Sentencing Law and Policy

US Sentencing Commission issues new report on "Recidivism of Federal Firearms Offenders Released in 2010"

The US Sentencing Commission has this week published some new findings from its big eight-year recidivism study of 32,000+ offenders released in 2010.  This new 98-page report is titled "Recidivism of Federal Firearms Offenders Released in 2010," and this USSC webpage provides this overview with key findings:

Overview

(Published November 30, 2021) This report is the second in a series continuing the Commission’s research of the recidivism of federal offenders. It provides an overview of the recidivism of federal firearms offenders released from incarceration or sentenced to a term of probation in 2010, combining data regularly collected by the Commission with data compiled from criminal history records from the Federal Bureau of Investigation (FBI). This report provides an overview of recidivism for these offenders and information on key offender and offense characteristics related to recidivism. This report also compares recidivism outcomes for federal firearms offenders released in 2010 to firearms offenders released in 2005. In the future, the Commission will release additional publications discussing specific topics concerning recidivism of federal offenders.

The final study group of 5,659 firearms offenders satisfied the following criteria:

• United States citizens
• Re-entered the community during 2010 after discharging their sentence of incarceration or by commencing a term of probation in 2010
• Not reported dead, escaped, or detained
• Have valid FBI numbers that could be located in criminal history repositories (in at least one state, the District of Columbia, or federal records)
• Sentenced under §2K2.1, sentenced as armed career criminals or career offenders, or convicted under 18 U.S.C. § 924(c)

Key Findings

• This study observed substantial consistency in the recidivism of firearms offenders across the two time periods, 2005 and 2010, despite two intervening major developments in the federal criminal justice system: the Supreme Court’s decision in Booker and increased use of evidence-based practices in federal supervision.
• Firearms offenders recidivated at a higher rate than all other offenders.  Over two-thirds (69.0%) of firearms offenders were rearrested for a new crime during the eight-year follow-up period compared to less than half of all other offenders (45.1%).
• Firearms offenders and all other offenders who recidivated were rearrested for similar crimes. Of the firearms offenders who recidivated, assault was the most serious new charge for 25.9 percent of offenders followed by drug trafficking (11.0%). Similarly, of the all other offenders who recidivated, assault was the most common new charge (19.0%) followed by drug trafficking (11.4%).
• Firearms offenders have higher recidivism rates than all other offenders in every Criminal History Category (CHC). Within most CHCs, this difference was about ten percentage points.
  • In CHC I, 39.7 percent of firearms offenders recidivated compared to 29.6 percent of all other offenders.
  • In CHC VI, 82.8 percent of firearms offenders recidivated compared to 72.9 percent of all other offenders.
• Firearms offenders recidivated at a higher rate than all other offenders in every age-at-release grouping. Firearms offenders recidivated at over twice the rate of all other offenders among those released after age 59 (31.1% compared to 14.5%).
• The recidivism rates for firearms and all other offenders were highly similar for both the 2010 release cohort in this report and the 2005 release cohort previously studied. In the 2005 release cohort, 68.1 percent of firearms offenders recidivated compared to 46.3 percent of all other offenders. Similarly, 69.0 percent of firearms offenders in the 2010 release cohort recidivated compared to 45.1 percent of all other offenders.

Calling out SCOTUS for failing to take up circuit splits over the federal sentencing guidelines

In this post last month, I noted this notable new paper by Dawinder Sidhu titled "Sentencing Guidelines Abstention," which astutely assails the US Supreme Court for its "refusal to review [circuit] splits involving federal sentencing policy."  I am now pleased to see Dawinder putting forward his important points in this new HIll commentary headlined "The Supreme Court's criminal justice blind spot."  I recommend the full piece and here are excerpts:

A primary role of the Supreme Court is to resolve differences among the federal appeals courts when those courts reach different conclusions on the same questions of law.  But for 30 years, the Supreme Court has refused to perform this essential role when the disagreements concern federal sentencing guidelines.  The court’s inaction has allowed uncertainty and disparities to fester in this critical area of criminal justice....

In [a] 1991 opinion, the court ... added extraneous language [in an early case address a conflict over a guideline that the US Sentencing Commission was in the process of amending], writing that because the commission possessed authority to amend the guidelines in response to interpretive conflicts, the court should be “more restrained and circumspect in … resolving such conflicts.”

Because this language was unnecessary to the disposition of the case, it should have no precedential weight.   At most, this case supports the unremarkable proposition that, when the commission’s amendment process is under way regarding a guideline that triggers a judicial conflict, the court should exercise restraint and allow the commission to complete its amendment process.  The court regularly abstains from interfering with parallel administrative or state proceedings.  Deferring to the commission during the course of a simultaneous amendment process would be consistent with this respect for alternative decisional bodies.

The problem, however, is that the court has refused to hear all guideline conflicts, not just those the commission is actively addressing.  In adopting this broad position, the court has ceded its role of ironing out judicial conflicts to the commission.  As then-Judge Samuel Alito recognized [in this FSR article], “No other federal agency — in any branch — has ever performed a role anything like it.”  Indeed, the court does not forgo consideration of a case when Congress or an administrative agency may one day amend a statute or regulation producing a conflict.

This anomaly has real-life consequences.  This year, Justices Neil Gorsuch and Sonia Sotomayor believed that the court should not hear a sentencing guidelines case, notwithstanding the fact that it raised an “important and longstanding split” among the federal appeals courts. They reasoned that the commission should “address the issue in the first instance.”  But the justices conceded that until the commission resolves the split, “similarly situated defendants may receive substantially different sentences depending on the jurisdiction in which they are sentenced,” with the disparities ranging by a factor of “years” and spanning from a “fixed-term” to a “life sentence.”

