Sentencing Law and Policy

New special issue of Science explores "Criminal Injustice: Mass Incarceration in the United States"

This new issue of Science includes a special section of articles exploring the deep roots and deep consequences of mass incarceration in the United States.  This introduction, titled "An outlier of injustice," sets up what follows this way:

For much of the 20th century, the incarceration rate in the US was relatively stable.  But beginning in the early 1970s, several decades of “tough on crime” policies contributed to a dramatic rise in incarceration.  Today, despite recent declines, the US incarceration rate remains a global outlier.  This system of mass incarceration is particularly hostile to Black Americans, who have been imprisoned in stunningly disproportionate numbers. 

Amid burgeoning interest in scholarship on criminal justice, this special issue examines social science research on the state of mass incarceration in the US: its origin and expansion, its far-reaching effects on families and communities, and why the public tolerates and encourages it.  Tracing the system’s roots back to slavery, researchers examine the interplay between incarceration, labor demand, and racial domination in the labor market.  As criminal justice infrastructure has grown more costly and vast, the system has extracted wealth from poor communities that it preys upon to fiscally survive. 

This ever-expanding web of incarceration entangles extraordinary numbers of people of all racial groups, with close to half of all Americans having a spouse or coparent, parent, sibling, or child that is or has been incarcerated.  To support such a system, many Americans psychologically deny that structural racism is at the heart of criminal justice.  Government responses to social justice protests often ignore root social causes and possible remedies and instead rely on policing.  Also, law enforcement increasingly draws upon commercial technologies that challenge public oversight and democratic policing.  Research on these topics is critical to reveal how we got here, as well as to inform and inspire change.

Here are links to the articles that follow, all of which are worth checking out:

"Policing social unrest and collective violence" by Elizabeth Hinton

"The corporate shadow in democratic policing" by Elizabeth E. Joh

"Assessing mass incarceration’s effects on families" by Hedwig Lee and Christopher Wildeman

"Exclusion and exploitation: The incarceration of Black Americans from slavery to the present" by Christopher Muller

"Toward an understanding of structural racism: Implications for criminal justice" by Julian M. Rucker and Jennifer A. Richeson

"The predatory dimension of criminal justice" by Joshua Page and Joe Soss

"Doing Justice in Sentencing"

The title of this post is the title of this short new article by Michael Tonry now available via SSRN.  Here is its abstract:

Anyone who would read a paper on this subject or with this title knows that sentences received by people convicted of crimes in American courts, especially serious ones, are much too often cruelly severe, racially disparate, and reflective more of a prosecutor’s or judge’s idiosyncrasies than of a reasoned assessment of what considerations of justice concerning this offense by this person require or permit.  The process is ultimately casual, as if invasive intrusion into someone’s life is a matter of no great importance.  To people sentenced, their families, and others who love them it is devastatingly important.  Relatively simple ideas about justice, fairness, equality, and parsimony provide a framework to replace contemporary casual justice with a jurisprudence that takes human dignity seriously.

Continuing capital commentary as SCOTUS considers Marathon bomber's capital process

In prior posts here and here, I rounded up press coverage just before and just after the Supreme Court heard oral argument in US v. Tsanaev to consider whether the First Circuit erred when reversing the death sentence given to the bomber who killed three and injured hundreds during the 2013 version of the Boston Marathon.  Not surprisingly, the SCOTUS argument has prompted a number of thoughtful folks to have thoughtful comments on the case and much that surrounds it.  Here is a partial round-up of some of this recent commentary:

From Erwin Chemerinsky, "Biden’s death penalty hypocrisy"

From Chris Geidner, "Supreme Court couldn't consider death penalty case if not for Biden's broken promise"

From Thaddeus Hoffmeister, "Tsarnaev Supreme Court appeal: Do unbiased jurors exist in an age of social media?"

From Karen J. Pita Loor, "The perplexing case of Biden, Tsarnaev and the death penalty"

From Amelia Wirts, "Death penalty can express society’s outrage – but biases often taint the verdict"

"Sentencing Commission Data Tool Is Deeply Flawed"

The title of this post is the headline of this new Law360 commentary by Michael Yeager which provides an important and critical discussion of the US Sentencing Commission's new JSIN sentencing tool.  This piece develops and details some of the concerns flagged here when JSIN was first released, and here are excerpts from the piece:

In some respects, [JSIN] an improvement from the Sentencing Commission's annual reports and past data tools. For example, past annual reports have provided an average of all fraud sentences; that method lumps all frauds together, whether they involve $1 million or $100 million.

JSIN is more focused than that and thus closer to the guidelines calculation that judges must actually perform at sentencing. But the most important numbers that JSIN reports — the average and median sentences for a particular position on the sentencing table — are inflated by a series of choices to exclude large chunks of the commission's own dataset.

First, JSIN excludes all sentences for cooperating witnesses, meaning cases in which the government filed and the court granted a Section 5K1.1 motion for a substantial assistance departure....

Second, JSIN includes mandatory minimum sentences, which by definition are not examples of how judges have exercised discretion. In fact, they're the opposite....

Third, and most important, JSIN excludes all nonimprisonment sentences: not just nonimprisonment sentences due to a Section 5K1.1 motion, or application of Section 5K3.1's safety valve, but rather all nonimprisonment.  That is, all sentences that are probation only, fine only, alternative confinement only (such as home confinement) or any combination of those options that doesn't also include prison time.

At positions on the sentencing table where the range is zero to six months, that means that JSIN is excluding sentences within the advisory range.  And even at many higher positions on the sentencing table, a substantial portion of cases are nonimprisonment.  Yet, JSIN excludes all of them from its averages and medians.

