts poor people and people of color.  Between 2011 and 2016, each jurisdiction studied relied on monetary bail, which resulted in high rates of pretrial detention even at relatively low amounts, and imposed court costs upon conviction.  There were substantial racial disparities in case-filing rates across locales and offense categories.  The data also, however, highlight profound jurisdictional heterogeneity in how misdemeanors are defined and prosecuted.  The variation suggests that misdemeanor adjudication systems may have fundamentally different characters, and serve different functions, from place to place. It thus presents a major challenge to efforts to describe and theorize the contemporary landscape of misdemeanor justice.  At the most fundamental level, the variation calls into question the coherence of the very concept of a misdemeanor, or of misdemeanor criminal justice.  As appreciation for the significance of low-level law enforcement builds, we urge scholars and policymakers to attend carefully to the complexity of this sub-felony world.

Thoughtful look into prison abolitionism (and prison history) in theory and practice

The New York Times magazine has this week's must read under the headline "Is Prison Necessary? Ruth Wilson Gilmore Might Change Your Mind."  The piece is a profile of a noted prison abolitionist along with a broader discussion of prison history and prison abolitionism.  I heartily recommend the terrific lengthy piece in full, and here is an extended excerpt:

Prison abolition, as a movement, sounds provocative and absolute, but what it is as a practice requires subtler understanding.  For Gilmore, who has been active in the movement for more than 30 years, it’s both a long-term goal and a practical policy program, calling for government investment in jobs, education, housing, health care — all the elements that are required for a productive and violence-free life. Abolition means not just the closing of prisons but the presence, instead, of vital systems of support that many communities lack.  Instead of asking how, in a future without prisons, we will deal with so-called violent people, abolitionists ask how we resolve inequalities and get people the resources they need long before the hypothetical moment when, as Gilmore puts it, they “mess up.”...

In the wake of the Enlightenment, European reformers gradually moved away from corporal punishment tout court; people would go to prison for a set period of time, rather than to wait for the punishment to come.  The penitentiary movement in both England and the United States in the early 19th century was motivated in part by the demand for more humanitarian punishment. Prison was the reform.

If prison, in its philosophical origin, was meant as a humane alternative to beatings or torture or death, it has transformed into a fixed feature of modern life, one that is not known, even by its supporters and administrators, for its humanity.  In the United States, we now have more than two million incarcerated people, a majority of them black or brown, virtually all of them from poor communities.  Prisons not only have violated human rights and failed at rehabilitation; it’s not even clear that prisons deter crime or increase public safety.

Following an incarceration boom that began all over the United States around 1980 and only recently started to level off, reform has become politically popular.  But abolitionists argue that many reforms have done little more than reinforce the system. In every state where the death penalty has been abolished, for example, it has been replaced by the sentence of life without parole — to many people a death sentence by other, more protracted means.  Another product of good intentions: campaigns to reform indeterminate sentencing, resulting in three-strike programs and mandatory-minimum sentencing, which traded one cruelty for another. Over all, reforms have not significantly reduced incarceration numbers, and no recent reform legislation has even aspired to do so.

For instance, the first federal prison reform in almost 10 years, the bipartisan First Step Act, which President Trump signed into law late last year, will result in the release of only some 7,000 of the 2.3 million people currently locked up when it goes into effect. Federal legislation pertains only to federal prisons, which hold less than 10 percent of the nation’s prison population, and of those, First Step applies to only a slim subset.  As Gilmore said to me, noting an outsize public enthusiasm after the act passed the Senate, “There are people who behave as though the origin and cure are federal.  So many are unaware of how the country is juridically organized, and that there are at least 52 criminal-legal jurisdictions in the U.S.”

Which isn’t to say that Gilmore and other abolitionists are opposed to all reforms. “It’s obvious that the system won’t disappear overnight,” Gilmore told me.  “No abolitionist thinks that will be the case.”  But she finds First Step, like many state reforms it mimics, not just minor but exclusionary, on account of wording in the bill that will make it even harder for some to get relief.  (Those convicted of most higher-level offenses, for example, are ineligible for earned-time credits, a new category created under First Step.)  “So many of these proposed remedies don’t end up diminishing the system.  They regard the system as something that can be fixed by removing and replacing a few elements.”  For Gilmore, debates over which individuals to let out of prison accept prison as a given.  To her, this is not just a moral error but a practical one, if the goal is to actually end mass incarceration. Instead of trying to fix the carceral system, she is focused on policy work to reduce its scope and footprint by stopping new prison construction and closing prisons and jails one facility at a time, with painstaking grass-roots organizing and demands that state funding benefit, rather than punish, vulnerable communities.

“What I love about abolition,” the legal scholar and author James Forman Jr. told me, “and now use in my own thinking — and when I identify myself as an abolitionist, this is what I have in mind — is the idea that you imagine a world without prisons, and then you work to try to build that world.”  Forman came late, he said, to abolitionist thinking. He was on tour for his 2017 Pulitzer Prize-winning book, “Locking Up Our Own,” which documents the history of mass incarceration and the inadvertent roles that black political leaders played, when a woman asked him why he didn’t use the word “abolition” in his arguments, which, to her, sounded so abolitionist.  The question led Forman to engage seriously with the concept.  “I feel like a movement to end mass incarceration and replace it with a system that actually restores and protects communities will never succeed without abolitionists. Because people will make compromises and sacrifices, and they’ll lose the vision.  They’ll start to think things are huge victories, when they’re tiny. And so, to me, abolition is essential.”

The A.C.L.U.’s Smart Justice campaign, the largest in the organization’s history, has been started with a goal of reducing the prison population by 50 percent through local, state and federal initiatives to reform bail, prosecution, sentencing, parole and re-entry.  “Incarceration does not work,” said the A.C.L.U. campaign director Udi Ofer.  The A.C.L.U., he told me, wants to “defund the prison system and reinvest in communities.” In our conversation, I found myself wondering if Ofer, and the A.C.L.U., had been influenced by abolitionist thinking and Gilmore. Ofer even seemed to quote Gilmore’s mantra that “prisons are catchall solutions to social problems.”  When I asked him, Ofer said, “There’s no question.  She’s made tremendous contributions, even just in helping to bring about a conversation on what this work really is, and the constant struggle not to replace one oppressive system with another.”