This knowingly perpetuated uncertainty and disparity in the federal courts.  To make matters worse, the court did so knowing that the commission has been without a quorum for almost three years. As such, the court punted a conflict to an agency incapable of amending the guidelines or resolving conflicts.  This isn’t the first time the commission has lacked a quorum for a significant period.  Even when the commission is fully functional, it only has the capacity to take on some of the conflicts that exist.  This is not to disparage the commission but to call into question the Supreme Court’s hoisting the responsibility of addressing guideline conflicts onto the shoulders of a regularly shorthanded commission.

Anyone interested in coherence and consistency in criminal justice should be troubled by the court’s refusal to review conflicts involving the federal sentencing guidelines.  It is one thing to be discerning in case selection; it is another to step aside altogether from guideline cases that implicate the fair and uniform administration of justice.

ACLU sues Biden Administration for data on CARES home confinement cohort

This ACLU press release reports on a notable new lawsuit: "The American Civil Liberties Union and ACLU of the District of Columbia today filed a lawsuit against the Department of Justice and the federal Bureau of Prisons under the Freedom of Information Act, seeking information about the federal government’s potential plan to force people placed on home confinement under the CARES Act back to prison after the pandemic subsides, even if they have followed all requirements of home confinement, been reunited with their families, and successfully reintegrated into society."  Here is more:  

Recognizing the dangers of COVID spread in federal prisons, Congress provided, as part of the March 2020 Coronavirus Aid, Relief, and Economic Security (CARES) Act, that the Bureau of Prisons (BOP) could place incarcerated people in home confinement as a way of reducing the population of crowded prisons and mitigating the virus’ spread.  As a result, BOP has placed more than 34,000 people — including many elderly or medically vulnerable — on home confinement since March 2020.  BOP evaluated every single person and determined that none of them would pose a threat to public safety while on home confinement. While most have now completed their sentences, 7,769 are on home confinement currently. Many have found gainful employment and have reunited with spouses, children, and other loved ones.

In June 2020, the BOP director and medical director testified in the Senate that people released under the CARES Act would be on home confinement “for service of the remainder of their sentences.”  But in the last days of the Trump administration, the Justice Department’s Office of Legal Counsel (OLC) issued a memorandum saying that when the pandemic ends, people on home confinement must be ordered back to prison unless they are in the final months of their sentences, even if they have been completely law-abiding.  Such an order would disrupt their lives and the lives of their loved ones and would destroy the successful efforts they have made to reintegrate into society.

The BOP has not disclosed how many of the 7,769 people currently on home confinement may be forced back to prison. Although the Biden administration has said that the president will consider granting clemency to a subset of this group so that they will not be sent back to prison, he has not yet granted any such petitions.  The ACLU has repeatedly called on President Biden to grant clemency to everyone who is on home confinement under CARES and following the rules.

Under the Freedom of Information Act, the ACLU requested records providing information about people BOP moved to home confinement under the CARES Act. The ACLU also asked for any final DOJ and BOP policies implementing the OLC memorandum.  The government failed to provide the materials by the deadline.  Our lawsuit, filed today in federal court in the District of Columbia by the ACLU and the ACLU of the District of Columbia, asks the court to enforce the law against the Justice Department and the BOP and order them to immediately produce the requested records.

The full complaint is available here. 

El Chapo's wife sentenced to three years in federal prison (guidelines be damned)

This Vice article provides a thorough accounting of a notable federal sentencing with this rousing start: "Sinaloa Cartel leader Joaquín “El Chapo” Guzmán Loera became infamous for daring jailbreaks in Mexico only to end up serving life in prison in the United States. Now his wife, Emma Coronel Aispuro, has managed to avoid a similar fate."  Here is more from the piece: 

The 32-year-old Coronel was sentenced Tuesday to just three years in prison after pleading guilty earlier this year to charges that she helped her husband run his drug trafficking empire, facilitated one of his prison escapes in Mexico, and violated U.S. sanctions by spending his illicit fortune. She also paid nearly $1.5 million to the U.S. government.

It could have ended much worse for Coronel, who faced up to 14 years for her crimes under federal sentencing guidelines.  Federal prosecutors in Washington, D.C., asked her judge for leniency, calling for her to serve just four years behind bars and fueling speculation that she’d struck a deal to cooperate.

Coronel’s attorneys and federal prosecutors made the case to sentencing Judge Rudolph Contreras that she only played a minimal role in the cartel and that her crimes were committed simply because she was married to El Chapo. “The defendant was not an organizer, leader, boss, or other type of manager,” prosecutor Anthony Nardozzi said. “Rather, she was a cog in a very large wheel of a criminal organization.”

A soft-spoken Coronel addressed the court in Spanish before the judge handed down the sentence, asking for forgiveness and making a plea for leniency so that she could be free to raise her 10-year-old twin daughters, who were fathered by El Chapo....

The light sentence has raised eyebrows among ex-prosecutors who handled similar cases against high-level drug traffickers and their associates.  “Downward departure,” or a sentence below the range called for by federal guidelines, is typically reserved for individuals who agree to assist the government in some capacity, David Weinstein, a former assistant U.S. Attorney in Miami, told VICE News.  “They’re treating her like a cooperator,” said Weinstein, who now works as a defense attorney.  “These are the types of circumstances where people are involved in large-scale drug trafficking conspiracies and are benefiting the kingpin and helping the kingpin. You usually don’t get downward departure unless you’re providing substantial assistance.”

Coronel, who holds dual citizenship in the U.S. and Mexico, was taken into custody by FBI agents on Feb. 22 after arriving at Dulles International Airport near Washington, D.C.  While federal authorities announced that Coronel had been “arrested,” sources familiar with her case told VICE News she was aware of pending charges against her and came to turn herself in.

Coronel has been held since February at a jail in Alexandria, Virginia, and is now expected to be transferred into the federal prison system to serve out her sentence. She will receive credit for time served and could be released in just over two years.