The effect of these choices can be dramatic. When JSIN is queried for stats on the position of the sentencing table for U.S. Sentencing Commission Section 2T1.1 — tax evasion, offense level 17 and criminal history I — JSIN reports the median sentence as 18 months.  But when one uses the commission's full dataset to calculate the median on that same cohort (Section 2T1.1, level 17, history I, no 5K1.1) and includes sentences of probation, the median is significantly lower.  Instead of JSIN's 18 months, the median is just 12 months. That's a whole six months lower — and a 33% decrease....

[B]y conducting a more complete study of the Sentencing Commission's data than the JSIN provides, the defense could also examine particular aspects of a guidelines calculation, such as loss or drug weight.  The defense could strip out mandatory minimum sentences or do an analysis of 10 or 15 years of cases, not just five.  They could also break down cases by circuit or district, not just nationally.  Now that JSIN is available, defense attorneys should consider all the above.  It was already a good idea to use accurate and complete data analysis of similarly situated defendants. But now the need has increased. The defense now has to counter JSIN and the false impression it creates.

Prior related JSIN posts:

• USSC releases interesting (but problematic?) new JSIN platform providing data on sentencing patterns
• What do we know about JSIN and its use in federal sentencing proceedings two weeks after its release? 

Latest issue of SMU Law Review focused on criminal justice reforms

I just had a chance to notice and note here that the Summer 2021 issue of the SMU Law Review has a great bunch of articles on a great array of criminal justice topics.  Here are all the pieces in the issue, all of which are relatively short and many of which relate to sentencing issues in various ways:

The Racial Architecture of Criminal Justice by Bennett Capers

Beyond Transparency: Police Union Collective Bargaining and Participatory Democracy by Walter Katz

Reforming State Bail Reform by Shima Baughman, Lauren Boone, and Nathan Jackson

Power and Procedure in Texas Bail-Setting by Amanda Woog and Nathan Fennell

Victims’ Rights in the Diversion Landscape by Kay L. Levine

“Victims’ Rights” and Diversion: Furthering the Interests of Crime Survivors and the Community by Miriam Krinsky and Liz Komar

The Reform Blindspot by Irene Oritseweyinmi Joe, Shelly Richter, and Dayja Tillman

Let’s Move Criminal Justice Reforms Upstream: A Perspective from the Bench by Bridget McCormack

"New York State’s New Death Penalty: The Death Toll of Mass Incarceration in a Post-Execution Era"

The title of this post is the title of this interesting new report from the the Center for Justice at Columbia University which reinforces my sense that we ought to give a lot more attention to functional death sentences (which are relatively frequent) than to formal death sentences (which are relatively rare). Here is the report's introduction (with emphasis in the original and notes removed):

New York State was once an international outlier in its use of capital punishment.  Prior to 1972, when the US Supreme Court outlawed the death penalty, New York ranked second in most executions of any state in the country, executing 1130 people over a 364 year period.  Yet, abolishing the death penalty did not slow death behind bars.  Since 1976 — when the state began compiling data on deaths in custody — 7,504 people died while in the custody of the New York State Department of Corrections and Community Supervision (DOCCS).  This is seven times the number of deaths of those who were executed by the state.  Those who have died in custody over the last 45 years have largely been Black people, and particularly in the last decade, older people and people serving sentences of 15 years or more.  Increasingly, advocates and lawmakers have come to call this devastating reality “death by incarceration,” or “death by incarceration sentences” that ensure that thousands will die in prison and/or face a Parole Board that denies release to the majority of people who appear before it, and disproportionately denies release to Black New Yorkers.

This report compiles and analyzes data on in-custody deaths in New York State between 1976 and 2020 and offers policy recommendations for curtailing the number of deaths behind bars.  Without policy intervention, thousands of currently incarcerated New Yorkers are at risk of dying behind bars in the years and decades to come. 

All lives lost in the New York State correctional system raise questions about the morality and humanity of the state and its governance.  The large proportion of deaths of incarcerated Black New Yorkers highlight the racism of criminal justice policy in the state, and how the need for racial justice is a matter of life and death.  The disproportionate deaths of older adults serving long sentences highlight important questions about the state’s investments in public and community safety.  Incarcerated adults aged 55 and older are the least likely to commit a new crime across all age groups, and yet are kept in prison due to a lack of meaningful opportunities for release and repeated parole denials. Importantly, death by incarceration sentences and repeated parole denials ignore both the reality and possibility of redemption and transformation for people in prison. Older adults in prison are often leaders, mentors and stewards of the community. Of those who are released from prison, many continue their service and leadership in their communities, mentoring young people, providing reentry services for others released from custody, and intervening to prevent and reduce violence.

This report concludes that New York State must end its new de facto death penalty and offers recommendations towards this goal, including policies with large community and legislative support.

Key Findings 

• More people have died in NY State custody in the last decade than the total of number of people executed in the 364 years New York State had the death penalty. 1,278 people died in NY State custody in the last decade compared to 1,130 who were executed in NY State between 1608 and 1972.
• Today, more than 1 in 2 people who die in NY State custody are older adults, compared to roughly 1 in 10 at the beginning of the era of mass incarceration. 
• Every three days someone dies inside a NYS prison, compared to every 12 days in 1976. 
• In 2018, Black people accounted for 45% of all deaths in DOCCS custody, despite only making up 14% of all deaths of New York State residents. 
• People who have already served 15 years in custody account for 9 times more of the total deaths behind bars today than they did in the 1980s, the first full decade of available data. 
• 40% of all deaths behind bars since 1976 of people 55 and older happened in the last ten years. 
• In the most recent decade, roughly 1 in 3 people who died behind bars had served at least 15 years, compared to 1 in 29 in the 1980s.

