Sentencing Law and Policy

US Sentencing Commission publishes report on "Fentanyl and Fentanyl Analogues: Federal Trends and Trafficking Patterns."

The United States Sentencing Commission, despite its status as an incomplete agency due to the absence of confirmed commissioners for years, keeps churning out notable data reports.  Today brings this notable new publication, clocking in at 60 pages, titled "Fentanyl and Fentanyl Analogues: Federal Trends and Trafficking Patterns."  Here is this report's "Key Findings" from this USSC webpage:

• While fentanyl and fentanyl analogue offenders remain a small proportion of the overall federal drug trafficking caseload (5.8%), the number of fentanyl offenders and fentanyl analogue offenders has sharply increased over the last several years.
  • Since fiscal year 2015, the number of fentanyl offenders reported to the Commission more than doubled each fiscal year, resulting in a 3,592 percent increase, from 24 to 886 offenders.
  • Since fiscal year 2016, the number of fentanyl analogue offenders increased 5,725 percent, from four to 233 offenders.
• Many fentanyl and fentanyl analogue offenders trafficked more than one drug type.
  • Almost half (45.2%) of fentanyl offenders also trafficked at least one other drug.  The most common other drugs were heroin (59.8%) and powder cocaine (35.5%).
  • Over half of fentanyl analogue offenders (58.4%) also trafficked at least one other drug.  The most common other drugs were heroin (52.2%), fentanyl (40.4%), and powder cocaine (24.3%).

• Five fentanyl analogues, carfentanil, fentanyl, acetyl fentanyl, 4-fluoroisobutyryl fentanyl (or para-fluoroisobutyryl fentanyl), and cyclopropyl fentanyl accounted for 76.4 percent of the fentanyl analogues trafficked in fiscal year 2019.

• Nearly all fentanyl and fentanyl analogues trafficked in fiscal year 2019 were illicitly manufactured.  Only 18 fentanyl offenders and no fentanyl analogue offenders trafficked a diverted prescription form of the substance.

• For offenders sentenced in fiscal year 2019, fentanyl and fentanyl analogues had distinct trafficking patterns.  Fentanyl was more likely to enter the United States through the United States/Mexico border, while fentanyl analogues were more likely to be purchased directly over the Internet or dark web, frequently from China, and shipped by international mail or express package services.

• Roughly one-third or more of fentanyl and fentanyl analogue offenders (31.0% and 42.9%, respectively) sold these substances as a different drug, almost always heroin or a diverted prescription medication.
  • Just under five percent (4.5%) of fentanyl offenders and nine percent (9.0%) of fentanyl analogue offenders knowingly misrepresented these substances as another drug during a drug transaction.
• In fiscal year 2019, fentanyl or fentanyl analogue offenders accounted for almost three-quarters (74.7%) of all drug trafficking offenders sentenced where the offense of conviction established that death or serious bodily injury resulted from the substance’s use.
  • Fentanyl analogues are more lethal than fentanyl, as evidenced by the higher rate of death and serious bodily injury resulting from use.  Significantly more fentanyl analogue offenses (29.2%) resulted in a user’s death, compared to fentanyl offenses (14.1%).
• Fentanyl analogue offenders received longer average sentences (97 months) compared to fentanyl offenders (74 months) and had the longest average sentences of any major drug type sentenced in the federal system.

"Is Mass Incarceration Here to Stay?"

The title of this post is the title of this recent essay authored by Lynn Adelman and now available via SSRN. Here is its abstract:

This article argues that the number of people imprisoned in the United States is so large and that policymakers’ concerns about being perceived as soft on crime are so significant that it is very possible that mass incarceration will be with us for a very long time.  The article discusses some of the reasons that have been put forward as to why the United States has imprisoned so many people in the last 50 years and the harms that mass incarceration has brought about.  The article also explores some of the proposals that scholars and others have offered to reduce the number of people imprisoned.  Ultimately, however, the article questions whether there is sufficient will to address the enormity of the problem.

Two more new 3582(c)(1)(A) reductions to remedy stacked 924(c) sentences reformed by FIRST STEP Act

As regular readers know, I have made much of the FIRST STEP Act provision now allowing federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  The BOP reports here that a total of 2,693 of these motions have now been granted in the 25 months since the FIRST STEP Act became law.  The vast majority of the sentencing reduction motions brought by federal prisoners and granted by federal district judges these days are focused on the health threat posed by COVID.  But judges are still rightly finding other "extraordinary and compelling reasons" warranting sentencing reductions.

A helpful reader recently flagged for me two great new district court rulings using § 3582(c)(1)(A) to undo the now-repealed harshness of severe stacking of mandatory minimum 924(c) counts.  Both rulings ought to be read in full as yet another set of examples of the ridiculousness and injustice of (post-trial) sentences that had to be imposed by judges under mandatory sentencing provisions, and to appreciate how the FIRST STEP Act helps to restore at least a little sanity and justice in this ugly part of the federal sentencing world.  I will here just note the openning paragraphs and provide a link to the full opinions:

US v. McDonel, No. 07-20189 (ED Mich. Jan. 13, 2021):

Defendant Robert McDonel, then 21 years old, was sentenced to over 100 years in prison in 2008 after engaging in a spree of auto parts store robberies using a handgun.  That extraordinarily harsh sentence was the product of a statutory sentencing scheme that required enhancing and stacking sentences for multiple firearm brandishing offenses even when the crimes were committed as part of the same episode and charged in a single indictment.  Congress since has corrected that Draconian measure, but the legislation does not help McDonel, as the amendment is not retroactive. He asks the Court for relief under 18 U.S.C. 3582(c)(1)(A)(i), as amended by section 603(b)(1) of the First Step Act of 2018, Pub L. 115-391, 132 Stat. 5194, 5239, which allows a sentence reduction for “extraordinary and compelling reasons.”  The gross disparity created by the legislative changes, which mitigated the harshness in the sentencing scheme to which McDonel was subjected, coupled with McDonel’s youth and rehabilitative efforts, qualify as extraordinary and compelling reasons under section 3582(c)(1)(A)(i). Other factors that the Court also must consider favor relief.  The motion will be granted.