"When in Rome... on Local Norms and Sentencing Decisions"

The title of this post is the title of this interesting new empirical paper now on SSRN authored by David Abrams, Roberto Galbiati, Emeric Henry and Arnaud Philippe. Here is its abstract:

In this paper, we show that sentencing norms vary widely even across geographically close units.  By examining North Carolina's unique judicial rotation system, we show that judges arriving in a new court gradually converge to local sentencing norms.  We document factors that facilitate this convergence and show that sentencing norms are predicted by preferences of the local constituents.  We build on these empirical results to analyze theoretically the delegation trade-off faced by a social planner: the judge can learn the local norm, but only at the cost of potential capture.

Some effective criminal justice coverage amid Reason's "Weed Week"

In this new post over at Marijuana Law, Policy & Reform, I have flagged the array of new pieces at Reason in a "Weed Week" series.  Though I recommend many of the ten pieces in the series, two in particular should be of particular interest for sentencing fans.  Here are full headlines, links and short excerpts (with links from the original):

"How Even Legal Marijuana Use Can Land You in Jail: Failed drug tests can send people on probation or parole back into prison cells" by Scott Shackford

There are more than 4.5 million people on probation or parole in the U.S., nearly twice the number of people behind bars at any given time.  All of these folks are subject to incarceration if they violate the terms of their supervised release, and in most places, a prohibition on using cannabis products may be one of those terms.

"Marijuana is a big issue when it comes to parole, but it's just the tip of the iceberg" explains Tyler Nims, the executive director of the Independent Commission on New York City Criminal Justice and Incarceration Reform.  "Parole is a huge issue in criminal justice reform and in particular in New York. But it's unseen and unknown."

According to analysis of probation and parole figures put together by the Pew Charitable Trusts, a little more than half of probation and parole stints end without incident.  But nearly 350,000 people get new jail terms annually because they've failed to complete probation or parole with a spotless record.  In some states, revocation of supervised release is the main driver of incarceration.  In Georgia, for example, 67 percent of new prison admissions in 2015 were due to revoked probation or parole.  The same was true in Rhode Island, where 64 percent of new prison admissions in 2016 were due to supervised release revocations.

Judges have wide discretion to set the terms for release.  That often includes prohibiting behavior that is otherwise perfectly legal. Probation and parole guidelines can limit where people go, who they can consort with, and what they may or may not consume.  Earlier this year, a judge in Hawaii told a man arrested for stealing car that he could not consume Pepsi while on probation — and put him under supervised release for four years.  While incidents like that one are relatively rare, prohibiting the use of marijuana while on supervised release is standard.

Whether marijuana use will continue to be deemed a violation is something to watch and weigh in on as state-level legalization continues.

 

"Pot Can Earn You Profits or a Prison Sentence: It all depends on where you happen to be" by Jacob Sullum

An estimated 40,000 marijuana offenders are serving time in state or federal prisons for agricultural or commercial activities that are now legal in nine states, earning entrepreneurs profits instead of prison sentences.  According to the website lifeforpot.com, more than two dozen marijuana offenders are serving life sentences or prison terms that amount to the same thing.

Life sentences for cannabis are rare, and the vast majority of people arrested on marijuana charges — about 660,000 in 2017, nine out of 10 for simple possession — serve little or no time behind bars (although they may suffer long-lasting ancillary penalties).  But some states still come down hard even on minor pot offenses.

In ... Georgia, possessing one ounce or less of marijuana is a misdemeanor punishable by up to a year in jail and a $1,000 fine.  Any more than that is a felony, triggering a one-year mandatory minimum and a maximum of 10 years for amounts up to 10 pounds.  Pot penalties are similarly harsh in Arkansas, Florida, Idaho, Oklahoma, South Dakota, Tennessee, and Wyoming, where the lowest-level marijuana offense can be punished by up to a year behind bars.

Even states that are not quite so punitive can have nasty surprises in store for cannabis consumers.  In Texas, possessing two ounces or less of marijuana is a misdemeanor punishable by up to six months in jail.  But possessing any amount of cannabis concentrate is a felony, and the maximum penalties apply to weights above 400 grams.  The entire weight of food or beverages spiked with concentrate counts toward that threshold, which is why a teenager caught with 1.4 pounds of pot cookies and brownies in 2014 initially faced a sentence of 10 years to life.

Can and will Kentucky's Gov pioneer a (terrific) new institution by creating a "sentencing integrity unit"?

The question in the title of this post is promoted by this interesting local AP article headlined "Tennessee, Kentucky govs talk up criminal justice reform."  Here is the portion of the piece prompted the post:

Tennessee Gov. Bill Lee said Wednesday that he has started evaluating his first clemency plea from a death row inmate, who is slated for execution next month.  Lee made the comments at a forum alongside fellow Republican Gov. Matt Bevin of Kentucky about criminal justice reform at Belmont University's College of Law....

Kentucky hasn't executed any inmates in more than a decade, well before Bevin took office.  But the first-term governor says he has seen no need to wait until he's leaving office to grant pardons to prisoners, as is often customary for governors.  "I think if a person is worthy of being pardoned now, why should they have to wait four years?" Bevin said.  "To me, that's crazy."

Both governors outlined criminal justice priorities and initiatives in an event co-hosted by Men of Valor and Right on Crime.  Bevin said he plans to create a sentencing integrity unit, saying mistakes just get made in sentencing.

He wondered out loud whether to grant prisoners re-entering society a one-year free pass for public transportation.  "I'm convinced something like that could work and that would go a long way at no real cost to anybody to fixing a problem that is a real problem," Bevin said.

For a host of reasons, effective sentencing reform requires structural changes to our criminal justice system as well as substantive ones. And the idea of a "sentencing integrity unit," committed institutionally to identifying and seeking to remedy the "mistakes [that] get made in sentencing," seems to be a terrific structural change. The name suggested for this unit suggests it would be modeled on the many dozens of "conviction integrity units" now in operation around the nation doing critical work seeking to remedy wrongful convictions. (The National Registry of Exoneration has lots of good information on conviction integrity units at this link.).

I sincerely hope Gov Bevin creates a sentencing integrity unit ASAP and that it gets all the political and practical support it will need to be maximally effective.  I also hope Gov Bevin will promote this great idea to other chief executives and other criminal justice officials.  Notably, a number of local prosecutors have done pioneering work in the development of conviction integrity units, and they can have an important comparable role here.  And, as noted in this post last year, Philly DA Larry Kraser and other new prosecutors have been taking an active role reviewing old sentences in various ways.  As I see it, Governors and prosecutors and sentencing commissions and every other official sworn to help achieve justice in a jurisdiction ought to devote at least some portion of time and resources double-checking to make sure past sentences still being served do not become a marker and source of injustice. 