SCOTUS argument suggests Justices likely to reinstate reversed death sentence for Boston Marathon bomber Dzhokhar Tsarnaev

When the US Supreme Court back in March decided to grant cert on the federal government's appeal of the First Circuit's reversal of Boston Marathon bomber Dzhokhar Tsarnaev's death sentence, a smart bet would have been that a majority of Justices were inclined to reinstate that death sentence.  Such a bet looks even smarter after today's Supreme Court argument where the Justices questions and comments revealed the predictable ideological split and strongly suggested that a majority of Justices will be voting to reinstate Tsarnaev's death sentence.

The headlines from various press and blog coverage reports on most of the essentials:

From CNN, "Supreme Court conservatives appear ready to endorse death sentence for Boston Marathon bomber Dzhokhar Tsarnaev"

From Crime & Consequences, "SCOTUS Appears Poised to Re-Instate Death Penalty for Boston Marathon Bomber"

From Fox News, "Boston Bomber case: Kavanaugh, Kagan clash in rare testy exchange over mitigating evidence"

From NBC News, "Supreme Court appears likely to allow death sentence for Boston Marathon bomber"

From SCOTUSblog, "Justices appear to favor reinstating death penalty for Boston Marathon bomber"

Interestingly, the second of the two questions presented in the case captured most of the Justices' attention as they explored "Whether the district court committed reversible error at the penalty phase of respondent’s trial by excluding evidence that respondent’s older brother was allegedly involved in different crimes two years before the offenses for which respondent was convicted."  Some of the questioning on this issue suggested that the Court might have to, or might want to, say something significant about the evidentiary rules that attend the penalty phase of a capital trial.  If they do speak to this issue broadly, the significance of the Tsarnaev case could extend beyond this defendant's awful crimes and ultimate punishment.

Coverage and commentary as 100th guilty plea entered for federal charges in January 6 riots

Zoe Tillman at BuzzFeed News has an impressive extended report with all sorts of linked documents to chronicle pleas entered so far on federal charges stemming from the January 6 riot at the US Capitol.  This main article is fully  headlined: "100 Capitol Rioters Have Pleaded Guilty. Here’s What Their Cases Show About The Jan. 6 Investigation.  Guilty pleas are stacking up. Here’s what rioters are admitting to, and what they and the government are getting out of these deals."  Here is a snippet:

One hundred is an arguably arbitrary number, since the total number of people charged with participating in the riots keeps growing and prosecutors haven’t announced a target for when the investigation will end. The FBI has hundreds of photos posted online of people they’re still trying to identify.

But 100 is a nice round number, and a large enough pool to understand the deals that prosecutors have offered in the months since the attack on the Capitol, who is taking them, and what both sides are getting in return.  BuzzFeed News is publishing a database of documents filed in connection with these pleas, including the agreements that outline the terms and separate statements of the criminal conduct that defendants are admitting to....

Defendants taking early deals are avoiding the greater legal risk and public exposure they’d face if they went to trial; they’re hoping to walk away with little to no time behind bars.  Prosecutors are securing a steady stream of convictions as they continue to track down more suspects and defend against legal challenges to some of the more complex cases they’ve already brought.

Judges, meanwhile, are using some of their final encounters with rioters at plea hearings and sentencings to denounce the post-election conspiracy theories that motivated the riots and the right-wing rhetoric downplaying the severity of what happened at the Capitol in the months that followed.  They’ve insisted defendants fully admit the role they played — not just the individual criminal activity they’re pleading guilty to, but also enabling the attack on Congress and bolstering Trump’s effort to disrupt the peaceful transfer of power after he lost in November.

This companion article, headlined "How To Read The Capitol Riot Plea Deals: A judge accepted the 100th guilty plea in the Jan. 6 cases on Wednesday," provides a nice primer on how to understand the particulars of all the federal filings in these cases.

And, somewhat relatedly, Carissa Byrne Hessick has this effective new Lawfare piece titled "Are the Jan. 6 Plea Deals Too Lenient?".  Here is its concluding paragraph:

In short, it may be too soon to judge how federal prosecutors are using their plea bargaining leverage in the Jan. 6 cases.  Only a small fraction of those cases have resulted in guilty pleas at this point.  And it appears that so far the government has been prioritizing those defendants who did little more than enter the Capitol, walk around and leave. More generally, defendants who plead guilty sooner tend to get shorter sentences than those who plead guilty later. In fact, some prosecutors make “exploding” plea offers that expire if a defendant takes too long to plead guilty.  All of these factors suggest that the bulk of the Jan. 6 defendants may end up receiving far less lenient plea bargains than we’ve seen so far.  Although it seems like a safe prediction that other Jan. 6 defendants will get lenient plea deals, whether that is what actually happens is in the hands of the government.  When it comes to plea bargaining, prosecutors hold all the cards, and so while a handful of Jan. 6 defendants may choose to go to trial, prosecutors will get to dictate what the guilty pleas look like for the rest of them.

Some of many prior related posts:

• "Many Capitol rioters unlikely to serve jail time" because some facing only misdemeanor convictions
• Noting the importance of charging policies and practices (and consistency?) as federal rioting charges get resolved from coast-to-coast
• Harsh penal treatment of some Capitol rioters being criticized by notable progressive 
• New plea deals sets possible new precedent for resolving low-level Capitol riot prosecutions with single misdemeanor with 6 month jail maximum
• Federal judges expressing some concern about lenient plea deals for some Capitol riot defendants
• Notable accounting of federal prosecutions and sentences responding to riots both before and during January 6
• Recent Jan 6 rioter sentencings showcase different judges with different sentencing perspectives

US Sentencing Commission issues new report on "Federal Sentencing of Child Pornography: Production Offenses"

Back in June 2021, as detailed in this post, the US Sentencing Commission released this big report, running nearly 100 pages, titled "Federal Sentencing of Child Pornography: Non-Production Offenses."  A follow-up report, running "only 72 pages" was released today here under the title "Federal Sentencing of Child Pornography: Production Offenses."  This USSC website provides some "key findings" from the report, and here are some of those findings:

• Although child pornography production cases comprise a small percentage of the overall federal caseload, the expansion of digital and mobile technology has contributed to a 422 percent increase in the number of production offenders sentenced over a 15-year period, from 98 offenders in fiscal year 2005 to 512 offenders in fiscal year 2019.