Download McDonel opinion

US v. Nafkha, No. 2:95-CR-00220-001-TC (D Utah Jan. 11, 2021):

Prisoner Mounir Nafkha moves for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i), asking the court to reduce his nearly 73-year sentence in the custody of the United States Bureau of Prisons (BOP) to time served.  To date, Mr. Nafkha has served approximately 25 years of his sentence. He asserts that the circumstances surrounding his sentence — which consists of four consecutively “stacked” counts under 18 U.S.C. § 924(c) — constitute extraordinary and compelling reasons for his early release.  The court finds that Mr. Nafkha has satisfied his burden of showing extraordinary and compelling reasons to release him and that the balance of sentencing factors set forth in 18 U.S.C. § 3553(a) warrant his release. Accordingly, his motion (ECF No. 214) is GRANTED.

Download Nafkha Grant

Why not a clemency push focused on the (more lethal) new death penalty that is COVID in federal prisons?

I noted in this recent post that group of Democratic members of Congress signed a letter calling upon Prez Biden to "commute the sentences of all those" on federal death row.  I wondered in my post if there might be a less politically controversial group of federal prisonsers who might be a better focal point for the very first clemencies from Prez Biden.  And this new BuzzFeed News piece, which carries the subheadline "In crowded cells, where COVID is running rampant, appeals for clemency for thousands of prisoners have gone unanswered or flat-out rejected," reminded me that Prez Biden might actually save many more lives right away if he were to focus on communiting federal prison sentences for the most vulnerable persons at risk of suffering "the new death penalty" that takes the form of COVID-19.  Here is some contexnt from the BuzzFeed piece: 

For many federal inmates who aren’t politically connected to the president, or state inmates with no sway with their governor, a pardon isn’t just about getting out of prison or having their sentence overturned, it’s literally a case of life and death.  In crowded prisons, with little access to healthcare or the ability to socially distance, COVID-19 cases have exploded, with at least 1 in 5 inmates infected.

A new report from the Prison Policy Initiative found that crowded jails and prisons led to more than half a million additional COVID-19 cases nationwide — or about 1 in 8 of all new cases — over the summer, including cases both inside and outside correctional facilities because the virus spreads via prison workers to the world beyond bars. At least 2,144 inmates and 146 corrections staff have died from the disease, according to data collected by the Marshall Project....

Wanda Bertram, a spokesperson for the nonpartisan Prison Policy Institute, pointed out that people in prison are infected with COVID-19 at a rate four times higher than that of the general population and twice as likely to die from the disease. “What that means is that people who were never sentenced to death are being killed by COVID-19,” Bertram said. “More people have been killed by COVID-19 in prisons than have been killed by the death penalty in like the last few decades, all over the country.”

Bertram pointed to a report published last month showing places with prisons record higher levels of community infection. “This is a tragedy,” she said. “It’s something that governors and the federal government should have been dealing with a long time ago by doing whatever it is that they had to do to get huge numbers of people out.”

The federal Bureau of Prison's COVID-19 page currently reports that there "have been 204 federal inmate deaths ... attributed to COVID-19 disease."  That amounts to more than four times the number of persons on federal death row; in a few older posts here and here, I noted that nearly half of the early reported deaths of federal prisoners involved individuals serving time for drug crimes, and thus crimes much less serious than the aggarvated murders that lead to formal death sentences.   

The Buzzfeed piece rightly notes that "Public officials have been slow to use clemency powers, despite calls from the American Medical Association and other groups to reduce the prison population."  I sure wish a bunch of members of Congress and lots and lots of other folks would focus a push for clemency on the persistent and pressing need to try to depopulate federal prisons in order to reduce the spread and carnage of COVID in federal prisons.

A few of many prior related posts:

• The new death penalty: COVID has now killed in nine months more US prisoners than capital punishment over last 50+ years (from Dec 2020)
• The new death penalty: COVID has now killed more US prisoners than capital punishment over last three decades (from Nov 2020)
• The new death penalty: COVID has now killed as many US prisoners as has a quarter century of capital punishment (from Oct 2020)
• The new death penalty: COVID has now killed more US prisoners in months than the US death penalty has in the last two decades (from Aug 2020)
• The new death penalty: COVID has now killed more US prisoners in weeks than the US death penalty has in over a decade (from May 2020)
• The new death penalty: COVID has now killed more than 500 US prisoners and prison staff according to UCLA Law data (from May 2020)
• The new death penalty: COVID now a leading modern killer of California inmates on death row 
• From drug sentences to death sentences: documenting arbitrary and capricious drug war casualties
• Memorializing more drug war casualties: updating the federal drug sentences that COVID-19 turned into death sentences 

"What a Libertarian Attorney General Could Do"

The title of this post is the title of this new Cato commentary by Clark Neily.  I recommend the whole piece, and here are some excerpts:

Inauguration Week seems like an opportune time to think how much more just the Department of Justice could be if President Biden took the bold step of putting a libertarian in charge of it.  As I've written before, our criminal justice system is fundamentally rotten — it punishes vast amounts of morally blameless conduct, uses coercion-fueled mass adjudication to perpetuate mass incarceration, and insists upon a policy of near-zero accountability for its own transgressions.  Indeed, it is doubtful whether any American institution inflicts more injustice than our so-called criminal "justice" system.

One might argue that because the vast majority of criminal enforcement occurs at the state level there's not much point in focusing on the federal system.  I disagree.  The U.S. Department of Justice looms large over the entire criminal-justice landscape by establishing norms, setting examples, providing oversight, and offering — or withholding — financial incentives to other agencies and jurisdictions.  For better or worse, DOJ represents a kind of industry gold standard for criminal justice.  And that's disturbing because, as discussed below, many of DOJ's standard practices are astonishingly unjust.

DOJ is a sprawling, $30 billion-a-year agency that wears many hats.  Accordingly, it would be impossible to provide a comprehensive list of proposed reforms in a single blog post.  But one of the most consequential things DOJ does — and an area in particular need of fundamental reform — is the enforcement of federal criminal laws.  On that front, a libertarian attorney general would be well-advised to address three specific issues: accountability, prosecutorial tactics, and institutional culture.

1. Accountability.  The lack of accountability among federal prosecutors is simply astonishing.  Perhaps the most stark — but by no means isolated — illustration is the Ted Stevens case, in which prosecutors systematically cheated their way through the prosecution of a sitting U.S. senator, got caught, and were subjected to no meaningful discipline of any kind....

