Sentencing Law and Policy

Pope Francis speaking out again on behalf of "our brothers and our sisters who are in prison"

This new AP article, headlined "Pope on prisons: No inmate should ever be deprived of hope," reports on some of the latest comments from Pope Francis about prisons and prisoners.  Here are the highlights along with some Italian backstory that may account for the pope's latest remarks:

Pope Francis issued a plea on behalf of prison inmates Wednesday, saying they should never be deprived of hope and always be given the opportunity to redeem themselves.

In remarks at his weekly public audience at the Vatican, Francis told the faithful that “we risk being imprisoned in a justice that doesn’t allow one to easily get back up again and confuses redemption with punishment.”

“For this, I want to recall today in a particular way our brothers and our sisters who are in prison,” the pontiff said. “It’s right that those who have made a mistake pay for their mistake, but it’s even more right that those who have done wrong should be able to redeem oneself from their mistake. There can’t be sentences without windows of hope.’’

Francis didn’t cite the prison policies or justice systems of any particular countries as problematic. Catholic teaching holds that the death penalty has no justification in modern society. During his papacy, Francis has made attention to the needs of communities on society’s margins, including prison populations, a priority.

“Let’s think of our incarcerated brothers and sisters, and let’s think about the tenderness of God for them and pray for them so that they may find in that window of hope a way out toward a better life,” Francis said in concluding his remarks Wednesday.

Italy’s justice minister, while briefing lawmakers in Parliament on criminal justice reform Wednesday, decried overcrowding in the country’s prisons, describing it as the most serious of all the problems plaguing the penal system.  Justice Minister Marta Cartabia said Italy’s prisons were 14% overcrowded. “It’s a condition that aggravates the relationships among inmates and which makes the work of prison personnel, often victims of aggression, even more difficult,” she said. “Overcrowding means greater difficulty in guaranteeing security and greater difficulty in proposing activities that facilitate paths to rehabilitation.”

Cartabia said reforms were under way to allow for sentences that provide alternatives to prison. But she noted that 69,000 persons are already serving their sentences outside prison walls, compared to some 54,000 inmates in Italy’s criminal justice system.

Notably, the United States has about 5 times the population of Italy, but has about 25 times as many prisoners.  According to this site, the US violent crime rate and murder rate is also five times the rate in Italy.

A few prior related posts about Pope Francis'  "sentencing advocacy":

• Pope Francis, speaking to Congress, urges abolishing death penalty (and LWOP)
• Pope Francis categorically condemns death penalty as "inadmissible" in today's world 
• Papal prison priorities: "to care for wounds, to soothe pain, to offer new possibilities" 
• Pope Francis now advocating for total abolition of LWOP sentences as well as the death penalty 
• Pope Francis' new encyclical clearly condemns the death penalty (as well as life imprisonment)

Guest posts on big Seventh Circuit Wilks decision on Bail Reform Act’s "presumption of detention"

I hope readers recall the series of guest 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."  Not too long ago, Alison wrote to me to highlight a big new Seventh Circuit ruling on the Bail Reform Act that related to another focus of her work.  I suggested that she do another guest post series on the ruling because this was a legal space I know little about.  She has prepared two long posts on the topic, and here is the first:

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GUEST BLOG POSTS RE WILKS AND THE PRESUMPTION OF DETENTION by ALISON SIEGLER

PART I

This is the first of two guest posts discussing a groundbreaking opinion that addresses the Bail Reform Act’s “presumption of detention.”

The BRA’s presumption of detention applies to “nearly half of all federal criminal cases and to 93 percent of all drug cases.” Alison Siegler & Erica Zunkel, Rethinking Federal Bail Advocacy to Change the Culture of Detention, THE CHAMPION 46, 50 (July 2020); 18 U.S.C. § 3142(e)(2)–(3). The most common types of cases in which the presumption applies are drug cases, § 924(c) gun cases, and minor victim cases. A study from the Administrative Office of the United States Courts finds that the “presumption of detention . . . is driving high federal detention rates,” and that in practice, the presumption “has become an almost de facto detention order.” Amaryllis Austin, The Presumption for Detention Statute’s Relationship to Release Rates, 81 FED. PROBATION 52, 56, 61 (2017).  The same study found that “the presumption increases the detention rate without advancing community safety. Rather than jailing only the worst of the worst, the presumption over-incarcerates the lowest-risk offenders in the system.” Siegler & Zunkel, supra, at 50 (citing Austin, supra, at 57). “Now, with the presumption as a driving force, federal pretrial detention rates have skyrocketed, with three in four people jailed before trial — a 75 percent detention rate that falls disproportionately on people of color. This is mass incarceration in action.” Alison Siegler & Kate Harris, How Did the Worst of the Worst Become 3 Out of 4?, N.Y. TIMES (Feb. 24, 2021).  Courts often assume that the presumption ties their hands, and defense attorneys sometimes waive the right to seek release in presumption cases because challenging pretrial detention feels futile.

An important recent Seventh Circuit opinion reminds us that is not how the presumption is supposed to operate as a matter of law. United States v. Wilks, 15 F.4th 842, 844 (7th Cir. 2021) (reversing a district court’s revocation of pretrial release because “the judge did not hew to the statutory framework in making the revocation decision”). Wilks illuminates the operation of the presumption in a way that enables lawyers to push back on the presumption’s worst manifestations.

Wilks clarifies numerous key aspects of the limits of the § 3142(e) presumption of detention.

First, even when a presumption of detention is triggered, “the burden of persuasion always rests with the government.” Wilks, 15 F.4th at 846–47.