"Quelling the Silver Tsunami: Compassionate Release of Elderly Offenders"

The title of this post is the title of this 2018 article authored by Jalila Jefferson-Bullock recently posted to SSRN. Though authored before the passage of the FIRST STEP Act, the article is still particularly timely in light of that new law's various provisions enabling the moving certain defendants out of prison and into home confinement.  Here is the article's abstract:

Sentencing reform appears resurrected.  Following a brief hiatus and an expectedly unwelcoming recent federal response, sentencing reform is again reemerging as a major initiative.  Congress and the several states are poised to immediately accomplish major reform of the United States criminal sentencing structure.  Proposals that would, among other initiatives, drastically reduce criminal sentences, restore rehabilitative programs to inmates, generate sentencing parity, normalize probation for low-level offenses, and shrink the overall prison footprint are ambling through various legislative processes throughout the country.  Though groundbreaking and certainly welcome, these reforms largely ignore the special needs of the imprisoned elderly.  One of the most foreseeable, yet ironically ignored, consequences of 1980's and 1990's harsh sentencing laws, is the dramatic upsurge in prison population through the predictable process of human aging.  Coined the prison “silver tsunami” phenomenon, surging numbers of elderly inmates raises significant moral, health, and fiscal implications deserving keen scrutiny.  It is imperative, then, that any overhaul of criminal sentencing focuses on how to meaningfully address the graying of America's prisons.

Reviewing Ohio's (now-suspended) execution realities

The Cincinnati Enquirer has this lengthy new article headlined "As Ohio struggles to find a painless way to kill death row inmates, is this the end of death penalty?". Here are excerpts:

Jeffrey Wogenstahl was supposed to die Wednesday.... But that didn't happen.  Wogenstahl's case began in 1991 when 10-year-old Amber Garrett went missing and was found dead three days later in Indiana.  A jury found him guilty of beating and stabbing the girl to death. Wogenstahl was 31 at the time.  He's 58 now.

After 27 years of lawsuits and appeals with three cases pending at the county, state and federal level, Wogenstahl was granted an indefinite stay of execution by the Ohio Supreme Court last fall due to open questions about his case.

Since then, Ohio Gov. Mike DeWine has suspended all executions in a continuing struggle for the state to find a painless way to kill death row inmates.  With drug suppliers refusing to allow their products to be used to kill people and botched executions making headlines, Ohio's death penalty is on life support.

Wogenstahl managed to live past the day Ohio first scheduled for his death without the help of Mike DeWine, but he and the 137 other people on death row are likely wondering what the governor and legislature might do next.

DeWine recently ordered the Ohio Department of Rehabilitation and Correction to find a new method for executing death row inmates.  Until that happens, all executions are on hold.  A federal magistrate called Ohio's three-drug death penalty protocol "cruel and unusual punishment" banned by the U.S. Constitution. That carried weight with the governor. "Having that opinion in front of me, I felt that Ohio shouldn't be carrying out an execution while we know those facts," DeWine told The Enquirer.

The main problem: the first drug administered, midazolam.  Midazolam is a sedative used in some surgeries to relax the patient and block the formation of traumatic memories. It's not a painkiller, even at high doses, experts testified before the federal magistrate.

Midazolam can lead to pulmonary edema, a condition where fluid fills the lungs making it difficult to breathe. One doctor compared it to the torture technique of waterboarding. And the amount of midazolam that Ohio uses to execute prisoners would cause "severe burning sensations in the blood vessels," a doctor testified.  An autopsy showed Hamilton County Killer Robert Van Hook suffered from the condition when he was executed in July 2018.  He was the last person put to death before DeWine's suspension.

After the midazolam, Ohio then injects a paralytic and potassium chloride to stop the inmate's heart. Without an analgesic, the inmate would feel the pain of both those drugs even if he were unconscious, according to doctors' testimony. Ohio executed three death row inmates using this three-drug combo.  But the next person executed in Ohio will likely die by another method....

Ohio used a single drug, pentobarbital, until manufacturers refused to sell it to states for executions. So the state switched to an untested, two-drug combination of midazolam and hydromorphone for Dennis McGuire, who was convicted of raping and fatally stabbing a pregnant woman.  McGuire's execution in January 2014 took almost 26 minutes — the longest since Ohio reinstituted the death penalty in 1999.  He struggled, gasped for air and choked for about 10 minutes before eventually dying, according to a Columbus Dispatch witness. The fallout from McGuire's execution stalled Ohio's death penalty for three and a half years.

During that time, the state created its new three-drug protocol and changed policies to obtain the drugs....

State Public Defender Tim Young and his office are leading a lawsuit against the current lethal injection practices. One problem: Ohio keeps changing its methods. "Whenever the Department of Correction changes the protocol, you essentially reset the litigation," Young said.

Though he agrees with the governor's actions, Hamilton County Prosecutor Joe Deters said the debate over what drugs to use is just a charade to obstruct the death penalty in a state where the public supports it.  "The reality is we are killing someone.  It's not pretty.  It's ugly," he said, rattling off alternatives to lethal injection. "We've got a boatload of fentanyl sitting in (storage) right now. Bring back the firing squad. That has been ruled constitutional."

DeWine's political experiences have given him a unique perspective on capital punishment.  He sponsored legislation to reinstitute the death penalty legislation as a state lawmaker, fought against death row inmates' appeals as the state's attorney and now governs a state where the death penalty is legal....  But should Ohio continue the death penalty?  DeWine didn't take a stance when asked by The Enquirer.  "That is a discussion that certainly can take place, but I’m not going to engage in that today," he said....

Twenty states have abolished the death penalty. Some, such as Michigan, have never executed a prisoner.  Others have outlawed it in the past decade, concerned about its constitutionality, racial bias, cost or potential wrongful convictions. But Ohio is unlikely to join that list anytime soon.  The state's GOP-controlled Legislature has little appetite for limiting, much less banning, capital punishment.