2. Prosecutorial tactics.  Many of the tactics used by DOJ prosecutors — especially to induce people to waive their constitutional right to a jury trial and plead guilty, which more than 90 percent of federal defendants end up doing—are simply shocking....

3. Institutional culture.  A major part of the problem is that people who work within the criminal justice system come to accept as perfectly normal and unobjectionable the kinds of policies and tactics described above, such as letting misbehaving prosecutors off with a slap on the wrist (if that) and applying such extraordinary pressure on defendants to plead guilty that almost no one chooses to exercise their constitutionally guaranteed right to a trial anymore....

The bad news is that our criminal justice system is fundamentally broken and unjust.  The good news is that criminal justice reform represents a vast orchard of low-hanging fruit—policies that could be adopted overnight and would ameliorate some of the system's worst pathologies and realign many of its most perverse incentives.

Maybe putting someone whose core value is liberty in charge of an agency whose core mission is depriving people of it isn't such a crazy idea after all.

37 Democratic member of Congress call on Prez Biden to "commute the sentences of all those" on federal death row

Via this letter, more than three dozen congressional Democrats has urge to communte the federal death sentences of all 49 condemned men on federal death row.  Here are excerpts from the letter:

We write to you today with grave concerns regarding the federal death penalty.  As members of Congress, we stand ready to work with you on your commitment to rebuilding the dignity of America.  We believe that rebuilding the dignity of America requires that we recommit ourselves to the tradition of due process, mercy, and judicial clemency when it comes to matters related to the criminal legal system.  For this reason, we urge you to immediately commute the sentences of all those on death row....

We appreciate your vocal opposition to the death penalty and urge you to take swift, decisive action. After referring to the death penalty as “deeply troubling,” President Obama halted federal executions and commuted the sentences of two federal prisoners on death row.  However, the Obama administration’s reticence to commute more death sentences has allowed the Trump administration to reverse course and pursue a horrifying killing spree over the final seven months of his presidency. Commuting the death sentences of those on death row and ensuring that each person is provided with an adequate and unique re-sentencing process is a crucial first step in remedying this grave injustice....

As President, you can exercise your executive clemency power by commuting the sentences of all those on death row and ensuring a fair re-sentencing process.  This moment demands a series of meaningful actions to ensure that no President can authorize the killing of Americans through the death penalty.  This includes dismantling death row at FCC Terre Haute, and establishing clear executive guidelines prohibiting federal prosecutors from seeking the death penalty.  In addition to those steps, you can call on the U.S. Congress to pass H.R. 262, the Federal Death Penalty Prohibition Act, sponsored by Representative Ayanna Pressley and Senator Dick Durbin, which would end the death penalty once and for all. Until that legislation is law, it is incumbent upon the executive branch to end the barbaric practice of federal executions as quickly as possible.

Beyond the substantive basics of seeking capital commutations for all on federal death row, I find it quite interesting that this letter calls upon Prez Biden to "ensur[e] that each person is provided with an adequate and unique re-sentencing process."  Typically, death row commutations by governors change death sentences to life without parole, and the two federal death sentences commuted by Prez Obama were both turned into LWOP sentences.  But many progressives now view an LWOP sentence as just a functional death sentence by another name, and so it seems these membrs of Congress are eager to have these now condemned men to have a chance to receive sentences less than life.  Relatedly, I am not aware of any commutation that has come with an instruction for a judge to conduct a full resentencing.  But because the clemency power is broad, I presume it would be permissible for a Prez to commute a sentence with these terms. 

As regular readers know, I am eager for any and every president to make regular and robust use of the historic clemency power.  But it might be wiser for the very first clemencies from Prez Biden to involve cases less likely to garner widespread controversy and involving persons who have not committed the most aggravated of crimes.

"Can We Wait 60 Years to Cut the Prison Population in Half?"

The question in the title of this post is the title of this new publication authored by The Sentencing Project's Senior Research Analyst Nazgol Ghandnoosh.  Here is how it gets started:

The U.S. prison population declined 11% in 10 years after reaching an all-time high in 2009.  This modest reduction follows a nearly 700% increase in the prison population between 1972 and 2009.  As of year end 2019, 1.4 million people were in U.S. prisons; an imprisonment rate unmatched worldwide.  At the recent pace of decarceration, it will take nearly six decades to cut the U.S. prison population in half.

This analysis is based on the most recent data from the Bureau of Justice Statistics on people serving sentences greater than one year.  Since the coronavirus pandemic began in 2020, a number of states and the federal system have made additional, albeit limited, reductions in their prison populations.  This analysis underscores the need to reduce unnecessarily high levels of imprisonment amidst a public health crisis and going forward.  Meaningful decarceration, as explained below, requires reducing excessive prison terms for violent convictions.

Some turn-of-the-year highlights from Marijuana Law, Policy & Reform

I have not done a round-up of posts from my blogging over at Marijuana Law, Policy & Reform since early December, and I am especially eager to flag my new article (authored with Alex Kreit), "Ensuring Marijuana Reform Is Effective Criminal Justice Reform."  So here are links to various recent posts at the intersection of criminal justice reform and marijuana reform from MLP&R:

• Catching up on a remarkable political moment for marijuana reform with the help of Marijuana Moment

• Interesting review of the incoming Cabinet with an eye on cannabis policy

• SAM releases notable list of 10 marijuana reform recommendations for the Biden Administration

• Notable NORML accounting of marijuana reform highlights in 2020

• "Illinois Governor Announces Half A Million Marijuana Expungements And Pardons"

• Update on the state of marijuana expungements in the Prairie State

• "How state marijuana legalization became a boon for corruption"

• "Guidance Documents: The Sirens of the Cannabis Odyssey"

• "America’s longest serving nonviolent cannabis prisoner," Richard DeLisi, released from Florida prison

• "Ensuring Marijuana Reform Is Effective Criminal Justice Reform"

Notable OLC opinion on "Home Confinement of Federal Prisoners After the COVID-19 Emergency"