• Child pornography production offenders generally received lengthy sentences. In fiscal year 2019, production offenders received an average sentence of almost 23 years of imprisonment (275 months), ranging from one year to life imprisonment. Furthermore, over three-quarters (78.0%) were convicted under a statute carrying at least a 15-year mandatory minimum penalty. Most child pornography production offenders, however, received a variance below the applicable guideline range (57.2% of the 512 cases).

• A majority (56.6%) of child pornography production cases sentenced in fiscal year 2019 involved a single victim. However, a substantial minority of cases (41.0%) involved more than one minor victim, ranging from two to 440 victims.

• The typical production offender maintains a position of trust over the victim and has physical access to the child during the production of child pornography. Of the 512 child pornography production offenders sentenced in fiscal year 2019, 60.3 percent were related to or otherwise maintained a position of trust over the minor victim, whether through familial relationships or by virtue of the offender’s role as a teacher or a coach, for example.

• Due to technological advancements and the changing nature of production offenses, an increasing proportion of production offenders exploit victims remotely through use of the internet or mobile devices. For example, over one-third (35.4%) of production offenders sentenced in fiscal year 2019 were internet strangers who met their victims through an online platform, more than double the proportion of offenders sentenced in fiscal year 2010 who met their victims online (14.3%)....

• The vast majority of fiscal year 2019 child pornography production offenders (80.9%) were sentenced for an offense that involved sexual contact of a minor....

• Although the average sentence imposed was lengthy for child pornography production offenders (275 months), courts imposed longer sentences (averaging over 300 months) on offenders who:

  • victimized infants or toddlers (average sentences of 364 months and 330 months, respectively);
  • were parents of victims (340 months, on average);
  • engaged in or facilitated the sexual contact of a minor during the offense (307 months, on average); or
  • incapacitated victims (313 months, on average).

Prior recent related post:

US Sentencing Commission issues big new report on "Federal Sentencing of Child Pornography: Non-Production Offenses" 

"The Color of Justice: Racial and Ethnic Disparity in State Prisons"

The title of this post is the title of this new publication by The Sentencing Project authored by Ashley Nellis.  Here are parts of the report's overview:

This report details our observations of staggering disparities among Black and Latinx people imprisoned in the United States given their overall representation in the general population.  The latest available data regarding people sentenced to state prison reveal that Black Americans are imprisoned at a rate that is roughly five times the rate of white Americans.  During the present era of criminal justice reform, not enough emphasis has been focused on ending racial and ethnic disparities systemwide.

Going to prison is a major life-altering event that creates obstacles to building stable lives in the community, such as gaining employment and finding stable and safe housing after release. Imprisonment also reduces lifetime earnings and negatively affects life outcomes among children of incarcerated parents.

These are individual-level consequences of imprisonment but there are societal level consequences as well: high levels of imprisonment in communities cause high crime rates and neighborhood deterioration, thus fueling greater disparities.  This cycle both individually and societally is felt disproportionately by people who are Black. It is clear that the outcome of mass incarceration today has not occurred by happenstance but has been designed through policies created by a dominant white culture that insists on suppression of others....

Truly meaningful reforms to the criminal justice system cannot be accomplished without acknowledgement of its racist underpinnings. Immediate and focused attention on the causes and consequences of racial disparities is required in order to eliminate them.  True progress towards a racially just system requires an understanding of the variation in racial and ethnic inequities in imprisonment across states and the policies and day-to-day practices that drive these inequities.

KEY FINDINGS

• Black Americans are incarcerated in state prisons at nearly 5 times the rate of white Americans.
• Nationally, one in 81 Black adults per 100,000 in the U.S. is serving time in state prison.  Wisconsin leads the nation in Black imprisonment rates; one of every 36 Black Wisconsinites is in prison.
• In 12 states, more than half the prison population is Black: Alabama, Delaware, Georgia, Illinois, Louisiana, Maryland, Michigan, Mississippi, New Jersey, North Carolina, South Carolina, and Virginia.
• Seven states maintain a Black/white disparity larger than 9 to 1: California, Connecticut, Iowa, Maine, Minnesota, New Jersey, and Wisconsin.
• Latinx individuals are incarcerated in state prisons at a rate that is 1.3 times the incarceration rate of whites.  Ethnic disparities are highest in Massachusetts, which reports an ethnic differential of 4.1:1.

RECOMMENDATIONS

1. Eliminate mandatory sentences for all crimes.  Mandatory minimum sentences, habitual offender laws, and mandatory transfer of juveniles to the adult criminal system give prosecutors too much authority while limiting the discretion of impartial judges.  These policies contributed to a substantial increase in sentence length and time served in prison, disproportionately imposing unduly harsh sentences on Black and Latinx individuals.

2. Require prospective and retroactive racial impact statements for all criminal statutes.  The Sentencing Project urges states to adopt forecasting estimates that will calculate the impact of proposed crime legislation on different populations in order to minimize or eliminate the racially disparate impacts of certain laws and policies.  Several states have passed “racial impact statement” laws.  To undo the racial and ethnic disparity resulting from decades of tough-on-crime policies, however, states should also repeal existing racially biased laws and policies.  The impact of racial impact laws will be modest at best if they remain only forward looking.

3. Decriminalize low-level drug offenses.  Discontinue arrest and prosecutions for low-level drug offenses which often lead to the accumulation of prior convictions which accumulate disproportionately in communities of color.  These convictions generally drive further and deeper involvement in the criminal legal system.