If prosecutors truly believed Coronel had only played a minimal role and was merely El Chapo’s wife, it's unclear why she was even charged in the first place because her prosecution would be a waste of time and resources, according to Bonnie Klapper, a former federal prosecutor in the Eastern District of New York.  Klapper, now in private practice, said Coronel’s sentence “is a very clear demonstration of how prosecutors can manipulate the sentencing guidelines to either punish or reward a defendant.”...

In sentencing Coronel, Judge Contreras noted that putting her behind bars for a long time would do little to dissuade anyone else from joining the Sinaloa Cartel. In fact, he said, there was little indication that prosecuting El Chapo had any impact on the cartel’s operations.  “One can make a plausible argument that even the removal of Guzmán from the conspiracy has not resulted in a reduction of harm to the public,” the judge said. “There appears to be no shortage of replacements to fill the defendant’s slot in the organization.”

Contreras noted Coronel’s “impoverished” upbringing and the involvement of her family members in the drug trade, and indicated that he believed that she was a victim of her circumstances who was very young and impressionable when she married El Chapo. “I hope you raise your twins in a different environment than you’ve experienced to date,” Contreras said in his parting words to Coronel. “Good luck.”

This article is astute to note how this case highlights "manipulation" of the federal sentencing guidelines and sentencing outcomes. Indeed, the Government's sentencing memo in the case showcases how the guidelines can function more like a parlor game than as a steady guide to sensible sentencing.  According to that memo, Coronel's PSR initially "concluded that the Defendant’s applicable Guidelines range in this case was 135 months to 168 months ... [and] neither the Government nor the Defendant objected to this Guidelines calculation."  But, sometime thereafter, the Government decided "that Defendant’s applicable Guidelines range is 57 to 71 months in prison ... [and] Defendant and the Probation Office concur."

In other words, everyone in this case first determined that the guidelines recommended 11+ to 14 years in prison, but then later everyone decided the guidelines recommended less than half that length of time.  And then, guidelines be damned, the government decided to recommend a sentence of 48 months (nine months below the low end of the lower guideline range).  And then Judge Contreras decided that 36 months was a sufficient sentence. 

Of course, one might reasonably expect the guidelines to be a poor "fit" for this kind of unique case with its many unique elements.  But, then again, a quarter century ago in Koon v. US, 518 U.S. 81 (1996), the Supreme Court rightly made this closing observation: "It has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue."

"Prosecutorial Discretion, Justice, and Compassion: Reestablishing Balance in our Legal System"

The title of this post is the title of this new paper authored by Anna D. Vaynman and Mark Robert Fondacaro now available via SSRN. Here is its abstract:

The criminal justice system, wherein nearly all cases are resolved through a guilty plea, is tenuously balanced on prosecutorial discretion in the context of the plea-bargaining process.  This shift in the balance of power away from judges and juries is particularly troubling given the lack of formal legal safeguards afforded to defendants engaging in plea bargaining rather than going to trial.  The main issue is not prosecutorial discretion per se or even overzealous prosecutors, but the lack of oversight of the plea-bargaining process and the imbalance of power itself, which threatens the legitimacy and stability of the criminal justice system. 

This article argues for the importance of prosecutorial discretion as a potentially valuable tool, analyzes how and why it creates potential for abuse, and provides suggestions for recreating a balance of power.  Overall, the analysis shifts away from blaming the personal characteristics of overzealous prosecutors for the imbalance and focuses on systemic, forward looking administrative and legislative solutions aimed at taking plea bargaining out of the shadows.  The article concludes with specific suggestions for recreating a balance of power, by addressing issues arising from unequal access to information throughout the plea-bargaining process and recentering a defendant’s constitutional rights within the justice system.

Could a SCOTUS Second Amendment ruling undercut onerous and disparate criminal enforcement of gun prohibitions?

I noted in this post back in August, as part of a preview of the major pending SCOTUS Second Amendment case, New York State Rifle & Pistol Association Inc. v. Corlett, the considerable racial disparities in modern criminal enforcement of gun prohibitions.  Helping me to detail how actual gun control laws are actually enforced in federal and state criminal justice systems was this interesting amicus brief filed by the Black Attorneys of Legal Aid caucus and lots of NY public defender offices.  Notably, some of the themes of this amicus brief have been carried forward by its authors and others via an array of interesting commentary this fall (listed here in chronological order):

Via SCOTUSblog, "We are public defenders. New York’s gun laws eviscerate our clients’ Second Amendment rights."

Via Inquest, "Second Class: For public defenders in New York, representing clients unjustly criminalized for gun possession is a matter of principle.  Now, they have the Supreme Court’s attention."

Via The Nation, "There’s No Second Amendment on the South Side of Chicago: Why public defenders are standing with the New York State Rifle and Pistol Association in the Supreme Court."

Via Slate, "A Criminal Justice Reformer’s Case for Looser Gun Laws: Public defenders have found common cause with the NRA at the Supreme Court."

I recommend all these pieces, which have too many interesting elements to highlight in a single blog post.  I will just here flag a few quotes from the new Slate piece, which is an interview with Sharone Mitchell Jr., the public defender from Chicago who authored the piece in The Nation.  

Our offense is called UUW, unlawful use of a weapon.  And there are different types of UUWs.  But the lowest-level felony, the Class 4 felony, 33 percent of the charges statewide come from 11 communities in Chicago, 11 communities in the entire state.   You look at the UUW numbers, you look at how it’s used in Chicago and how it’s used outside of Chicago — and you would think that guns only exist in Chicago.  And you would think guns only exist in a small number of communities.  And that’s not correct.  In other areas of the state, that’s just not the way they approach that situation....

We have this assumption that making things a felony disallows people from performing that act.  And I just haven’t been convinced of that.  At this point in Chicago, folks are not waiting for the government to tell them that they can carry.  And I think too often we overestimate the power of the criminal justice system to solve problems or fix the things that we need.  I think people are living under the assumption that because you’ve got this very complicated scheme for getting licensed, that means people aren’t going to carry. I think what it means is that people aren’t going to carry legally....