In this post from this past October, I wondered "Will some (most? all?) federal prisoners transferred to home confinement be returned to prison after the pandemic ends?".  That post was prompted by this Walter Palvo piece at Forbes reporting on a US Attorney suggesting that persons who BOP placed on home confinement in response to COVID would be returned to prison after the pandemic ended for any remaining time.  Though the end of the pandemic still seems depressingly far away, the outgoing Trump Justice Department addressed this issue last week when the Office of Legal Counsel put out this opinion titled ""Home Confinement of Federal Prisoners After the COVID-19 Emergency."  Here is how it gets started:

The Federal Bureau of Prisons (“BOP” or “the Bureau”) has statutory authority to place a prisoner serving a term in a federal prison in home confinement for the concluding portion of his sentence. See 18 U.S.C. § 3624(c)(2).  In connection with the COVID-19 pandemic, Congress expanded the authority of the Director of BOP to place federal prisoners in home confinement earlier than that statutory period.  See Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136, § 12003(b)(2), 134 Stat. 281, 516 (2020) (“CARES Act”).  The question is what happens to these prisoners once the pandemic emergency ends.  At that time, some inmates will have completed their sentences or be sufficiently close to the end to be eligible for home confinement.  Other inmates, however, may have a substantial time to go before becoming eligible.  Although the pandemic emergency remains ongoing, the issue arises because BOP must plan for an eventuality where it might need to return a significant number of prisoners to correctional facilities.

We conclude that the CARES Act authorizes the Director of BOP to place prisoners in home confinement only during the statute’s covered emergency period and when the Attorney General finds that the emergency conditions are materially affecting BOP’s functioning.  See id.  Should that period end, or should the Attorney General revoke the finding, the Bureau would be required to recall the prisoners to correctional facilities unless they are otherwise eligible for home confinement under 18 U.S.C. § 3624(c)(2).  We also conclude that the general imprisonment authorities of 18 U.S.C. § 3621(a) and (b) do not supplement the CARES Act authority to authorize home confinement under the Act beyond the limits of section 3624(c)(2).

I had assumed that BOP might have some discretion to keep persons on home confinement whenever we emerged from the pandemic; but this OLC opinion asserts that BOP has no discretion in this matter and thus "would be required to recall the prisoners to correctional facilities unless they are otherwise eligible for home confinement."  This opinion is certain contestable, the new Biden Justice Department could reconsider it and a court might reject it, and we are surely a long ways from reaching a post-pandemic world.  Nevertheless, as FAMM's Kevin Ring explains in this Twitter thread, this OLC opinion could cause lots of heartache and worry for lots of persons on home confinement and their families.

Persons on home confinement are those that BOP generally determined posed little risk to public safety and that were at high risk of COVID and so likely older and less healthy relative to most other prisoners.  And, since the BOP has had discretion to return these persons to prison for misbehavior while in home confinement, it is hard to see a compelling public safety justification for sending all these individuals back to prison post-pandemic.  But if extant law is interpreted to require BOP to recall all these folks, policy arguments alone cannot fix this legal reality.

But even if this particular interpretation of BOP authority under the CARES Act were to persist, there are multiple means to address these matters.  Most obviously, Congress could modify the applicable statutes to clearly give BOP discretion to keep persons on home confinement.  And even without congressional action to address this problem, the other two branches could step in: Prez Biden could grant a kind of conditional clemency and/or district courts could grant compassionate release to keep these folks on home confinement.  Walto Palvo discusses these matters further in this new Forbes piece, which concludes with this fitting sentence: "One thing is for sure, the pandemic is not over but discussions on how to handle inmates currently on home confinement is something that should begin now."

Anyone bold enough to make predictions about the federal prison population — which is now at 151,646 according to BOP?

Regular readers know that I have been following federal prison population data quite closely during the COVID era and giving particular attention to the numbers the federal Bureau of Prisons updates weekly at this webpage.  This morning, which just happens to be the first full day of the new Biden Administration, BOP reports "Total Federal Inmates" at 151,646.  I am very curious to hear predictions as to what this number might be a year from now, or two years from now, or four years from now.

Here is some notable recent historical perspective.  Thanks to the wayback machine, we can see here that during Prez Trump's first week in office in late January 2017, BOP was reporting 189,212 total federal inmates.  Because I cannot find parallel data going back to the Obama inaugural months, I can just link to BOP historical data showing the federal prison population was reported at 201,668 at the end of 2008 and was at 218,687 at the end of 2012.  So, roughly speaking, the federal prison population increased by 17,000 persons during Prez Obama's first term (roughly 8%), and then it declined nearly 20,000 persons during Prez Obama's second term (roughly 9%).  And then the federal prison population decreased by nearly 38,000 persons(!) during Prez Trump's term (nearly 20%).

Gosh knows I would not have predicted that the federal prison population would have increased so significantly during Prez Obama's first term, and I also would not have predicted that this prison population would have decreased so much more significantly during Prez Trump's time in office.  Of course, the unpredictable COVID pandemic is a big part of this Trump era story, but BOP data shows that the federal prison population was declining at a pretty steady clip even in the pre-COVID years of the Trump era despite the fact Trump's Justice Department back in 2017, as noted here, was forecasting prison population increases. 

In short, hindsight shows that the direction of the federal prison population is quite hard to predict.  So, all the more reason for me to want to hear any and all new predictions now.  I am tempted to predict the federal prison population will be relatively steady during the Biden years, at least initially.  Though I would like to see Biden's Justice Department do a lot more to get a lot more vulnerable inmates out of federal prisons, I suspect it may be many months before we see any big DOJ policy changes and likely many more months before any big policy changes start to impact the federal prison population.  (I would love to see the Biden Administration have the gut to set a target of a federal prison population under 100,000, but I will save discussion of that idea for a future post.)

So, dear readers, any federal prison population predictions for the Biden era?

"Prosecutorial Elections: The New Frontline in Criminal Justice Reform"

The title of this post is the title of this great symposium taking place (on Zoom) on February 19, 2021.  The Ohio State Journal of Criminal Law, together with the Drug Enforcement and Policy Center, has put together a series of terrific panels for this event.  This link provides a registration form, and here is schedule for the symposium:

10:30 a.m.-12:00 p.m.: Prosecutor 2.0 — How has the job changed since the emergence of the “progressive prosecution” movement and what impact has this had on campaigns?