Making the case for deferred federal sentencing for individuals (like corporations)

The Hill has this notable new commentary by Joel Cohen, somewhat poorly titled "Why not defer individual jail sentences?," that develops the case for allowing federal defendants facing prison time to have a presentencing period to demonstrate reform and their true character.  Here are excerpts:

[S]trictly speaking, nothing in federal criminal procedure necessarily enables an individual to have the court postpone his sentence so that the judge, if so inclined, can consider two or three more years of personal growth and “turnaround” on the part of the defendant.

Oddly, by contrast, a corporate defendant can get such a benefit.  If a prosecutor accords an indicted corporate defendant a deferred prosecution agreement, the case typically is put on hold for months, maybe a year or more, so that the corporation can show the court that it is, indeed, “cleaning up its act.”  Perhaps, ideally, during that period it has established a corporate compliance program calculated to monitor the type of misconduct that got the corporation into trouble. Under the agreement, if approved by the court, the indictment typically would be fully dismissed when the monitoring period ends.

So, why isn’t something similar available for individual defendants?  I’m not suggesting an outright dismissal of a person’s case after an agreed-upon (somewhat court-monitored) period of “good behavior.”  Instead, I’m proposing that a defendant’s sentence be postponed (at the request of, or with the consent of, the defendant), with the judge receiving periodic, informal reports about the defendant’s ongoing conduct.  During this period, the sentencing judge becomes the defendant’s “probation officer” by being able to determine whether the person is walking the straight and narrow.

Is there a better means to determine if the defendant is truly being rehabilitated?  Not only that, doesn’t it also incentivize rehabilitation when the judge will continue to maintain the gavel for use after this period of sentence postponement ends?

To be sure, some defendants will run afoul of the judge’s beneficence in having granted such a continuance.  If so, however, the judge would be positioned to remand the defendant immediately to begin his sentence.  And that sentence likely would not be particularly lenient — maybe even more harsh than it otherwise would have been.  That’s the price a person should pay if given a second chance and he blows it.

Yes, the procedure proposed here would place added duties and time burdens on judges whose calendars already are overburdened, and likely for probation officers, too, if the judge decides to direct the probation department to periodically report the defendant’s progress.  Still, wouldn’t the judges who employ this procedure be making valuable contributions to criminal justice in helping to rehabilitate defendants and lowering the need for incarceration in an overloaded federal prison system?   Most importantly, the suspense period would give the defendant every impetus to straighten up and live a law-abiding life.

Yes, in some cases it might be painful for a defendant to wait two or three years for his “day of judgment,” not knowing if he will have satisfied the judge when sentencing day finally arrives.  The ball is in his court, though. He can opt out, or never ask his lawyer to request that the judge put the case on hold....

I did not initiate this idea in my imagination. U.S. District Judge Emmet Sullivan of the District of Columbia occasionally employs this “suspense” practice in cases where it makes sense to him.  And, as I understand it, he sometimes proposes it if an informed defendant affirmatively requests it.  It seems to be working.  I suspect it probably doesn’t require the government’s consent, although obviously that would be preferable. It’s something for other judges to think about.

SCOTUS to hear argument over First Circuit's reversal of death sentence of Boston Marathon bomber Dzhokhar Tsarnaev

Yesterday, the 2021 version of the Boston Marathon took place.  Tomorrow, the Supreme Court will hear oral argument in US v. Tsanaev to consider whether the First Circuit erred when reversing the death sentence given to the bomber who killed  three and injured hundreds during the 2013 version of the Boston Marathon.  (I have done dozens of posts on crimes and punishments of Dzhokhar Tsarnaev, and below are a few of the most recent ones.)

There is a lot of media coverage of the case as it gets to the Justices for oral argument, and here is a sampling:

From the AP, "Marathon bomber faces revived death sentence in high court"

From Courthouse News Service, "Fate of Boston Marathon bomber faces Supreme Court reckoning"

From Reuters, "Boston Marathon bombing victims split on death penalty in Supreme Court case"

From SCOTUSblog, "Justices to consider government’s appeal to reinstate death penalty for Boston Marathon bomber"

From Time, "Boston Marathon Bomber Supreme Court Case Exposes Split Between Biden and Justice Department on Death Penalty"

From WGBH, "Will The Supreme Court Reinstate A Death Sentence For Boston Marathon Bomber?"

A few many prior recent related posts:

• First Circuit panel reverses death sentence of Boston Marathon bomber Dzhokhar Tsarnaev
• Unsurprisingly, victims of Boston Marathon bomber differ on seeking a new death sentence for Dzhokhar Tsarnaev after reversal on appeal  
• AG Barr says, unsurprisingly, that feds will appeal reversal of Boston Marathon bomber's death sentence
• Feds officially seek SCOTUS certiorari to review First Circuit's reversal of Boston Marathon bombers death sentence 
• SCOTUS grants cert to review First Circuit's reversal of death sentence of Boston Marathon bomber Dzhokhar Tsarnaev 
• Justice Department files SCOTUS brief seeking to restore death sentence for Boston Marathon bomber Dzhokhar Tsarnaev 
• Might any Justices be intrigued by notion that Eighth Amendment originalism makes the Boston Marathon bomber's death sentence suspect? 

What do we know about JSIN and its use in federal sentencing proceedings two weeks after its release?

In this post two weeks ago, titled "USSC releases interesting (but problematic?) new JSIN platform providing data on sentencing patterns," I reported on the release by the US Sentencing Commission of a new sentencing data tool for federal sentencing judges. The Judiciary Sentencing INformation (JSIN) data tool is described this way by the USSC:

The Judiciary Sentencing INformation (JSIN) platform is an online sentencing data resource specifically developed with the needs of judges in mind.  The platform provides quick and easy online access to sentencing data for similarly-situated defendants.  JSIN expands upon the Commission’s longstanding practice of providing sentencing data at the request of federal judges by making some of the data provided through these special requests more broadly and easily available....