If you look at the population of Illinois prisons, there are more people in prison for weapons possession than there are for robbery.  There are more people in prison for weapon possession than there is for kidnapping, more than arson or burglary or DUI or forgery or vehicle hijacking or retail theft.  This is really becoming kind of the new war on drugs, where there’s a real problem, but our solution to the problem doesn’t actually fix the problem.  In fact, it creates way more problems.

A few prior related posts:

• Spotlighting considerable racial disparities in modern criminal enforcement of gun prohibitions 
• Timely new Northwestern University Law Review issue examines Second Amendment from many perspectives 

"The population prevalence of solitary confinement"

Th title of this post is the title of this notable new research article in the new issue of the journal Science Advances and authored by Hannah Pullen-Blasnik, Jessica T. Simes and Bruce Western.  Here is its abstract:

Solitary confinement is a severe form of incarceration closely associated with long-lasting psychological harm and poor post-release outcomes.  Estimating the population prevalence, we find that 11% of all black men in Pennsylvania, born 1986 to 1989, were incarcerated in solitary confinement by age 32.  Reflecting large racial disparities, the population prevalence is only 3.4% for Latinos and 1.4% for white men.  About 9% of black men in the state cohort were held in solitary for more than 15 consecutive days, violating the United Nations standards for minimum treatment of incarcerated people.  Nearly 1 in 100 black men experienced solitary for a year or longer by age 32.  Racial disparities are similar for women, but rates are lower.  A decomposition shows that black men’s high risk of solitary confinement stems primarily from their high imprisonment rate.  Findings suggest that harsh conditions of U.S. incarceration have population-level effects on black men’s well-being.

Notable accounting of the "utter failure" of Massachusetts new expungement law

The Boston Globe has this great lengthy new piece about Massachusetts expungement practices headlined "‘An utter failure’: Law meant to clear old convictions, including for marijuana possession, helps few." I recommend the full piece, and here is how it starts:

When state legislators passed a criminal justice reform bill in 2018, Massachusetts residents won the ability to clear away certain criminal records — including convictions for marijuana possession and other now-legal activities — that can make it difficult to land a job, rent an apartment, and otherwise move on with life.

But three years later, only a fraction of those who are likely eligible for relief have had their records expunged. Massachusetts Probation Service data suggest that people who were previously arrested for, charged with, or convicted of a crime submitted just 2,186 petitions to expunge their records between January 2019 and July, of which 352 were eventually approved by state judges, or about 16 percent.  And of those 352, probation officials could definitively identify only 17 related to marijuana, a statistic they first began tracking (partially) in January.

While the state could not say exactly how many people are potentially eligible for expungements, advocates insist the pool runs into the tens of thousands.  For example, there were about 68,800 civil or criminal violations for marijuana possession issued in Massachusetts from 2000 through 2013, and 8,000-plus arrests for selling or possessing marijuana each year from 1995 to 2008, according to a Cannabis Control Commission research report and an ACLU analysis.  And cannabis charges are only one of a number of past incidents that can be wiped clean under the law after enough time has passed.

Critics attribute the low numbers of expungements to restrictive eligibility criteria, a lack of outreach to former defendants, disorganized state records, and a lengthy application process that ultimately gives judges wide latitude to reject even seemingly qualified requests with little explanation.

“Our expungement statute has been an utter failure,” said Katy Naples-Mitchell, an attorney at Harvard Law School’s Charles Hamilton Houston Institute for Race and Justice who specializes in criminal justice policies.  “We could be helping people on a much grander scale, but instead we’re seeing this paltry, piecemeal effort — and even that has been almost totally frustrated, in part by a bench that is often a lot less progressive than the legislation it’s charged with carrying out.”

The 2018 law bars the expungement of violent or sexual crimes, and practically any offense committed after the age of 21.  And, importantly, it prohibits anyone with more than one entry on their record from obtaining an expungement, unless the other offenses are motor vehicle violations that resulted in a fine of less than $50.  The only exceptions are special circumstances such as mistaken identity or conduct that is no longer illegal, as with marijuana, which together accounted for just 298 attempted petitions.

It also makes former defendants responsible for learning of the expungement program, determining their eligibility, tracking down the relevant records within the state’s patchwork of police and court filing systems, and submitting them along with a petition to the state probation department.  Probation officials reject the vast majority of expungement petitions they receive (around 79 percent) as ineligible under the law, suggesting there is widespread confusion among applicants about which charges can be cleared.

If an application is cleared by the probation department to go before a judge, the office of the district attorney who originally brought the charges is then given a chance to object.  And even when prosecutors endorse a petition, judges can still reject an expungement request on the grounds it would not be in the “best interests of justice.” Attorneys for former defendants say judges have used that clause to block dozens of otherwise eligible requests.

New issue of Contexts explores transforming the criminal justice system

The Fall 2021 issue of the journal Contexts includes a collections of article resulting from a conference examining how different elements of the American criminal justice system might be transformed.  Here is a selection from the editors' introduction along with links to a few pieces that might be of particular interest to sentencing fans:

One of the most striking developments in modern American history is the rise of mass incarceration. While more and more people have been put behind bars worldwide, sadly, America leads the way.  In this issue, we contribute to the ongoing discussion on mass incarceration and its impacts with a series of articles drawn from a recent conference jointly held by the Brookings Institution and the American Enterprise Institute.  This collection of articles will address different elements of the American criminal justice system and ask, is there a way forward?...

The articles from this conference ask a wide range of questions that demand good answers. First, how can we disentangle policing from other social services and public safety more broadly?  Second, how can we help imprisoned people transition from jails to the broader society?  Third, how can we use recent Alisha Kirchoff research on desistance, for example, to understand how people can safely become part of the wider community?