• Moderated by:
  • Ric Simmons, Chief Justice Thomas J. Moyer Professor for the Administration of Justice and Rule of Law at The Ohio State University Moritz College of Law
• Panelists:
  • Maybell Romero, Associate Professor of Law at Northern Illinois University College of Law
  • Ronald Wright, Associate Dean for Research and Academic Programs and Needham Yancey Gulley Professor of Criminal Law at Wake Forest University School of Law
  • Carissa Byrne Hessick, Anne Shea Ransdell and William Garland “Buck” Ransdell, Jr. Distinguished Professor of Law at the University of North Carolina School of Law
  • Miriam Krinsky, Executive Director of Fair and Just Prosecution

1:30 p.m.-3:00 p.m.: Prosecutorial Biases as a Catalyst for Systemic Racism — The intersect between prosecutorial discretion, prosecutorial ethics, and racial inequity in criminal justice.

• Moderated by:
  • Amna Akbar, Associate Professor of Law at The Ohio State University Moritz College of Law
• Panelists:
  • Angela J. Davis, Distinguished Professor of Law at American University Washington College of Law
  • Tamara Lawson, Dean and Professor of Law at St. Thomas University School of Law
  • Roger A. Fairfax, Jr., Patricia Roberts Harris Research Professor of Law and Founding Director of the Criminal Law and Policy Initiative at The George Washington University Law School
  • Olwyn Conway, Assistant Clinical Professor of Law at The Ohio State University Moritz College of Law

3:30 p.m.-5:00 p.m.: Prosecutorial Discretion and Drug Reform — The role of prosecutors in perpetuating the War on Drugs and the link to mass incarceration.

• Moderated by:
  • Douglas A. Berman, Newton D. Baker-Baker & Hostetler Chair in Law and Executive Director of the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law
• Panelists:
  • Marilyn J. Mosby, Baltimore City State’s Attorney
  • Kay L. Levine, Professor of Law at Emory University School of Law
  • Alex Kreit, Director of the Center for Addiction Law & Policy and Assistant Professor of Law at Northern Kentucky University Chase College of Law

Timely reminder that Congress has a critical role to play in reforming clemency conditions

Former US pardon attorney Margaret Colgate Love has this great new Washington Post piece highlighting that Congress can and should create statutory record relief mechanisms (as nearly all states have) in order to prevent clemency from serving as the only means for persons with federal criminal records to find relief.  I recommend the piece in full, and here are excerpts:

The core problem that has led to pardon’s abuse is that the justice system has relied too heavily on an authority that is inherently arbitrary and unfair.

Thus, the law makes the president exclusively responsible — through his pardon power — for shortening most federal prison sentences and relieving the collateral consequences of conviction — functions that in most states are now routinely performed by judges and agencies under statutory schemes.  For example, a presidential pardon is the only way a person convicted of a federal felony can qualify for many business and professional licenses, or regain the right to possess firearms.  Indeed, I have been told — and my own practice would confirm — that a desire to regain firearms rights accounts for nearly half of the pardon applications filed.  It is beyond absurd to make the president a one-person gun-licensing bureau for people convicted of nonviolent federal crimes who want to go hunting again....

I do not advocate curtailing the president’s pardon power, and the Biden administration can decide how it wishes to administer that power.  I hope it will restore at least the appearance of fairness and regularity to the way applications from ordinary people are considered (even if the process will continue to function, as it always has, more or less like a lottery)....

The alternative to systematic reliance on pardoning is what Daniel J. Freed described 20 years ago as “the more demanding road toward democratic reform.”  The incoming administration should urge Congress to offload many of pardon’s exclusive functions onto the legal system by enacting robust statutory relief mechanisms, for those in prison and for those who have fully served their sentences, as a majority of states have done in recent years....

In other words, Congress should enact laws to provide alternative ways of handling much of the routine business that is currently overwhelming the pardon process, ideally using the federal courts. It has already begun this work in the 2018 First Step Act, which gives federal prisoners the ability to go back to court to seek reduction of their sentences.

If the pardon process were not bogged down by thousands of petitions from people who simply want to restore lost rights or improve their employment prospects, the president would be free to use the constitutional power in a far more expansive and policy-oriented manner to encourage reform of the justice system, to counter its overreaches and to tell good news about its operation through stories of successful rehabilitation.

In the end, Trump’s abuse of his pardon power could be seen as a blessing in disguise if it provides the opportunity to wean the federal criminal justice system from its dependence upon presidential action for routine relief. Only if freed from its more workaday responsibilities can pardon play the constructive role the Framers intended.

I sense that record relief reform has been a truly bipartisan endeavor in states from coast to coast in reent years. The Biden Administration and members of Congress on both sides of the aisle might be wise to start its criminal justice reform efforts here.

Reviewing some notable data after a notably final clemency flourish by Prez Trump

A few months ago, I noted in this post a Pew Research Center piece, "So far, Trump has granted clemency less frequently than any president in modern history," which assailed then Prez Trump’s "sparse use" of his clemency powers as of Nov 2020.  At that time, I called the Pew piece a bit unfair because it compared Trump's record in his (then-not-complete) first term to mostly two-term Presidents.  I also noted that Prez Trump had already granted more clemencies in his first term than had Prez Obama or Prez George W. Bush at a comparable point in their first terms and that some more clemencies were surely to come.

Sure enough, after a bunch of pre-Christmas grants and a final big group of pardons and commutations, (former) President Trump's clemency record might now be reasonably described as fairly substantial.  Though I wish he had done a lot more, and while I still recall getting way too excited back in 2018 when Prez Trump said he was considering 3000 people for clemency, some basic data make the case for him being a significant user of his clemency powers.  Of course, there are ample grounds for criticizing the substantive decisions and the opaque process surrounding  Prez Trump's use of his historic clemency power.  But reviewing the raw numbers with an eye on the modern history of clemency highlights that it is no longer accurate to even suggest Trump's use of this power was sparse. 

Specifically, according to the data on this Justice Department "Clemency Statistics" page (which seems up-to-date but may be an undercount), Prez Trump is reported to have granted in his four years in the Oval Office a total of 206 clemencies in the form of 117 pardons and 89 commutations.  Even that number (which may be a bit low) amounts to nearly three times as many clemencies as our last one-term president: Prez George H.W. Bush granted only 77 total clemencies during his four years in office.  Indeed, in only one term, Prez Trump's used his clemency pen even more than Prez George W. Bush did over two full terms as he granted only 200 total clemencies during his entire eight years in office.