JSIN provides cumulative data based on five years of sentencing data for offenders sentenced under the same primary guideline, and with the same Final Offense Level and Criminal History Category selected.

I mentioned in my prior post that JSIN seemed relatively easy to navigate and quite useful, but I also expressed concern that the JSIN tool was possibly constructed with built-in and systemic "severity biases" due to certain data choices.  I keep hoping some others might soon write about JSIN and the role it could or should play in federal sentencings, but to date I have seen no press coverage or any other commentary about JSIN.  I have heard some positive review from a few federal district judges, though that may just reflect the tendency of all thoughtful sentencing judges to find any and all additional sentencing data to be helpful to their work.

Given that well over 1000 persons are sentenced ever average week in the federal sentencing system, I am now wondering if the USSC or anyone else is collecting any data on whether and how JSIN is being used in current federal sentencings.  Are any probation offices including JSIN data in presentencing reports?  Are federal prosecutors and defense attorneys using JSIN data in sentencing briefs and arguments?  Are federal sentencing judges referencing JSIN data in their sentencing decision-making?

Does Prez Trump's statement to clemency advocates to "get this guy home" constitute an enforceable commutation?

The question in the title of this post is the question explored in this recent lengthy Washington Post article discussing a notable new filing by lawyers representing James Rosemond.  The article is headlined "Trump granted hip-hop manager clemency but left him in prison, lawyers claim," and here are excerpts (with links to key filings):

The waning days of Donald Trump’s presidency saw a carnival of celebrities and those with personal connections to him jostling for clemency. Trump obliged many of them, granting pardons to rappers Kodak Black and Lil Wayne and longtime allies Stephen K. Bannon and Roger Stone.

And then there was James Rosemond, known as “Jimmy Henchman,” a once-major player in the hip-hop industry who represented artists such as Salt-N-Pepa, the Game, Akon and Brandy before he was condemned to nine life terms for drug trafficking and murder for hire.

For years, Rosemond’s attorneys and a cadre of celebrity advocates — including retired National Football League great Jim Brown and the actor Michael K. Williams, who died last month — had argued that Rosemond was unjustly convicted, campaigning for President Barack Obama and then Trump to grant him clemency.  Late last year, it appeared to Rosemond’s advocates that they had succeeded. 

On Dec. 18, Trump called Brown and his wife, Monique, according to legal affidavits signed by the Browns. “Let’s get this guy home for Christmas,” Trump told the staff in his office during that call, the Browns said.

By the end of the conversation, the Browns said, they had no doubt that Trump meant he was commuting Rosemond’s sentence. Rosemond’s representatives say that they were told his family should go pick him up the following week and that loved ones traveled to West Virginia to be there when he walked out of prison after a decade inside.  But he never emerged, they say.  The family returned home devastated, and Trump left office two months later.

The Browns’ affidavits are now central to a novel legal argument being advanced by Rosemond’s attorneys that speaks to the mad dash at the end of the Trump administration, when celebrity and influence injected even more uncertainty than usual into the unsettled, high-stakes law of presidential clemency.

In a petition filed Thursday afternoon in federal court in West Virginia, Rosemond’s attorneys claim that Trump’s conversation with Jim and Monique Brown constituted a public communication that he was commuting Rosemond’s sentence, which they said is all that is required to make the decision binding and irreversible.

“Rosemond is serving a sentence that no longer exists,” his attorneys write.  Though the 20-page petition cites obscure examples of informal presidential clemency decrees dating to President Abraham Lincoln’s handling of Civil War deserters, Rosemond’s attorneys acknowledge in the document that “this exact situation is unprecedented — it does not appear to have happened in the history of the United States.”

In a statement to The Washington Post, Rosemond attorney Michael Rayfield said that despite the lack of precedent, “it’s clear to me that Jimmy doesn’t belong in prison for another day.”...

Scholars of presidential clemency interviewed by The Post were split on whether Rosemond’s legal argument has merit.

Mark Osler, a professor of law at the University of St. Thomas in Minnesota who has argued for changes to the presidential clemency process, said that the argument “presents a fascinating question that hasn’t been addressed in modern times.”

“They’ve got a good point, which is that the Constitution does not set out a method to the granting of clemency,” Osler said.  While in other cases, presidents, including Trump, signed pardon warrants, “there’s no statute or constitutional provision that requires that.”

Margaret Love, who served as U.S. pardon attorney from 1990 through 1997, said that the petition, as described to her by a reporter, touches on “really interesting” questions about the legitimacy of a pardon or commutation only uttered by a president.  “I believe there’s no reason in principle that a president should have to write something down,” Love said.

But she said she believed Trump’s language, as she gleaned from the Browns’ affidavits, did not amount to a clear declaration that he was commuting Rosemond’s sentence.  “While the president indicated an intention to do the grant, it does not sound to me like he actually did the grant,” Love said.

Rounding up some recent notable criminal justice commentary

With limited time and lots going on, a round-up of links allows me to highlight quickly some interesting recent criminal justice commentary:

From Balls and Strikes, by Josie Duffy Rice, "The Supreme Court Can't Deliver Justice for William Wooden: The Court’s preoccupation with the precise definition of “occasion” obscures a multitude of deeper failures of the criminal legal system." 

From Balls and Strikes, by Jordan Paul, "How Courts Robbed Juries of a Powerful Tool for Doing Justice: Jury nullification is a pre-colonial tool that allows jurors to send a message to the state that certain criminal prosecutions are unacceptable. But for centuries, courts have been working out to hollow that right."

From The Marshall Project, "When Mom Is In Prison — And When She Comes Home: 'Oh, Mother of Mine,' a short documentary and photography project by Anna Rawls, explores the generational impact of incarcerating mothers."