Features

Reimagining Pretrial & Sentencing by Pamela K. Lattimore, Cassia Spohn, Matthew Demichele

Changing Prisons to Help People Change by Christy Visher, John M. Eason

Fostering Desistance by Shawn Bushway, Christopher Uggen

Rethinking Prisoner Reentry by Annelies Goger, David J. Harding, Howard Henderson

"A New Generation of Prosecutors Is Leading the Charge to Reimagine Public Safety"

The title of this post is the title of this notable recent report from Data for Progress authored by Prerna Jagadeesh, Isa Alomran, Lew Blank and Gustavo Sanchez. Here is part of its introductions:

Local prosecutors possess unparalleled power within criminal legal systems across the country.  Also commonly referred to as District Attorneys, State’s Attorneys, Commonwealth Attorneys and County Attorneys, local prosecutors are responsible for the vast majority of criminal cases brought in the United States.  They have nearly unlimited discretion in deciding who to charge, the type of crimes to charge, and the severity of punishment at sentencing.  They are also primarily responsible for determining who stays in jail and who can be released back to their communities while awaiting trial, and they wield unmatched influence in determining the kind of criminal laws and penalties enacted by state legislatures.

Over the past five decades, prosecutors have deployed their power to charge and sentence even more people, relying heavily on incarceration or correctional supervision to control and punish people convicted of crimes.  While public safety was the purported justification for this approach, a growing body of research is finding that incarceration is ineffective at deterring crime and fails to prevent violent crime in the long-term.  Meanwhile, it has generated devastating consequences for many communities — particularly communities of color — in both direct and indirect ways. Mass incarceration has destabilized communities, worsened outcomes for children with incarcerated parents, increased morbidity and mortality, perpetuated generational wealth gaps, exacerbated mental illness among those incarcerated, and increased homelessness, alongside many other collateral consequences. ...

Notably, the prosecute-and-convict approach has also neglected the interests of those who have experienced and survived crime.  According to a groundbreaking survey of crime survivors conducted by the Alliance for Safety and Justice, the vast majority of victims –– who are more likely to be low-income, young, people of color –– prefer solutions that focus on alternatives to incarceration, such as job creation, crime prevention, rehabilitation, drug use and mental health treatment, among others.  In particular, seven out of ten would rather see prosecutors invest in solving neighborhood problems through rehabilitation, not prosecution and incarceration.

As a result, a growing number of prosecutors have begun to reimagine public safety in ways that reduce the use of prosecution and incarceration, create more effective and less destructive accountability strategies, end racial disparities, and address the drivers of criminal behavior as well as the needs of those most impacted by crime....

In the summer of 2021, Data for Progress surveyed 19 of these reform-minded prosecutors to identify their approaches to community safety, key policy changes, goals for the future, and obstacles impeding their efforts to achieve transformational change.  Their responses are detailed more fully below.

Pervis Payne has death sentences set aside (based on intellectual disability) three decades after SCOTUS affirmed them (with focus on victim impact evidence)

This local article reports on a notable development in a capital case that caught my attention because it involves a defendant who was involved in a major development in Supreme Court capital jurisprudence more than 30 years ago.  The press piece is headlined "Pervis Payne death penalty set aside, judge will decide if life sentences are concurrent or consecutive," and here are excerpts:

Rolanda Holman remembers being 13 years old, listening to the judge sentence her brother, Pervis Payne, to death by the electric chair. The judge said, “May God have mercy on his soul," Holman recalled.

Thirty-four years later, Holman and her family know that Payne won't be dying by the death penalty after Judge Paula Skahan signed an order Tuesday vacating his capital sentence....

Skahan's action came after the Shelby County District Attorney's office announced Thursday that it was dropping its pursuit of the death penalty against Payne after a state expert examined Payne and records "and could not say that Payne's intellectual functioning is outside the range for intellectual disability," according to a news release.

Both the U.S. and Tennessee supreme courts have ruled that it is unconstitutional to execute someone with an intellectual disability. In April, Tennessee legislators created a law allowing death row inmates like Payne to appeal their sentences on intellectual disability grounds. Since the court finds that Payne is a person with intellectual disability, his capital sentence must be vacated, Skahan wrote in her order....

Payne will serve two life sentences in prison for the murders of Charisse and Lacie Christopher. However, whether those sentences will be concurrent or consecutive is currently being debated.

Steve Jones, assistant district attorney, argued Tuesday that a transcript of the original sentencing 34 years ago shows the judge saying that Payne's sentences ought to be served consecutively.

That, [attorney Kelley] Henry said, would make Payne ineligible for parole until he is 85. Henry argued, however, that precedent shows the court has the discretion to rule his sentences should be carried out at the same time, which would make him eligible for parole in about six years. “Consecutive sentencing would be an effective life without parole for Mr. Payne and we suggest that would not be justice for him and his family," Henry said. "Elder Carl Payne deserves a chance to hug his son as a free man. And we will continue our fight to exonerate Mr. Payne.”

A hearing will be held Dec. 13 to determine whether the life sentences should be held consecutively or concurrently.

Payne, who is being held in Riverbend Maximum Security Institution in Nashville, is convicted of the 1987 deaths of Millington woman Charisse Christopher, 28, and her 2-year-old daughter, Lacie. Christopher’s 3-year-old son, Nicholas, survived multiple stab wounds in the brutal attack that took place in Christopher’s apartment.

Payne has maintained his innocence. In his 1988 trial, Payne said that he discovered the gruesome crime scene after hearing calls for help through the open door of the apartment. He said he bent down to try to help, getting blood on his clothes and pulling at the knife still lodged in Christopher's throat. When a white police officer arrived, Payne, who is Black, said he panicked and ran, fearing he would be seen as the prime suspect.