Given that Prez Trump was often eager to lay claim to a Reagan legacy, it is notable that Prez Trump can lay claim to using his clemency powers more in his first term in office than any president since Ronald Reagan.  As clemency fans may know, Prez Reagan was something of a marker of two different clemency eras: nearly every president before Reagan used his clemency powers more than nearly every president after Reagan (e.g., Prez Nixon alone used his clemency power more in roughly five years than both Prez Bushes and Prez Clinton combined over 20 years).  Prez Barack Obama is the one exception to the ugly modern story of relative clemency disuse because of his remarkable second-term commutation project, but that valuable program was still relatively modest if measured against the massive size of the modern federal prison population.

A focus on commutations makes the clemency record of Prez Trump perhaps especially notable.  Leaving Prez Obama out of the analysis, Prez Trump's 89 commutations amount to more federal prison commutations granted than any other president since Prez Lyndon Johnson and amount to more prison commutations granted than any Republican president since Herbert Hoover!  

Because so much of Prez Trump's early use of his clemency powers was overtly political and/or self-serving, I do not want to be misunderstood as unduly praising how Prez Trump used these critical powers of justice and mercy.  But I do want to strongly embrace the sentiments in this recent Slate commentary and headline: "The Presidential Pardon Power Is Good: Trump abused it, but clemency remains an indispensable tool that should be used more often, not less."  As Mark Joseph Stern put it even before the last round of grants: 

[A] jaundiced view of clemency is understandable.  It is also misguided.  The pardon power exists for a very good reason, and its exploitation at the hands of crooks and con men should not give cause for its eradication.  It is not some obsolete relic from a simpler era, but a vital safeguard against unjust convictions and disproportionate sentences.  The United States’ federal prisons are filled with good citizens who have no business being behind bars.  It is unfortunate that Trump has overlooked these individuals in favor of his vile cronies.  It would be catastrophic if Trump’s actions prevented future presidents from using the pardon power to free the people who actually deserve clemency.

Thankfully, in his final batch of 143 clemencies, the ratio of deserving individuals to cronies seemed a lot better than in early rounds.  Regular readers know I have been advocating for reform of the clemency process for more than a decade, and I hope that becomes the focal point for continued calls for reform.  But imperfect and even poor use of the clemency power still seems to me better than no use at all.  I still wish Prez Trump did a lot more and a lot better with his clemency power, but now it is time to focus on urging Prez Biden to do a lot more and a lot better with this power ASAP.

A few of many recent related posts:

• Two different takes on Prez Trump's clemency record as his term nears conclusion 
• Gearing up for Prez Trump's coming final round of clemency grants 
• Rounding up some notable recent criminal justice commentary
• Noticing the many regular forgotten folk so far left behind in Prez Trump's clemency capers 
• Lots of (surprising and unsurprising) clemency chatter ... and great advocacy for clemency change 
• A challenge for those troubled by Trump's final month clemencies: identify dozens, hundreds of comparable cases for Biden's first month
• Reviewing CJUTF Recommendations: when and how might Biden Administration create an independent clemency board? 

UPDATE:  There is now an updated version of the Pew Research Center piece available here under the headline "Trump used his clemency power sparingly despite a raft of late pardons and commutations."

Reviewing some old but still timely advice for new presidents past

As regular readers know, I have already done a lot of posts on what I and others believe new Prez Biden should be doing to reform our criminal justice systems.  For now, as I watch Prez Biden give his innaugural speech and related festivities, I thought to look back on some blogging in years past when former Prez Obama and former Prez Trump first took office.  Here is a small sampling of posts from January 2009 and from January 2017 that still feel timely:

From Jan 2009:

• Inaugural rhetoric about freedom and liberty in prison nation 
• Is it too early to start demanding President Obama use his clemency power? 
• A great letter urging the USSC to think big in its future work 

From Jan 2017:

• "Dear President Trump: Here’s How to get Right on Crime, Part 1"
• "Dear President Trump: Here’s How to get Right on Crime, Part 2"
• "Dear President Trump: Here’s How to get Right on Crime, Part 3"

Prez Trump grants 73 pardons and 70 commutations in final hours in office

As detailed in this official statement, Prez Trump has "granted pardons to 73 individuals and commuted the sentences of an additional 70 individuals."  The list of recipients strikes me as notably diverse, with some well-known names sure to cause controversy (e.g., Steve Bannon) as well as plenty of lesser-known individuals.  Here are just a few on the names on the list catching my eye upon first review: 

John Knock – President Trump commuted the sentence of John Knock.  This commutation is supported by his family.  Mr. Knock is a 73 year-old man, a first-time, non-violent marijuana only offender, who has served 24 years of a life sentence....

Michael Pelletier – President Trump commuted the sentence of Michael Pelletier.  Mr. Pelletier is a 64 year-old who has served 12 years of a 30 year sentence for conspiracy to distribute marijuana....

Craig Cesal – President Trump commuted the sentence of Craig Cesal.  Mr. Cesal is a father of two, one of whom unfortunately passed away while he was serving his life sentence for conspiracy to distribute marijuana....

Chalana McFarland – President Trump commuted the sentence of Chalana McFarland.  Ms. McFarland has served 15 years of a 30-year sentence....

Chris Young – President Trump commuted the remaining sentence of Chris Young.  This commutation is supported by the Honorable Kevin H. Sharp, Mr. Young’s sentencing judge, former law enforcement officials and Federal prosecutors, and multitudes of criminal justice reform advocates....

Amy Povah – President Trump granted a full pardon to Amy Povah, the founder of the CAN-DO (Clemency for All Non-violent Drug Offenders) Foundation.  In the 1990s, Ms. Povah served 9 years of a 24 year sentence for a drug offense before President Clinton commuted her remaining prison sentence in 2000.  Since her release, she has become a voice for the incarcerated, a champion for criminal justice reform, and was a strong advocate for the passage of the First Step Act....

Kwame Kilpatrick – President Trump commuted the sentence of the former Mayor of Detroit, Kwame Malik Kilpatrick. This commutation is strongly supported by prominent members of the Detroit community, Alveda King, Alice Johnson, Diamond and Silk, Pastor Paula White, Peter Karmanos, Representative Sherry Gay-Dagnogo of the Michigan House of Representatives, Representative Karen Whitsett of the Michigan House of Representatives, and more than 30 faith leaders....