In 2011, Ohio Supreme Court Chief Justice Maureen O'Connor, a Republican, led a task force of judges, prosecutors, defense attorneys and academics, who studied ways to improve the state's death penalty.  One recommendation — to ban the death penalty for individuals with a documented serious mental illness — has been proposed repeatedly by a bipartisan group of lawmakers only to die in committee. The main opponent to these limits on the death penalty: the Ohio Prosecuting Attorneys Association....

Democratic lawmakers have repeatedly introduced bills to abolish the death penalty in Ohio to no avail.  Still, Sen. Nickie Antonio, D-Lakewood, said she sees DeWine's call for a new protocol as an opportunity to move the conversation forward.  "Any time there’s difficulty in figuring out how to execute people, that’s a window to discuss whether the death penalty is even appropriate," Antonio said.

But it's possible DeWine's delay could have the opposite effect.  Lethal injection is currently the only execution method on the books in Ohio, but lawmakers could recommend an alternative, such as electrocution, firing squad, gas chamber or hanging. Senate President Larry Obhof has said he's happy to explore other options.  "We are all concerned that if you're going to have capital punishment, you should have a process in place that courts are willing to accept and meets constitutional muster," he told The Enquirer.

Lawyers, guns and vagueness: how will SCOTUS look to get out of this Johnson mess?

With apologies to the late great Warren Zevon, I cannot help but riff on the all-time greatest song with lawyers as the first word of its title as I think about the Supreme Court's scheduled oral argument this morning in United States v. Davis.  Over at SCOTUSblog, Leah Litman has this extended preview of the argument under the title "Who’s afraid of the categorical approach?," and it provides some context for my pop-culture reference: 

Davis is the latest in a string of cases stemming from Johnson v. United States, the 2015 decision invalidating the Armed Career Criminal Act’s residual clause (Section 924(e)(2)) as unconstitutionally void for vagueness....  [T]he now-defunct residual clause defined a violent felony as an offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”... 

And last term, Sessions v. Dimaya invalidated a provision worded similarly to ACCA’s residual clause — Section 16(b), the federal criminal code’s general definition of “crime of violence.” Section 16(b) defined a crime of violence as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”  That brings us to Davis.  Davis involves a provision, Section 924(c)(3)(B), that is identical to Section 16(b).  Section 924(c) creates a graduating set of penalties for using a firearm “during and in relation to any crime of violence.”

But why would the two statutes, Section 16(b) and Section 924(c), be interpreted differently if they are worded the same way?  In arguing that Section 924(c) is not void for vagueness even though Section 16(b) was, the government makes a few points.  None of them completely distinguish the two provisions.  For example, the government invokes the canon of constitutional avoidance, which says that courts should interpret statutes in ways that avoid the statute being unconstitutional.  That argument also applied to Section 16(b) in Dimaya.  The government also maintains that the best interpretation of Section 924(c) is that it calls for a circumstance-specific determination about whether a defendant’s actual offense conduct satisfies the substantial-risk test because Section 924(c) “applies only to the conduct for which the defendant is currently being prosecuted.” That claim would ostensibly apply to Section 16(b) as well, or at least some applications of it.  Because Section 16(b) is the general definition of crime of violence, it is incorporated into many different criminal statutes, some of which use the term to refer to the conduct for which the defendant is currently being prosecuted.

But distinguishing Sections 16(b) and 924(c) may not be necessary if the court thinks that upholding Section 924(c) is more important than sensibly distinguishing 924(c) from 16(b)....  There is also the more important question of how courts would interpret Section 924(c) if they didn’t use the categorical approach.  In Dimaya, Thomas and Alito said they wanted to adopt a circumstance-specific approach that assessed the defendant’s actual offense conduct (i.e., the specific facts about what the defendant did). Perhaps unsurprisingly, the government urges the court to adopt that approach to interpreting Section 924(c). The respondent, Maurice Davis, counters that the government’s interpretation of Section 924(c) would be both unpredictable and sweeping, and would leave matters to the whim of juries, generating conflicting results.  Davis also argues that the government’s proposed interpretation of Section 924(c) is inconsistent with the statute’s text, which directs courts to determine whether “an offense” “by its nature” involves a substantial risk, not whether the facts underlying the offense involve a substantial risk.

Another preview of this case and today's argument is available here from Jordan Rubin at Bloomberg Law under the headline "Guns, Violence, Gorsuch in Spotlight in Supreme Court Dispute."

Because Justice Gorsuch was the key swing vote in Dimaya, these previews sensibly highlight his importance in the resolution in Davis. But I will also be interested to see if Justice Kavanaugh has anything notable to say during oral argument today. Because his predecessor, Justice Anthony Kennedy, was not a big fan of Johnson jurisprudence, and because his pal Chief Justice Roberts also seems to favor the government in these cases, I am inclined to guess Justice Kavanaugh will be resistant to extending Johnson. But you never know how his extended history as a circuit judge might shape his views on these kinds of cases.

Spotlighting how reduced support for the death penalty is now a bipartisan reality

Alan Greenblatt has this notable lengthy new piece at Governing under the headline "Why the Death Penalty Has Lost Support From Both Parties."  I recommend the piece in full and here are excerpts:

Twenty years ago, most politicians in both parties supported the death penalty.  But today, opposition to it has become increasingly bipartisan.  Democrats have always been more wary, but now more conservatives have also become convinced that capital punishment is another failed government program.  In part, that's because the legal process for such cases is enormously expensive, even though few executions are ever carried out.

“When you look at how much money we’re spending, no one looks at that and thinks the death penalty works fine,” says Hannah Cox, national manager for Conservatives Concerned About the Death Penalty, a pro-abolition group.  “We’re seeing a real escalation as far as the number of Republican legislators who are sponsoring repeal bills.”...

Lately, the spotlight has shifted to New Hampshire, where last week the legislature sent the governor a bill to repeal the death penalty.  Both chambers passed the bill by veto-proof margins, with bipartisan support.  Once the legislature overrides GOP Gov. Chris Sununu’s expected veto, New Hampshire will be the 21st state to outlaw capital punishment.  Colorado and Nevada could be next -- both have repeal bills currently pending.

For the first time since the death penalty was put back into practice during the 1970s, a majority of Americans now live in states that have abolished the practice or imposed a moratorium on it, according to the Death Penalty Information Center, which researches the issue.  Still, support for capital punishment has not vanished.  Polls show that a majority of Americans continue to back it....

“When you talk about death penalty, a lot of people immediately want to have a criminal justice angle on it or a morality angle,” Chad McCoy, the Kentucky House Republican whip and sponsor of an abolition bill, told The Hill. “Mine is purely economics.”...