It is quite remarkable that it took newly 20 years for Payne to be moved off death row after the US Supreme Court ruled in Atkins v. Virginia, 536 U.S. 304 (2002), that the Eighth Amendment precluded the execution of the intellectually disabled.  But it is perhaps even more remarkable that this is the same defendant whose case made it all the way to the Supreme Court more than 30 years ago. In Payne v. Tennessee, 501 U.S. 808 (1991), the Supreme Court reversed prior precedents limiting victim impact evidence and held "that, if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar."  Is this a fitting time for the aphorism "what goes around comes around," especially if it is a capital case?

Sentencing basics for defendants convicted of murdering Ahmaud Arbery

This afternoon brought a jury verdict in the closely watched case involving three men accused of murdering Ahmaud Arbery.  This AP story provides the context and the sentencing possibilities and other particulars now to follow:

A nine-count indictment charged all three men with one count of malice murder, four counts of felony murder, two counts of aggravated assault, one count of false imprisonment and one count of criminal attempt to commit a felony, in this case false imprisonment.

Travis McMichael was convicted of all nine charges. Greg McMichael was convicted of all charges except malice murder.  [William] Bryan was convicted of two counts of felony murder, one count of aggravated assault, one count of false imprisonment and one count of criminal attempt to commit a felony.

Malice and felony murder convictions both carry a minimum penalty of life in prison. The judge decides whether that comes with or without the possibility of parole.  Even if the possibility of parole is granted, a person convicted of murder must serve 30 years before becoming eligible. Multiple murder convictions are merged for the purposes of sentencing.

Murder can also be punishable by death in Georgia if the killing meets certain criteria and the prosecutor chooses to seek the death penalty.  Prosecutors in this case did not.

Each count of aggravated assault carries a prison term of at least one year but not more than 20 years. False imprisonment is punishable by a sentence of one to 10 years in prison....

The McMichaels and Bryan still face federal charges. Months before the three stood trial on state murder charges, a federal grand jury in April indicted them on hate crimes charges.  It’s an entirely separate case that’s not affected by the state trial’s outcome.

U.S. District Court Judge Lisa Godbey Wood has scheduled jury selection in the federal trial to start Feb. 7.  All three men are charged with one count of interference with civil rights and attempted kidnapping.  The McMichaels were also charged with using, carrying and brandishing a firearm during a crime of violence.  The federal indictment says the men targeted Arbery because he was Black.

Notable new news reports about declining prison populations in two "New" states

I was intrigued to see two new local new reports about significant prison population declines in two states.  Here are headlined, links and excerpts (with links from the originals):

"NJ Cut Its Prison Population By 40% During 11 Months Of the Pandemic":

As the coronavirus swept through New Jersey’s prison system last year, killing inmates at the highest rate in the nation for months, state leaders took an unprecedented step: They slashed the prison population by 40%.

“No other state has been able to accomplish what New Jersey has accomplished,” said Amol Sinha, executive director of the American Civil Liberties Union of New Jersey, “making it the nation's leading de-carcerator and I think that's a badge that we should wear with honor.”

In October 2020, Governor Phil Murphy signed a law that allowed those within a year of release to get out up to eight months early. The first-in-the-nation measure ultimately freed nearly 5,300 adults and juveniles from state custody over the last 11 months.

“New Jersey's prison population plummeted under the law, reaching a level that it had not been in for decades and creating a much more manageable … population for the correction system,” said Todd Clear, a university professor at Rutgers who specializes in criminal justice.   He said the prison census dropped to numbers not seen since the 1980s. “New Jersey was the most aggressive [state] and it was the most expansive across the largest proportion of the population,” Clear said.

"Why is New Mexico’s prison population on the decline?"

There’s been a “dramatic” decline in the state’s prison population from summer of 2020 to summer of 2021, according to the New Mexico Sentencing Commission (NMSC). In early November, the commission, which evaluates policies related to the criminal justice system, told state legislators that the recent declines in part are likely due to ongoing criminal justice reform, increased prison diversion programs, and changes in how criminals are sentenced.

The COVID-19 pandemic is also thought to have played a role, as jury trials were suspended and the Department of Corrections worked to find elderly and at-risk prisoners who were eligible for early release, according to the NMSC. However, the decline in prison population began even before the pandemic.

For the first time in the last 10 years, the peak male prison population — the maximum number in prison in a fiscal year — has dropped below 6,000 prisoners. And the peak female prison population has dropped by a total of 24% over the last two fiscal years to 607 prisoners in 2021, according to data from the NMSC.

“Some of the decline may be attributable to a decrease in prosecutions during the pandemic,” Linda Freeman, the executive director at NMSC, told the legislature. As a result, the NMSC predicts a slight increase in prison populations in the coming years, as the effects of COVID-19 wane.

Bureau of Justice Statistics releases "Federal Prisoner Statistics Collected under the First Step Act, 2021"

I was excited to receive new of this new Bureau of Justice Statistics' publication with lots of rich new data about the federal prisoner population.  This website provides this overview and a few key findings from "Federal Prisoner Statistics Collected under the First Step Act, 2021":

Description

This is the third report as required under the First Step Act of 2018 (FSA; P.L. 115-391). It includes data on federal prisoners provided to BJS by the Federal Bureau of Prisons (BOP) for calendar year 2020. Under the FSA, BJS is required to report on selected characteristics of persons in prison, including marital, veteran, citizenship, and English-speaking status; education levels; medical conditions; and participation in treatment programs. Also, BJS is required to report facility-level statistics, such as the number of assaults on staff by prisoners, prisoners’ violations of rules that resulted in time credit reductions, and selected facility characteristics related to accreditation, on-site health care, remote learning, video conferencing, and costs of prisoners’ phone calls.

Highlights

• The federal prison population decreased 13%, from 174,391 at yearend 2019 to 151,283 at yearend 2020.
• In 2020, a total of 91 pregnant females were held in BOP-operated prison facilities, which was half the number held in 2019 (180).
• In 2020, a total of 14,791 persons held in federal prison participated in a nonresidential drug abuse program, 10,868 in a residential drug abuse program, and 1,268 in a treatment challenge program for a substance use disorder.
• In 2020, a total of 418 federal prisoners received medication-assisted treatment (approved by the U.S. Food and Drug Administration) to treat a substance use disorder.