Dwayne Michael Carter Jr. – President Trump granted a full pardon to Dwayne Michael Carter Jr., also known as “Lil Wayne.”  Mr. Carter pled guilty to possession of a firearm and ammunition by a convicted felon, owing to a conviction over 10 years ago....

Shalom Weiss – President Trump commuted the sentence of Shalom Weiss.  This commutation is supported by former U.S. Attorney General Edwin Meese, former Solicitors General Ken Starr and Seth Waxman, former United States Representative Bob Barr, numerous members of the New York legislature, notable legal figures such as Professor Alan Dershowitz and Jay Sekulow, former U.S. Attorney Brett Tolman, and various other former elected officials. 

There are many more notable names on this last big clemency list, and it certainly seems like there are many more deserving cases than undeserving ones this time around.  I expect we will be hearing a lot more about some of these recipients, both good and bad, in the days ahead.  But because thislist maeks the end of the Trump term, it is now time to turn to urging the Biden Administration to do more and more grants and to adopt a new and improved clemency process.

Intriguing (and significant?) executive order from Prez Trump on "Protecting Americans From Overcriminalization Through Regulatory Reform"

I just saw this new federal Executive Order which was issued yesterday, January 18, 2021, by Prez Trump titled "Executive Order on Protecting Americans From Overcriminalization Through Regulatory Reform."  Here are the main operational sections of the order:

By the authority vested in me as President by the Constitution and the laws of the United States of America, and to improve transparency with respect to the consequences of violating certain regulations and to protect Americans from facing unwarranted criminal punishment for unintentional violations of regulations, it is hereby ordered as follows:

Section 1. Purpose. In the interest of fairness, Federal criminal law should be clearly written so that all Americans can understand what is prohibited and act accordingly. Some statutes have authorized executive branch agencies to promulgate thousands of regulations, creating a thicket of requirements that can be difficult to navigate, and many of these regulations are enforceable through criminal processes and penalties. The purpose of this order is to alleviate regulatory burdens on Americans by ensuring that they have notice of potential criminal liability for violations of regulations and by focusing criminal enforcement of regulatory offenses on the most culpable individuals.

Sec. 2. Policy. It is the policy of the Federal Government that:

(a) Agencies promulgating regulations that may subject a violator to criminal penalties should be explicit about what conduct is subject to criminal penalties and the mens rea standard applicable to those offenses;

(b) Strict liability offenses are “generally disfavored.” United States v. United States Gypsum, Co., 438 U.S. 422, 438 (1978). Where appropriate, agencies should consider administrative or civil enforcement of strict liability regulatory offenses, rather than criminal enforcement of such offenses; and

(c) Criminal prosecution based on regulatory offenses is most appropriate for those persons who know what is prohibited or required by the regulation and choose not to comply, thereby causing or risking substantial public harm. Criminal prosecutions based on regulatory offenses should focus on matters where a putative defendant had actual or constructive knowledge that conduct was prohibited....

Sec. 5. Agency Referrals for Potential Criminal Enforcement. (a) Within 45 days of the date of this order, and in consultation with the Department of Justice, each agency should publish guidance in the Federal Register describing its plan to administratively address regulatory offenses subject to potential criminal liability rather than refer those offenses to the Department of Justice for criminal enforcement.

As regular readers likely know, lots of folks have long been concerned about federal "overcriminalization."  For many years across multiple administrations, public policy groups on both the left and the right have advocated for mens rea reforms and other tools to limit undue criminal liability for regulatory offenses.  Against that backdrop, I find it especially intriguing and ultimately puzzling that Prez Trump's last Executive Order during his last week in office would seek to address these issues.  Because I am not an expert in this space, I am not sure if this is a significant EO, but I am eager to hear from anyone who thinks it might be.

UPDATE: I now see that the Heritage Foundation has this new short commentary on this Executive Order under the headline "Trump Delivers Long-Awaited Triumph for Criminal Justice Reform in Last-Minute Executive Order."  Here is a snippet from the commentary with lots of links:

The executive order is designed to “protect Americans from facing unwarranted criminal punishment for unintentional violations of regulations.”  

It recognizes what scholars from both sides of the political aisle have observed for decades: that federal criminal law is far-reaching, unintuitive, and difficult to understand. The National Association of Criminal Defense Lawyers, the American Civil Liberties Union, The Charles Koch Foundation, The Heritage Foundation, The American Conservative Union, and many other groups have been advocating that the government clear up this tangled web of criminal laws because, as the executive order acknowledges, most Americans cannot reasonably understand what the law demands of them. And even accidental violations of arcane regulations can land them in prison.  

This isn’t hypothetical. The National Association of Criminal Defense Lawyers keeps a database of Americans who have been criminally punished for violating obscure regulatory laws.  

Some news and notes and rulings on federal compassionate release

I know that lots of people are eagerly awaiting the reported forthcoming list of clemency grants from Prez Trump on his last full day in office (including, it seems, Joe Exotic).  As we wait, I have noticed a number of recent pieces about so-called compassionate relief motions in the federal system, a mechanism which serves as a means now for federal judges to modify the prison sentences of some federal prisoners.  Here is a round up of some of these new pieces, included a few discussing grants and denials of compassionate release to notable individuals:

From Law360, "Pandemic Is Changing Compassionate Release Calculus"

From Colorado Politics, "Federal judges in Colorado denied overwhelming majority of requests to release inmates for COVID-19"

From Uerweb, "Bill Underwood is FREE! Former Music Exec Granted Compassionate Release from Prison After 33 Years"

From the AP, "Jailed kids-for-cash judge loses bid for pandemic release"

From Reuters, "U.S. judge rejects 'Pharma Bro' Shkreli's bid for compassionate release from prison"

"Reimagining the Death Penalty: Targeting Christians, Conservatives"

The title of this post is the title of this recent paper by SpearIt that is available via SSRN. Though posted a few months ago, I just came across the paper and it certainly remains timely.  Here is its abstract:

This Article is an interdisciplinary response to an entrenched legal and cultural problem.  It incorporates legal analysis, religious study and the anthropological notion of “culture work” to consider death penalty abolitionism and prospects for abolishing the death penalty in the United States.  The Article argues that abolitionists must reimagine their audiences and repackage their message for broader social consumption, particularly for Christian and conservative audiences. Even though abolitionists are characterized by some as “bleeding heart” liberals, this is not an accurate portrayal of how the death penalty maps across the political spectrum.  Abolitionists must learn that conservatives are potential allies in the struggle, who share overlapping ideologies and goals.  The same holds true for Christians — there is much in the teachings of Jesus to suggest that he aligned more with forgiveness than capital retribution.  As such, abolitionists would do well to focus on these demographics more earnestly than in the past.  The notion of “culture work” underscores these groups as natural allies in the quest to end the death penalty.