It’s not only lawmakers who have grown more skeptical about capital punishment.  Prosecutors have, too. In part due to the costs associated with capital cases, the death penalty has essentially disappeared from rural counties, says [Prof Brandon] Garrett, author of End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice.  Fewer than 2 percent of the counties in the nation are responsible for half the death row convictions, according to the Death Penalty Information Center.

Not long ago, jurisdictions like Philadelphia County, Los Angeles County and Harris County, which includes Houston, were imposing 10 or more death sentences apiece per year.....  But there’s been a changing of the guard in many large counties over the past two or three years, including Harris and Philadelphia.  Voters are electing reform-minded prosecutors who are less likely -- or completely unwilling -- to seek execution as a punishment. 

Last year, no county in the United States imposed more than two death sentences.  During the mid-1990s, there were more than 300 death sentences imposed annually for three years running. Last year, the total was 42.  There hasn’t been more than 100 since 2010....

In 2016, the same year Trump was elected, Nebraska voters overturned a death penalty repeal that had been passed by the legislature, while California voters rejected a ballot measure to end capital punishment.  But if 2016 seemed to signal a shift back in favor of capital punishment, the momentum hasn't been sustained.  Under Trump, just three federal prisoners have been sentenced to die.  In last year’s elections, two governors who imposed moratoriums on the death penalty -- Democrats Kate Brown of Oregon and Tom Wolf of Pennsylvania -- both won reelection.  Conversely, two governors who vetoed abolition bills -- Republicans Pete Ricketts of Nebraska and Chris Sununu of New Hampshire -- also won reelection....

If crime rates increase, support for the death penalty could make a comeback. And many politicians and prosecutors want to keep execution available for punishing the “worst of the worst.”  In Florida, for example, prosecutors are seeking the death penalty for the alleged shooter in last year’s Parkland high school massacre.

Death penalty experts agree that the practice will not be completely abolished anytime in the foreseeable future.  But both the use of the death penalty and political support for it has declined markedly since the 1990s, when it was a wedge issue that moved many voters.  The list of states abolishing the death penalty continues to grow.  “I see the death penalty ending with a whimper, not a bang,” Garrett says. “It may be that the best thing is to allow states and communities to decide what’s best for them.”

This effectively review of the state of the capital mood in the United States will be interesting to revisit as we move into the 2020 election cycle. It seems quite possible that advocates and perhaps the base of the Democratic party will seek a Prez nominee who will actively embrace death penalty abolition. Prez Trump, who clearly likes to talk up his support for the death penalty, might well be eager to turn capital punishment into a wedge issue once again.

"Crimsumerism: Combating Consumer Abuses in the Criminal Legal System"

The title of this post is the title of this interesting-looking new paper recently posted to SSRN and authored by Alex Kornya, Danica Rodarmel, Brian Highsmith, Mel Gonzalez and Ted Mermin. Here is its abstract:

Increasingly, Americans who have contact with the criminal legal system find themselves deprived not just of their liberty but also of their property.  In recent years, advocates have shed light on the court-imposed fines and fees levied on low-income individuals who have contact with the criminal legal system.  But less attention has been paid to the charges imposed on these individuals and their families by the private companies that now administer components of the American criminal and immigration legal systems.  Much criminal legal debt is now owed not to the state, but rather to the vast network of private companies profiteering from the criminalization of poverty and communities of color. As a result, a person in jail who wants to make bail or to call their family, or a parent who wants to make sure their child has basic necessities while in prison, or a teenager who has just been ordered to attend a rehabilitation program, all face the potential trauma not just of incarceration but also of spiraling indebtedness.

This Article seeks to illuminate the commercial abuses occurring in the shadows of the criminal legal system — to draw attention to the problem of “crimsumerism.”  The Article also seeks to ameliorate the problem.  In addition to traditional civil rights-focused claims like § 1983, the Article proposes the application to private correctional businesses of a different set of laws entirely: consumer protection statutes.  If bail bond companies and private debt collectors are routinely engaged in abusive, predatory behavior with respect to individuals who have contact with our criminal legal system, then those businesses should be held accountable through the same laws that would apply were they operating in any other corner of the marketplace.  Holding bail bond agents and debt collectors to account through the Truth-in-Lending Act, the Fair Debt Collection Practices Act, or state Unfair and Deceptive Acts and Practices laws means that some of the most vulnerable consumers in our society will have access to additional protections, while advocates simultaneously work to end mass incarceration and criminalization in the United States.  Over the long term, vigorous enforcement of consumer protection laws will reduce the predatory practices that are currently widespread in the modern corrections industry and ultimately, perhaps, help to eliminate exploitation and other abuses from our criminal legal system altogether.

Notable account of similar states now having different approaches to parole and sentencing reforms

Thanks the the Marshall Project, I just saw this recent local article headlined "As Alabama slowed early paroles, it was slapped for its overcrowded prisons."  The piece is notable in the wake of the recent awful Justice Department report, noted here, about the horrible condition of Alabama's prisons.  And I found particularly interesting the lengthy article's contrasting account of parole and sentencing reform practices in a neighboring state:

Mississippi, according to the Sentencing Project, took several steps highlighted in the Sentencing Project report, some which Alabama has yet to consider: It scaled back sentencing guidelines for nonviolent convictions and applied them retroactively, leading to a substantial increase in paroles and accounting for two-thirds of the population reduction.

Alabama, by contrast, did not apply its 2015 prison reform legislation retroactively and the Justice Department, in its scathing review of Alabama’s prison system, has taken note: “In an effort to decrease the prison population, the law created a new class for felonies for low-level drug and property crimes and reformed parole boards. However, it did not apply retroactively, and the effect on Alabama’s prison population has been minimal.”

Bennett Wright, executive director with the Alabama Sentencing Commission, said there “is a lot of discussion” in Montgomery toward possible retroactive considerations toward leniency. “I haven’t heard a legislator stand up and definitively say that, but there has been a lot of conversation about it,” said Wright. “That’s where our immediate future is in evaluating the possible effects and possible reforms on Alabama’s existing (prison) population and population moving forward.”

Mississippi adopted a risk assessment instrument that contributed to doubling of parole approval rate to more than 50 percent. The measures retroactively allowed consideration for parole for more types of crimes where certain “aggravating circumstances” had previously disqualified inmates from consideration.  Also, individuals deemed “nonviolent habitual offender” were allowed to petition for parole consideration.  The changes also allowed parole consideration for people ages 60 and up and who had served at least 10 years and were parolable under other provisions of the law.