The full document has a lot more interesting highlights, including these notable data points about the work of the federal risk assessment tool used by BOP known as PATTERN:

• Of those persons in federal prison assessed with PATTERN as of December 31 2020, 37% were considered to be at high risk for recidivism, 18% medium risk, 29% low risk, and 16% minimal risk.
• In 2020, PATTERN found that about half of federal prisoners age 24 or younger (51%) and those ages 25 to 34 (50%) were at high risk of future recidivism.
• Fifty-one percent of black prisoners (including those of both Hispanic and non-Hispanic ethnicity) in federal prison were deemed at high risk for future recidivism by the PATTERN tool, followed by more than 42% of American Indian or Alaska Native prisoners.

Lots of timely new content and commentary at The Crime Report

I am hopeful (though nor especially optimistic) that I will get a chance to catch up on some reading during the coming holiday weekend.  To that end, I just realized I am behind on flagging a lot of great new content at The Crime Report, and here is just a sample of what is worth catching up on at that site: 

"The Danger of a Return to Crime Alarmism" by James Austin, Todd Clear, Richard Rosenfeld, and Joel Wallman

"Can We Build an ‘Infrastructure’ for Violence Prevention?" by Greg Berman

"America Can Afford Decent Corrections Systems. Why Aren’t We Getting Them?" by Rory Fleming

"Rethinking the ‘Sex Offender’ Label" by Derek Logue

"North Carolina’s ‘Geriatric Death Row’" by TCR Staff

Bipartisan call from members of Congress for Prez Biden to make US Sentencing Commission nominations

Regular reader who recall my regular advocacy for Prez Biden to make nominations to the now-dormant US Sentencing Commission will know that this new Reuters story made me smile:

Two Democratic and Republican lawmakers in a letter on Monday urged President Joe Biden to prioritize filling vacancies that have left the U.S. Sentencing Commission without a quorum, saying the situation has stalled criminal justice reform.

U.S. Representatives Kelly Armstrong, Republican of North Dakota, and Jamie Raskin, Democrat of Maryland, said the vacancies have "forestalled the important work of updating and establishing new sentencing guidelines."

A White House spokesperson had no immediate comment.

The commission lost its quorum in January 2019, a month after former Republican President Donald Trump signed into law the First Step Act, bipartisan legislation aimed at easing harsh sentencing for non-violent offenders and at reducing recidivism.

Armstrong and Raskin said the lack of quorum also meant the commission cannot update the advisory sentencing guidelines needed to help implement the law, resulting potentially in its uneven application by judges across the country. "It is imperative that the vacancies are expeditiously filled so the Commission can continue its work to improve the federal criminal justice system," the lawmakers wrote.

The seven-person panel's lone remaining member, Senior U.S. District Judge Charles Breyer, told Reuters this month he would be "surprised and dismayed" if Biden did not pick nominees by early 2022 and urged him to help restore its quorum.  Breyer's own term expired on Oct. 31 but he can remain on the commission for up to a year more unless a replacement is confirmed.  Armstrong and Raskin cited his potential departure as another reason to act.

The full letter can be found here.  I am ever hopeful that we will finally get nominations from Prez Biden no later than early 2022, though that will still be a year later than would have been ideal.  And I sincerely hope the Biden Administration will work effectively with Senate leaders to ensure his eventual nominees get a swift confirmation.  But even if this process gets going, it now seems unlikely a full USSC will be functioning before the May 1, 2022 deadline for the 2022 guideline amendment cycle, and so November 2023 could end up the earliest date for any guideline changes to become effective.

A few of many prior recent related posts:

• Any guesses for when we might again have a fully functioning US Sentencing Commission? 
• New commentary calling for Prez Biden to revive the US Sentencing Commission
• Might we be getting closer to (needed) new nominees for the "frozen" US Sentencing Commission? 
• Getting antsy for US Sentencing Commission appointments after another slate of impressive judicial nominees from Prez Biden
• Timely reminder of US Sentencing Commission's decarceral potential ... when it is functional 
• When might we expect appointments to a new — a truly new — US Sentencing Commission? 
• When might we expect advocacy groups to push Prez Biden make needed appointments to the US Sentencing Commission? 
• Should I give up hoping Prez Biden will soon make long needed nominations to US Sentencing Commission? 

California's Committee on Revision of the Penal Code recommends abolishing capital punishment in the state

During a busy week last week, I missed this notable capital news from California: "Panel recommends repealing death penalty in California: The recommendation to end capital punishment comes after California voters rejected two ballot measures to abolish executions over the last decade and voted to speed up executions in 2016."  Here are the basics from the start of the news story:

As nearly 700 condemned California prisoners wait in limbo under a death penalty process halted by the governor, a key criminal justice panel on Wednesday recommended making the state’s temporary freeze on executions permanent.  The Committee on Revision of the Penal Code, a seven-member board formed by the state Legislature last year to propose criminal justice reforms, released a 39-page report recommending that capital punishment be repealed in the Golden State.

“More than forty years of experience have shown that the death penalty is the opposite of a simple and rational scheme,” the report states. “It has become so complicated and costly that it takes decades for cases to be fully resolved and it is imposed so arbitrarily — and in such a discriminatory fashion — that it cannot be called rational, fair, or constitutional.”  

Poring through data on death sentences imposed and carried out since capital punishment was reinstated in California in 1978, the panel concluded the post-conviction litigation process has become “almost unfathomably long and costly.”  The report cites staggering racial disparities in who gets sentenced to death, with people of color making up 68% of those on death row in California.  It further notes that about a third of condemned prisoners suffer from mental illness, according to figures cited in a federal class action over mental health care in California prisons.  