From National Review, by Kevin Williamson, "Criminal-Justice-System Error"

From Reason, by Ira Stoll, "The Varsity Blues Trial Is a Reminder of Our Corrupt Criminal Justice System: Plead guilty and get "punishments ranging from probation to nine months in prison." Insist on a trial and face decades in prison."

From The Oklahoman, by Archbishop Paul S. Coakley, "Oklahoma's rush to execute harms culture of life"

From Slate, by John Pfaff, "Why Our Fixation on the Murder Rate Is Killing Us"

Terrific review of some ugly realities of stash-house stings

I hope readers recall the series of posts from a few years ago authored by Alison Siegler, Clinical Professor of Law and Director of the University of Chicago Law School's Federal Criminal Justice Clinic, concerning the extraordinary litigation her clinic has done in response to so-called "stash house stings" in which federal agents lure defendants into seeking to rob a (non-existent) drug stash-house.  Those posts (which are linked below with a few others) provides one look at one ugly part of the drug war represented by stash-house sting.  And now Rachel Poser has this great lengthy article in the newest issue of The New Yorker discussing the stash house sting story as part of the broader realities of undercover law enforcement operations.

The article is worth a full read, and its title highlights its themes: "Stash-House Stings Carry Real Penalties for Fake Crimes; The undercover operations seem like entrapment, but their targets can receive long sentences — sometimes even harsher than those for genuine crimes."  Here is a small excerpt: 

In the past four decades, sting operations of all types have become a major part of law enforcement in the United States, and stash-house stings are perhaps the most extreme example of this trend, because of the harsh penalties they carry. They can result in longer sentences than real crimes of a similar nature....  No judge is required to sign a warrant, and law-enforcement officials do not have to provide any evidence that a person is already engaged in criminal activity before initiating an undercover investigation....

The A.T.F. claims that stash-house stings catch established crews who already have the means to commit armed robbery. “If we wanted to go out and cast a wide net, we could do one of these a week — that’s not what we want to do,” an agent said in 2014, according to the Los Angeles Times.  “This technique is designed to take trigger-pullers off the streets.” Through the years, the A.T.F. has targeted many men with long and violent criminal histories, some of whom have shown up on the day of the robbery armed with assault rifles and bulletproof vests....

Nevertheless, the agency has also ensnared low-level offenders, and even people with no criminal records.  I reviewed thousands of pages of court transcripts from more than a dozen stash-house cases and found that many of the so-called crews were haphazard groups of family members, acquaintances, or strangers thrown together at the last minute, as targets scrambled to find willing participants. Suspects in these cases frequently asked the undercover agents for help distributing cocaine or obtaining guns....

As large numbers of stash-house cases made their way to court, some judges began to voice concern about the A.T.F.’s tactics.  “In this era of mass incarceration, in which we already lock up more of our population than any other nation on Earth,” Stephen Reinhardt, a judge on the Ninth Circuit Court of Appeals, wrote in 2014, “it is especially curious that the government feels compelled to invent fake crimes and imprison people for long periods of time for agreeing to participate in them.”  But the difficulty of proving entrapment, combined with mandatory minimums for drugs, left judges little choice but to affirm the convictions.  “You guys are dragging half a million dollars through a poor neighborhood,” William Fletcher, another Ninth Circuit judge, said the same year.  “Now, the law’s the law and I’m going to follow it, but I think you guys are making a mistake.”

Some prior related posts:

• Deep dive into litigation over Chicago “Stash House Stings”
• Guest post series on Chicago "stash-house sting" litigation: Part 1 on "Sentencing Victories"
• Guest post series on Chicago "stash-house sting" litigation: Part 2 on "Legal Victories"
• Guest post series on Chicago "stash-house sting" litigation: Part 3 on "A Path for Future Litigation" 
• Another update on Chicago "stash-house sting" litigation showcasing feds ugly drug war tactics 

"Fatalism and Indifference — The Influence of the Frontier on American Criminal Justice"

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

American criminal laws and criminal justice systems are harsher, more punitive, more afflicted by racial disparities and injustices, more indifferent to suffering, and less respectful of human dignity than those of other Western countries.  The explanations usually offered — rising crime rates in the 1970s and 1980s, public anger and anxiety, crime control politics, neoliberal economic and social policies — are fundamentally incomplete.  The deeper explanations are four features of American history and culture that shaped values, attitudes, and beliefs and produced a political culture in which suffering is fatalistically accepted and policy makers are largely indifferent to individual injustices.

The four elements are the history of American race relations, the evolution of Protestant fundamentalism, local election of judges and prosecutors, and the continuing influence of political and social values that emerged during three centuries of western expansion.  The last, encapsulated in Frederick Jackson Turner’s “frontier thesis,” is interwoven with the other three.  Together, they explain long-term characteristics of American criminal justice and the extraordinary severity of penal policies and practices since the 1970s.

Making the case for conservatives to advance criminal justice reforms

Mark Holden and Jason Pye has this new Fox News commentary headlined "Trump made conservatives criminal justice reform leaders. Here's how to keep it that way." Here are excerpts:

Since the signing of the First Step Act, the conservative movement has become a leader in criminal justice reform.  What could be more conservative than fixing the features in our justice system that promote unequal punishment, inhibit work, waste taxpayer money and law enforcement resources?

Voters, Republicans, Democrats, and independents alike, also believe in criminal justice reform and want these issues to be fixed.  A survey conducted in July by Public Opinion Strategies showed that 67 percent of Iowa voters, for example, believe that too many low-level drug offenders are in prisons.  The poll also reflected support for eliminating mandatory minimum prison sentences and having government resources focus more on treating those with addictions instead of prosecuting them....