Alabama, by contrast, does not have detailed risk assessment measurements, although the Board of Pardons and Paroles considers factors like family ties and employment prospects when considering early parole applications.  

A few decades ago it often seemed states were competing to see who could be tougher on crime.  Encouragingly (though still not consistently), modern politics and practical realities make it essential for states to try be ever smarter on crime.

Extended letter from criminal justice groups calling for robust implementation of the FIRST STEP Act's prison reforms

Via email today, I learned of this notable lengthy letter signed by an array of criminal justice groups addressing key issues related to the implementation of the prison reform components of the FIRST STEP Act.  Because the full letter runs seven pages, I will provide the summary that appeared in the email that I received:

[T]his sign-on letter call[s] for the implementation of the First Step Act in a manner that is consistent with Congressional intent and the text of the statute.  The letter, led by The Leadership Conference on Civil and Human Rights, ACLU, and Justice Rountable, was addressed to the Department of Justice’s National Institute of Justice Director David Muhlhausen, and makes the following three arguments:

(1) DOJ must appoint an appropriate “non-partisan non-profit” host organization with expertise in the study and development of risk and needs assessment tools to select and convene the members of the Independent Review Committee as required by the statute;

     a. NIJ appointed The Hudson Institute — a conservative think tank with no visible expertise or experience in the study and development of risk and needs assessment systems — to host the IRC.

     b. The Hudson Institute has selected at least three members for the IRC whom may not meet the stated criteria outlined in the statute.

(2) Neither the Bureau of Prisons (BOP) security classification system nor the current version of the Post Conviction Risk Assessment (PCRA) should be adopted as a substitute for the Risk and Needs Assessment System required by the statute;

     a. The BOP security classification and the PCRA were not designed to identify specific criminogenic needs and heavily relies on static factors that classify many people who do not go on to reoffend as high risk.

(3) The Bureau of Prisons must immediately begin providing rehabilitative programming.

Some of many prior related posts on FIRST STEP Act implementation:

• Might the US Sentencing Commission provide some real-time updates on the implementation of the FIRST STEP Act? 
• FAMM sends letter to BOP and DOJ to urge full implementation of key provisions of the FIRST STEP Act
• "3 more steps to make 'First Step Act' work"
• Might White House provide "impact data" on FIRST STEP Act as Prez Trump celebrates the law next week? 
• "Trump Celebrates Criminal Justice Overhaul, but His Budget Barely Funds It" 
• Encouraging news and inspiring notes as White House celebrates FIRST STEP Act
• "Department of Justice Announces First Step Act Implementation Progress"
• A few comments on implementing the FIRST STEP Act in written testimony from AG William Barr 
• Spotlighting concerns about organization tasked with helping Justice Department develop and implement risk and needs assessment tools under FIRST STEP Act 

Notable new advocacy against a "soft-on-crime prosecutorial agenda"

Kimberly Guilfoyle has this notable new Hill commentary under the headline "Avoid the slippery slope of 'soft-on-crime' policies that progressives want." Much of the piece is focused on immigration policy, but other domestic crime and punishment issues are covered, as revealed by these excerpts:

The liberal wing of the Democratic Party is adamant on upending decades of sound law enforcement policies in favor of a radical progressive approach.  Open borders, weak-on-crime prosecutors, and drug injection sites are on the table. It’s time to fight back against these misguided policies and take a stand for the rule of law.

By all measures, Americans are enjoying a golden era of safety.  Violent and property crime offenses have plummeted in the past 25 years.  In a recent Gallup poll, only 30 percent of Americans stated they would be afraid to walk alone at night within a mile of where they live, a historic low for this survey question.

As a former prosecutor, I know a thing or two about policies that keep people safe. To be clear: “Broken Windows” policing works. Locking up criminals works.  Strong sentencing guidelines work.  And yet, Democrats want to completely throw this time-tested playbook out the window to appease their growing progressive base....

Buoyed by liberal, wealthy donors and other special interest groups, progressive prosecutors are gaining traction across the country.  Nowhere is this better illustrated than in Philadelphia where District Attorney Larry Krasner has worked diligently to craft a soft-on-crime prosecutorial agenda.  Under Krasner’s guidelines, a grab bag of criminal offenses no longer are prosecuted.  Heinous crimes such as homicide even have gotten the “kid gloves” treatment because Krasner believes that we should not “overcharge” felons, even those who kill.  As a result, a shocking number of defendants have had their sentences reduced from murder to manslaughter.  Krasner has become the poster child for other progressive district attorneys across the country seeking to undermine the rule of law.

Progressives also have gained steam in their fight to open up so-called “safe” injection sites across the country, where addicts can use illegal street drugs in a medically sanctioned environment. Undeniably, safe injection sites further normalize the use of extreme drugs.  These sites offer no restrictions on who can shoot up and when. Should a minor be allowed to try black tar heroin for the first time uninterrupted? Are law enforcement officers going to be forced to watch while exploitative drug dealers sell dope to vulnerable addicts? How many times can an addict overdose in a single day?

Thankfully, the Trump administration has been pushing back against these radical policies and standing strong for the rule of law.  This means tougher punishments for criminal aliens and more funds for border security measures, stronger measures against those flooding our communities with opioids, and promises of a stringent crackdown on any city that supports a safe injection site.

These policies make our country safer and stronger. Law enforcement should always focus on putting the interests of families and children first.  With this in mind, we can’t let the radical left undue decades of steady progress.  We must stand with President Trump to keep our nation safe.

Perhaps unsurprisingly, this commentary does not mention that, according to Philadelphia Police Department data, violent crime in Philly reportedly went down by five percent in 2018 (though homicides were up 10%), and violent crime has remained at that lower rate so far in 2019 (though with homicide still moving up).  This commentary also, notably, makes no mention of the Trump Administration's support for the FIRST STEP Act.   In this context, I know I am happy to "stand with President Trump" when he stressed at the White House this important point earlier this month: "Americans from across the political spectrum can unite around prison reform legislation that will reduce crime while giving our fellow citizens a chance at redemption."

Specifics aside, I highlight this commentary because it provide a useful reminder of how readily we might slide back into the tired-old "soft-on-crime" rhetoric that defined domestic discourse on crime and punishment for decades in the United States. Though there are no shortage of wedge issues in our current political discussions, crime and punishment has a dangerously classic character.