Hoping for a lot more "regular" folks on Prez Trump's coming final clemency list

CNN has this big new piece about Prez Trump's clemency plans under the headline "Trump to issue around 100 pardons and commutations Tuesday, sources say."  There is a lot of interesting reporting in this piece, and here are excerpts:

President Donald Trump is preparing to issue around 100 pardons and commutations on his final full day in office Tuesday, according to three people familiar with the matter, a major batch of clemency actions that includes white collar criminals, high-profile rappers and others but -- as of now -- is not expected to include Trump himself.

The White House held a meeting on Sunday to finalize the list of pardons, two sources said.

Trump, who had been rolling out pardons and commutations at a steady clip ahead of Christmas, had put a pause on them in the days leading up to and directly after the January 6 riots at the US Capitol, according to officials. Aides said Trump was singularly focused on the Electoral College count in the days ahead of time, precluding him for making final decisions on pardons. White House officials had expected them to resume after January 6, but Trump retreated after he was blamed for inciting the riots.

Initially, two major batches had been ready to roll out, one at the end of last week and one on Tuesday. Now, officials expect the last batch to be the only one -- unless Trump decides at the last minute to grant pardons to controversial allies, members of his family or himself.

The final batch of clemency actions is expected to include a mix of criminal justice reform-minded pardons and more controversial ones secured or doled out to political allies....

The January 6 riots that led to Trump's second impeachment have complicated his desire to pardon himself, his kids and personal lawyer Rudy Giuliani. At this point, aides do not think he will do so, but caution only Trump knows what he will do with his last bit of presidential power before he is officially out of office at noon on January 20....

Other attention-grabbing names, like Julian Assange, are also not currently believed to among the people receiving pardons, but the list is still fluid and that could change, too. It's also not certain whether Trump's former adviser Steve Bannon will receive a pardon....

The expectation among allies is that Trump will issue pardons that he could benefit from post presidency. "Everything is a transaction. He likes pardons because it is unilateral. And he likes doing favors for people he thinks will owe him," one source familiar with the matter said....

Inside the White House, there has been a scramble to petition for pardons on behalf of allies and advocacy groups and names could be added and taken off up until the last minute, sources say.  CNN previously reported there has been a crush of pardon requests during Trump's final days in office from allies, lobbyists and others hoping to cash in on their loyalty to Trump.  The New York Times reported Sunday some of those people were getting paid tens of thousands of dollars to lobby on behalf of felons hoping for pardons.

Regular readers know I have been hoping Prez Trump in his final days in office might make regular use of his clemency power to give relief to the many regular people who ought to benefit from executive relief in the form of a commutation and/or pardon.  But, perhaps unsurprisingly, it seems his ugly efforts to contest the election results and the additional ugliness he inspired on January 6 kept him from giving sustained attention to his last meaningful opportunity to use his presidential powers in a potent way.  Prez Trump often claimed to be concerned with "forgotten" Americans.  Federal prisoners without celebrity status or famous advocates are surely among those forgotten, and they are now enduring an extended lock-down thanks to Prez Trump's "stop the steal" shenanigans.  I sure hope more than a few of these forgotten folks make the final clemency cut.

Barring a pleasant surprise from the final round of grants, it seems likely that Prez Trump's clemency legacy will have been to demonstrate how this historic constitutional power can be used primarily to garner attention and score political points rather than to actually do justice or show mercy.  That said, despite some crass cases, Prez Trump has already issued at least a few grants that, as I see it, did effectively advance justice and/or show mercy.  (The Alice Marie Johnson case is most obvious, but I count a few dozen others.)  I hope we see a final Trumpian flourish in the spirit of justice and mercy, and I hope the momentum for clemency reform continues to advance some structural reforms in the next administration that could improve clemency decision-making and the advancement of justice and mercy for many years to come.

A few recent related posts:

• Gearing up for Prez Trump's coming final round of clemency grants 
• Rounding up some notable recent criminal justice commentary
• Noticing the many regular forgotten folk so far left behind in Prez Trump's clemency capers 
• Lots of (surprising and unsurprising) clemency chatter ... and great advocacy for clemency change 
• Might Prez Trump announce his next round of clemency grants this weekend? |
• A challenge for those troubled by Trump's final month clemencies: identify dozens, hundreds of comparable cases for Biden's first month
• Reviewing CJUTF Recommendations: when and how might Biden Administration create an independent clemency board? 

Lots of notable death penalty stories at the state, federal and international level

While the execution spree conducted in the last six months of the Trump Administration has justifiably garnered a lot of attention from the press and others, I have noticed in recent days a number of notable new capital headlines that go beyond just federal death penalty stories.  In an effort to cover a lot of ground, here is a round-up with links:

From Bloomberg, "Boston Marathon Bomber Appeal Is Early Biden Test on Death Penalty"

From Equal Justice Initiative, "Dr. Martin Luther King’s Moral Opposition to the Death Penalty"

From the Gazette, "Bill that would reinstate limited death penalty advances in Iowa Senate"

From NBC News, "'This is not justice': Justice Sonia Sotomayor offers fierce dissent in death penalty case"

From the Richmond Times-Dispatch, "Virginia Senate committee backs bill to abolish the death penalty"

From Salon, "Amid Trump killing spree, MLK's family joins chorus demanding: 'Abolish the death penalty'"

From the San Francisco Chronicle, "Biden campaigned on eliminating death penalty — we could soon see how that turns out"

From the Washington Post, "Saudi Arabia says it executed 27 people in 2020, the lowest number in years, rights groups say"