We have found that harsher drug penalties do not deter use.  Congress imposed five- and ten-year mandatory minimum prison sentences for heroin, but the prevalence of its use is nearly identical today as it was in 1988.  These penalties have not deterred use of heroin nor expanded treatment options for those suffering from addition.  This policy choice fails to solve the root causes of substance abuse and addiction in America...

As conservatives, we must continue to establish ourselves as leaders in criminal justice reform.  It is a proven political winner, judging from President Trump`s expanded GOP coalition, especially black voters, who cited his support for criminal justice reform as a reason for their vote.  It is a proper platform to assert conservative principles.  Our system is badly broken, and we can use our values of public safety, restraining costs, small government, equality and due process to help fix it.

Prison Policy Initiative briefing highlights disproportionate role of Native peoples in US criminal justice systems

The Prison Policy Initiative has this notable new briefing authored by Leah Wang titled "The U.S. criminal justice system disproportionately hurts Native people: the data, visualized."  Here is part of its text:

This Monday is Indigenous Peoples’ Day, a holiday dedicated to Native American people, their rich histories, and their cultures. Our way of observing the holiday: sending a reminder that Native people are harmed in unique ways by the U.S. criminal justice system.  We offer a roundup of what we know about Native people (those identified by the Census Bureau as American Indian/Alaska Native) who are impacted by prisons, jails, and police, and about the persistent gaps in data collection and disaggregation that hide this layer of racial and ethnic disparity.

The U.S. incarcerates a growing number of Native people, and what little data exist show overrepresentation In 2019, the latest year for which we have data, there were over 10,000 Native people locked up in local jails.  Although this population has fluctuated over the past 10 years, the Native jail population is up a shocking 85% since 2000.  And these figures don’t even include those held in “Indian country jails,” which are located on tribal lands: The number of people in Indian country jails increased by 61% between 2000 and 2018.  Meanwhile, the total population of Native people living on tribal lands has actually decreased slightly over the same time period, leaving us to conclude that we are criminalizing Native people at ever-increasing rates.

Government data publications breaking down incarcerated populations by race or ethnicity often omit Native people, or obscure them unhelpfully in a meaningless “Other” category, perhaps because they make up a relatively small share of the total population.  The latest incarceration data, however, shows that American Indian and Alaska Native people have high rates of incarceration in both jails and prisons as compared with other racial and ethnic groups.  In jails, Native people had more than double the incarceration rate of white people, and in prisons this disparity was even greater.

Native people made up 2.1% of all federally incarcerated people in 2019, larger than their share of the total U.S. population, which was less than one percent.  Similarly, Native people made up about 2.3% of people on federal community supervision in mid-2018.  The reach of the federal justice system into tribal territory is complex: State law often does not apply, and many serious crimes can only be prosecuted at the federal level, where sentences can be harsher than they would be at the state level.  This confusing network of jurisdiction sweeps Native people up into federal correctional control in ways that don’t apply to other racial and ethnic groups.

Native women are particularly overrepresented in the incarcerated population: They made up 2.5% of women in prisons and jails in 2010, the most recent year for which we have this data (until the 2020 Census data is published); that year, Native women were just 0.7% of the total U.S. female population.  Their overincarceration is another maddening aspect of our nation’s contributions to human rights crises facing Native women, in addition to Missing and Murdered Indigenous Women (MMIW) and high rates of sexual and other violent victimization.

California enacts new laws to reduce certain sentencing enhancements

As reported in this Los Angeles Times article, headlined "Newsom signs bills restricting sentencing enhancements for many crimes," California has now enacted another round of notable sentencing reforms.  Here are the details:

Gov. Gavin Newsom on Friday signed laws aimed at reducing prison sentences for people convicted of drug- and gang-related crimes, despite concerns from prosecutors that the measures will hinder their effort to protect

Legislation signed by the governor includes Senate Bill 81, which seeks to reduce the number of sentence enhancements in criminal cases that can double prison terms. More than 150 enhancements exist for aggravating factors that include prior criminal records, use of a gun in the commission of a crime and offenses involving minors.

The law by state Sen. Nancy Skinner (D-Berkeley) would have judges dismiss enhancements in certain cases, including when they would result in “discriminatory racial impact” or a sentence of more than 20 years, or when the offense is connected to mental illness, prior victimization or childhood trauma. Skinner said enhancements disproportionately affect people of color.

“If sentence enhancements were applied fairly, this wouldn’t be an issue,” she said. “However, data shows that in California, you are much more likely to receive a sentence enhancement if you are Black. SB 81 tells our courts: Let’s stop unfair sentences and use enhancements only when necessary to protect the public.”

The California State Sheriffs’ Assn. opposes SB 81 “because it will likely result in many otherwise appropriate sentence enhancements being dismissed,” said Cory Salzillo, the group’s legislative director.

A companion measure signed by Newsom, SB 483, allows the retroactive repeal of sentence enhancements for prior prison or county jail felony terms. The governor also signed Assembly Bill 333, which restricts the use of sentence enhancements for alleged gang crimes.

Sen. Sydney Kamlager (D-Los Angeles) said her measure aims to reduce the list of crimes allowing gang enhancements to be charged, prohibit the use of the current charge as proof of a pattern of criminal gang activity, and separate gang allegations from underlying charges at trial. The senator said that current gang enhancements have weak definitions and that 92% of people with gang enhancements in the state are people of color....

The measure was opposed by the California District Attorneys Assn., which said it shows a misunderstanding of the way street gangs operate by requiring prosecutors to show a crime was committed to advance a gang as an organization.

“Street gangs don’t operate that way,” said El Dorado County Dist. Atty. Vern Pierson, president of the association. “We are seeing crimes throughout the state of California up dramatically directly related to gangs,” Pierson said. “Unquestionably [the new law] will hamper our ability to go after criminal street gangs.”