Fascinating map and data highlighting prevalence and intensity of marijuana's criminal enforcement footprint

Over at the Washington Post, Christopher Ingraham has this great new piece fully titled "Where the war on weed still rages: In some U.S. counties, more than 40 percent of all arrests are for marijuana possession." The title highlights the piece's themes, but the text and a map therein reinforce the point in various ways:

Marijuana possession led to nearly 6 percent of all arrests in the United States in 2017, FBI data shows, underscoring the level of policing dedicated to containing behavior that’s legal in 10 states and the nation’s capital.

But the figure obscures the considerable variations in enforcement practices at the state and local levels.  In many areas of the country in 2016, more than 20 percent of all arrests stemmed from pot possession, according to newly released county-level arrest figures from the National Archive of Criminal Justice Data.  The figure exceeds 40 percent in a handful of counties, topping out at nearly 55 percent in one Georgia county.

The data tracks arrests, not individuals, so there’s no mechanism for winnowing out repeat offenders.  Nor does it include arrests for the sale or production of marijuana. But the numbers still illustrate how marijuana enforcement continues to make up a big part of many police agencies’ caseloads.

The findings reflect, in part, a few simple realities: The federal government incentivizes aggressive drug enforcement via funding for drug task forces and generous forfeiture rules that allow agencies to keep cash and other valuables they find in the course of a drug bust.  And because marijuana is bulky and pungent relative to other drugs, it’s often easy for police to root out.

But given that recreational marijuana is legal throughout the West, and that two-thirds of the public supports legalization, critics view such aggressive enforcement tactics as wasteful, ineffective and even racially biased....

Nationwide, a few clear patterns emerge in the county-level arrest statistics from 2016, the latest year for which data is available.  A swath of mostly conservative states, running from North Dakota through Texas, is home to many counties where marijuana enforcement accounts for 10 percent or more of all arrests — well above the national average.

But those conservative states are by no means alone.  On the East Coast, New York and New Jersey stand out for relatively high arrest rates for marijuana possession. In New England, New Hampshire — the “Live free or die” state — also shows a high number of arrests relative to its neighbors.

States that have legalized marijuana, on the other hand, tend to have lower arrest rates. Colorado and Washington, where recreational use had been legal for two years at the time the data was taken, few counties attributed more than 2.5 percent of their arrests to marijuana enforcement.  Not a single county in California, which legalized the drug in 2016, met that threshold. Alabama and Kentucky — which are not known for liberal marijuana policies — also appeared to place a low priority on marijuana possession enforcement.

The data shows that Dooley County, Ga., has the highest rate of marijuana arrests in the nation. Out of 422 total arrests in 2016, 230, or 54.5 percent, were for marijuana possession.  The next highest was Hamilton County in New York’s Adirondack Mountains, where 43.5 percent of the 130 arrests logged in 2016 targeted marijuana offenders. That’s followed by Sterling (42.1) and Hartley (42.0) counties in Texas, with South Dakota’s Edmunds County (33.3 percent) rounding out the top five.

While these counties are all small and rural, some larger counties in and around big cities also reported unusually high arrest rates. In Chesapeake, Va., (population 233,000), for instance, 23 percent of its nearly 3,600 arrests were for marijuana possession. In Maryland’s Montgomery County (population 1 million), just outside of Washington, D.C., about 20 percent of its 24,000 arrests were for pot....

Another notable component of the study is what’s missing. Individual police agencies share arrest statistics with the FBI as part of its Uniform Crime Reporting Program.  But participation is voluntary, and different states use different systems to report crime and arrest data, which means that some jurisdictions have more complete coverage than others.  The map above omits all jurisdictions where the reporting rate is less than 90 percent, which eliminates large parts of some states and removes others, like Illinois and Florida, completely.

Not all marijuana arrests lead to convictions or prison time. But an arrest can be highly disruptive in and of itself: Legal fees, bail and bond costs, time lost from work and the potential for pretrial detention can take a heavy toll on arrested individuals.  In a number of cases, suspects have been inadvertently or deliberately killed while in police custody for possessing small quantities of pot.  In one recent high-profile case, a Pennsylvania man was crushed by a bulldozer as he fled from police attempting to apprehend him over 10 marijuana plants — a quantity that is legal in other parts of the country.

Cross-posted at Marijuana Law, Policy and Reform.

"Death by Stereotype: Race, Ethnicity, and California’s Failure to Implement Furman’s Narrowing Requirement"

The title of this post is the title of this new empirical article now available via SSRN and co-authored by an especially impressive list of folks: Catherine M. Grosso, Jeffrey Fagan, Michael Laurence, David C. Baldus, George G. Woodworth and Richard Newell.  Here is its abstract:

The influence of race on the administration of capital punishment in the United States had a major role in the United States Supreme Court’s 1972 decision in Furman v. Georgia to invalidate death penalty statutes across the United States.  To avoid discriminatory and capricious application of capital punishment, the Supreme Court held that the Eighth Amendment requires legislatures to narrow the scope of capital offenses and ensure that only the most severe crimes are subjected to the ultimate punishment.  This Article demonstrates the racial and ethnic dimension of California’s failure to implement this narrowing requirement.

Our analysis uses a sample of 1,900 cases drawn from 27,453 California convictions for first-degree murder, second-degree murder, and voluntary manslaughter with offense dates between January 1978 and June 2002.  Contrary to the teachings of Furman, we found that several of California’s “special circumstances” target capital eligibility disparately based on the race or ethnicity of the defendant.  In so doing, the statute appears to codify rather than ameliorate the harmful racial stereotypes that are endemic to our criminal justice system.  The instantiation of racial and ethnic stereotypes into death-eligibility raises the specter of discriminatory intent in the design of California’s statute, with implications for constitutional regulation of capital punishment.

Lots of good diverse weekend criminal justice reads

I have already spent a very large number of hours this weekend watching sports (congrats Tiger and Let's Go Jackets), and I still have lots more sports (deGrom and Alonso are on my fantasy team) and a series premier still to watch tonight.  But amidst all the nice distractions (and finally some nice weekend weather in central Ohio), I was able to catch up with some notable recent criminal justice commentary from an array of notably diverse sources.  Each of these linked pieces merit their own blog post, but a busy weekend requires just this round-up:

• Via The Crime Report by TCR Staff, "Does College Education in Prison Work? Ask the 8,800 Inmates Who Got Pell Grants"

• Via The Marshall Project by Nicole Lewis, "Can Better Data Fix Florida’s Prisons? A landmark law lets the state track people through the justice system. But that’s tougher than it sounds."