Additionally, the report highlights that innocent people are sometimes executed.  It describes how 185 prisoners sentenced to death across the U.S. were later exonerated, including five formerly condemned prisoners in California.

The full report, which is available at this link, includes these passages in its executive summary:

After a thorough examination, the Committee has determined that the death penalty as created and enforced in California has not and cannot ensure justice and fairness for all Californians.

More than forty years of experience have shown that the death penalty is the opposite of a simple and rational scheme.  It has become so complicated and costly that it takes decades for cases to be fully resolved and it is imposed so arbitrarily — and in such a discriminatory fashion — that it cannot be called rational, fair, or constitutional.  Hundreds of California death sentences adjudicated in state and federal courts have been reversed or otherwise thrown out as unconstitutional while only 33 people are currently eligible for execution. 

Furthermore, recent efforts to improve, simplify and expedite California’s system of capital punishment have failed to accomplish their stated goals and may have made things even worse.

For the reasons in this report, which includes new data presented here for the first time, the Committee unanimously recommends repealing California’s death penalty.  Because we appreciate that this is a difficult goal, in the interim, the Committee unanimously recommends reducing the size of California’s death row by the following means:

• Award clemency to commute death sentences.
• Settle pending legal challenges to death sentences.
• Recall death sentences under Penal Code § 1170(d)(1).
• Limit the felony-murder special circumstance.
• Restore judicial discretion to dismiss special circumstances.
• Amend the Racial Justice Act of 2020 to give it retroactive application.
• Remove from death row people who are permanently mentally incompetent.

"Prosecutorial Reform and Local Crime Rates"

The title of this post is the title of this relatively short empirical paper available via SSRN and authored by Amanda Agan, Jennifer Doleac and Anna Harvey. Here is its abstract:

Many communities across the United States have elected reform-minded, progressive prosecutors who seek to reduce the reach and burden of the criminal justice system.  Such prosecutors have implemented reforms such as scaling back the prosecution of nonviolent misdemeanors, diverting defendants to treatment programs instead of punishment, and recommending against cash bail for defendants who might otherwise be detained pretrial.  Such policies are controversial, and many worry that they could increase crime by reducing deterrent and incapacitation effects.  In this paper we use variation in the timing of when these prosecutors took office, across 35 jurisdictions, to measure the effect of their policies on reported crime rates.  While our estimates are imprecisely estimated, we find no significant effects of these reforms on local crime rates.

Recent Prison Policy Initiative briefings spotlight how money matters, a lot, even in prison

I have been behind on highlighting some of the great briefings created or noted over the last month by Prison Policy Initiative.  A notable theme in all these recent reports is how economic realities and disparities do not get locked away even in with prison experience.  I recommend all this research in full:

"For the poorest people in prison, it’s a struggle to access even basic necessities: Our survey of all 50 states and the BOP reveals that prisons make it hard for people to qualify as indigent—and even those who do qualify receive limited resources."

"Show me the money: Tracking the companies that have a lock on sending funds to incarcerated people: We looked at all fifty state departments of corrections to figure out which companies hold the contracts to provide money-transfer services and what the fees are to use these services."

"The CFPB’s enforcement order against prison profiteer JPay, explained: The company was fined $6 million for exploiting people leaving prison."

"Blood from a stone: How New York prisons force people to pay for their own incarceration: A study by members of the New York University Prison Education Program Research Collective gives important first-hand accounts of the damage done when prisons shift financial costs to incarcerated people."

Detailing "Mellowed Federal Enforcement" and other federal stories from Marijuana Law, Policy & Reform

In a recent post over at Marijuana Law, Policy & Reform, I have already noted a new essay, "How State Reforms Have Mellowed Federal Enforcement of Marijuana Prohibition" that I had the pleasure of co-authoring with my colleague Alex Fraga.  The forthcoming short piece is now up on SSRN, and here is part of its abstract:

Over [a] quarter century of state reforms, blanket federal marijuana prohibition has remained the law of the land. Indeed, though federal marijuana policies have long been criticized, federal prohibition has now been in place and unchanged for the last half century.  But while federal marijuana law has remained static amidst state-level reforms, federal marijuana prohibition enforcement has actually changed dramatically.  In fact, data from the U.S. Sentencing Commission (USSC) reveals quite remarkable changes in federal enforcement patterns since certain states began fully legalizing marijuana in 2012.

This essay seeks to document and examine critically the remarkable decline in the number of federal marijuana sentences imposed over the last decade.  While noting that federal sentences imposed for marijuana offenses are down 83% from 2012 to 2020, this essay will also explore how the racial composition of persons sentenced in federal court has evolved as the caseload has declined....  The data suggest that whites are benefiting relatively more from fewer federal prosecutions.

Reports from the Drug Enforcement Administration indicate that marijuana seizures at the southern US border have dwindled as states have legalized adult use and medicinal use of marijuana, and the reduced trafficking over the southern border likely largely explain the vastly reduced number of federal prosecutions of marijuana offenses. Nonetheless, though still shrinking in relative size, there were still more than one thousand people (and mostly people of color) sentenced in federal court for marijuana trafficking in fiscal year 2020 and over 100 million dollars was committed to the incarceration of these defendants for activities not dissimilar from corporate activity in states in which marijuana has been legalized for various purposes. 

In addition to welcoming feedback on this short piece, I also figure it would be useful to highlight a few additional posts with other recent coverage of federal reform issues and dynamics over at MLP&R:

• Notable new CRS report on ways a President could legalize or decriminalize marijuana at the federal level

• Some early coverage of big new federal GOP bill, the States Reform Act, to legalize marijuana

• "New GOP weed approach: Feds must ‘get out of the way’" ... which is an important historic drug policy theme

• Highlighting the persistent Democratic divide over federal marijuana reform

• Another Veterans Day with veterans still not getting support when it comes to medical marijuana access

• Latest Gallup poll indicates that over two-thirds of Americans still support making marijuana legal