• Via The New York Times by David Lat, "How Tough-on-Crime Prosecutors Contribute to Mass Incarceration"

• Via USA Today by Amy Bach, "Criminal justice reform is great. But where's the data to show us whether it's working?"

• Via The Volokh Conspiracy by Will Baude, "Death and the Shadow Docket: The Supreme Court's efforts to shift procedures in death penalty litigation."

Noting a notable federal prisoner now benefiting from the FIRST STEP Act's elderly offender home confinement program

The New York Times has this notable new article focused on one notable federal offender now benefiting from the FIRST STEP Act.  The headline of the piece indirectly reveals some of its themes: "He Committed a $300 Million Fraud, but Left Prison Under Trump’s Justice Overhaul."  Here are some excerpts from the piece:

Three weeks ago, a 69-year-old man convicted of bank fraud quietly left a federal prison camp in Cumberland, Md., and moved into a friend’s one-bedroom apartment in Manhattan. He was one of the early inmates to benefit from a criminal justice bill signed into law by President Trump.  The law, the First Step Act, offered prisoner rehabilitation programs and overhauled sentencing policies that supporters claimed had a disproportionate effect on poor defendants, especially minorities.

But one person who benefited from the law was Hassan Nemazee, the prisoner at Cumberland, who was once an investor of enormous wealth and who donated heavily to Democratic political causes.  He was a national finance chairman for Hillary Clinton’s 2008 presidential campaign and later raised hundreds of thousands of dollars for Barack Obama’s first presidential contest.

Mr. Nemazee, who is serving the rest of his sentence in home confinement, acknowledged in interviews that he was not a fan of Mr. Trump, but he felt personally indebted to the president and his aides for pushing through “the most significant prison reform legislation in a generation.”...

Mr. Trump said recently at the White House that “unfair sentencing rules were contributing to the cycle of poverty and crime,” and since the First Step Act’s passage, more than 500 people with “unfair sentences have been released from prison and are free to begin a new life.”  But Mr. Nemazee left prison under a less publicized part of the bill that allows certain offenders who are over 60 and not considered a threat to others to be released into home confinement if they have completed two-thirds of their sentence.

In home confinement, Mr. Nemazee does not wear an ankle bracelet, but officials may call him on a landline late at night or early in the morning to verify he is at home. He may be summoned for a urine test at any time and must submit his weekly schedule for approval, he said.  Still, it feels a lot like freedom.  He may leave his apartment to go to work, the gym, religious services or appointments with his doctors and lawyers. He may also go out to lunch, “which is always a treat, given where I have been the last eight and a half years.”...

The Bureau of Prisons has said that since the bill’s passage, 10 prisoners — of 23 thus far deemed eligible — have been released into home confinement. The bureau would not identify the prisoners or comment on their cases.  Another is reported to be a white-collar criminal named Herman Jacobowitz, 60, who pleaded guilty in Brooklyn in 2005 in another large fraud case and was sentenced to 15 years, according to court papers and a lawyer familiar with the case. Mr. Jacobowitz could not be reached for comment.

Some of many prior related posts on FIRST STEP Act implementation:

• Might the US Sentencing Commission provide some real-time updates on the implementation of the FIRST STEP Act? 
• FAMM sends letter to BOP and DOJ to urge full implementation of key provisions of the FIRST STEP Act
• "3 more steps to make 'First Step Act' work"
• Might White House provide "impact data" on FIRST STEP Act as Prez Trump celebrates the law next week? 
• "Trump Celebrates Criminal Justice Overhaul, but His Budget Barely Funds It" 
• Encouraging news and inspiring notes as White House celebrates FIRST STEP Act
• "Department of Justice Announces First Step Act Implementation Progress"
• A few comments on implementing the FIRST STEP Act in written testimony from AG William Barr 

"Introducing Disruptive Technology to Criminal Sanctions: Punishment by Computer Monitoring to Enhance Sentencing Fairness and Efficiency"

The title of this post is the title of this paper recently posted to SSRN authored by Mirko Bagaric, Dan Hunter and Colin Loberg.  Here is its abstract:

The United States criminal justice system is the most punitive on earth.  The total correctional population is nearly seven million, equating to a staggering one in thirty-eight adults.  Most of the correctional population comprises offenders who are on parole or probation.  The financial burden this imposes on the community is prohibitive.  Further, a high portion of offenders who are on parole or probation offend during the period of the sanction.  This Article proposes an overdue solution to the crisis which exists in relation to the imposition of criminal sanctions.  The solution is especially timely given that there is now a considerable consensus emerging among lawmakers and the wider community that reforms need to be implemented to reduce the cost of criminal sanctions and improve their effectiveness.  Moreover, the United States Sentencing Commission has recently proposed an amendment to increase the availability of sentences which are alternatives to incarceration. 

With little hint of exaggeration, the sentencing system remains in a primitive state when it comes to adopting technological advances.  This Article seeks to address this failing as a means of overcoming the main shortcomings of current common criminal sanctions.  Forty years ago, it was suggested that the most effective way to deal with crime was to assign a police officer to watch over the every move of each offender.  The proposal was dubbed “cop-a-con”.  This would nearly guarantee that offenders did not re-offend, while eliminating the adverse consequences of prison.  This proposal was manifestly unviable due to its excessive costs.  Technological advances now make the concept achievable in a cost-effective manner.

It is now possible to monitor the locations and actions of individuals in live time and to detect crime as it is in the process of being committed.  Adapted properly to the criminal justice system, technology has the potential to totally reshape the nature and efficacy of criminal sanctions.  The sanctions which are currently utilized to deal with the most serious offenders, namely imprisonment, probation and parole can be replaced with technological monitoring which can more efficiently, effectively and humanely achieve the appropriate objectives of sentencing.  Technological disruption in the criminal justice sector is not only desirable, it is imperative.  Financial pressures and normative principles mandate that the United States can no longer remain the world’s most punitive nation.  The sanction suggested in the Article (“the monitoring sanction”) has the potential to more efficiently and economically impose proportionate punishment than current probation and parole systems, while enhancing public safety.