• Even in a presumption case, the defense never bears the ultimate burden of persuasion or proof. That is, the defense never has to persuade the judge that there exist conditions of release that will reasonably assure his or her appearance and the safety of the community.  See 50 GEO. L.J. ANN. REV. CRIM. PROC. 404 (2021) (“The presumptions of detention shift the burden of production to the defendant, but the government retains the burden of persuasion.”).
• Rather, the burden of persuading the judge that no conditions of release exist that will reasonably assure the accused’s appearance and the safety of the community continues to rest at all times with the government, despite the presence of the presumption. See Wilks, 15 F.4th at 846–47; see also Dominguez, 783 F.2d at 707 (“[T]he burden of persuasion remains with the government” at all times and never shifts to the defense); Jessup, 757 F.2d at 381 (“[T]he burden of persuasion does not shift.”); Alatishe, 768 F.2d at 254 (“[I]t [i]s not the responsibility of the [defendant] to carry the Government’s burden of proof or persuasion.”).

Second, the presumption is intended to be easy to rebut. See 18 U.S.C. § 3142(e)(3) (“Subject to rebuttal by the person . . .”); see also Wilks, 15 F.4th at 846 (“A defendant charged with a serious drug crime . . . is subject to a rebuttable presumption.”).

• Rebuttal, in theory, should be exceedingly easy, as the presumption “places a light burden of production on the defendant” to rebut the presumption. Wilks, 15 F.4th at 846 (emphasis added); see also United States v. Dominguez, 783 F.2d 702, 707 (7th Cir. 1986) (“The burden of production is not a heavy one to meet.”); United States v. Jessup, 757 F.2d 378, 380–84 (1st Cir. 1985) (holding that to meet the burden of production required for rebuttal, the defendant need only produce “some evidence” under § 3142(g)); United States v. Chimurenga, 760 F.2d 400, 405 (2d Cir. 1985) (same); United States v. Alatishe, 768 F.2d 364, 371 (D.C. Cir. 1985) (same); 50 GEO. L.J. ANN. REV. CRIM. PROC., supra, at 404 (“Once defendants ‘[come] forward with some evidence that [they] will not flee or endanger the community if released,’ the presumption of flight risk and dangerousness is rebutted.” (quoting Dominguez, 983 F.3d at 707) (bracketed alteration in original)).
• The defense rebuts the presumption and meets its burden of production by presenting “some evidence” related to the § 3142(g) factors, including any “evidence of economic and social stability.” Dominguez, 783 F.2d at 707; see also Siegler & Zunkel, supra, at 52 & n.110 (collecting cases). “Once this burden of production is met, the presumption is ‘rebutted.’” Dominguez, 783 F.2d at 707.
• Any evidence under § 3142(g) rebuts the presumption! If a judge finds otherwise, that violates the statute and caselaw.
  • Examples in Dominguez of the kind of evidence that rebuts the presumption include “evidence of their marital, family and employment status, ties to and role in the community, clean criminal record and other types of evidence encompassed in § 3142(g)(3).” Dominguez, 783 F.2d at 707; see also Jessup, 757 F.2d at 384.
• The defense does not have to “‘rebut’ the government’s showing of probable cause to believe that [the accused] is guilty of the crimes charged,” nor do they have to “demonstrate that [the type of crime charged] is not dangerous to the community.” Dominguez, 783 F.2d at 706.
  • For example, someone charged in a drug case or a § 924(c) gun case does not have to prove that distributing drugs or possessing a firearm is not dangerous.

Third, “an unrebutted presumption is not, by itself, an adequate reason to order detention. Rather, the presumption is considered together with the factors listed in § 3142(g).” Wilks, 15 F.4th at 847 (citation omitted).

• This is a hugely important statement of the law.  Very few judges and practitioners understand this.  Even if the defense does not carry its light burden of production by not coming forward with some evidence under § 3142(g) that rebuts the presumption, that lack of rebuttal does not, standing alone, authorize detention in a presumption case.  The government continues to bear the “burden to justify detention” by establishing that there are no conditions of release that will reasonably assure the accused’s appearance and the safety of the community. Id.  And the judge must still analyze all of the factors listed in § 3142(g) in determining whether the government has met that burden.
• Whether or not the defense rebuts the presumption, the ultimate burden of persuasion and proof always rests with the government to justify detention and to establish that there are no conditions short of detention that will reasonably assure the accused’s appearance in court and the safety of the community.  See GEO L.J., supra, at 404 (“Even when a presumption of detention applies, the government continues to bear the ultimate burden of proving that no conditions of release will reasonably assure the defendant’s appearance and the safety of the community.”). If the government does not carry that burden, the law requires the judge to release the accused on bond.
  • Even if the presumption is unrebutted, “[i]f the government does not carry its burden to justify detention, the judge must order the defendant’s release pending trial subject to the least restrictive combination of conditions that will reasonably assure his appearance and the safety of the community. 18 U.S.C. § 3142(c)(1)(B).” Id.
  • See also Chimurenga, 760 F.2d at 405, 403 (holding that even in a presumption case, “the government continue[s] to have the burden to prove by clear and convincing evidence that [the defendant is] dangerous” and that there are no conditions that will reasonably assure their appearance and the safety of the community despite all of the evidence of social stability the defendant presents); United States v. Munchel, 991 F.3d 1273, 1289 (D.C. Cir. 2021) (Katsas, J., concurring in part) (clear and convincing evidence is “a heightened standard of proof under which the fact finder must ‘give the benefit of the doubt to the defendant.’” (citation omitted)).
• In fact, if the judge shifts the burden of persuasion to the accused, that arguably violates due process because the constitutionality of the presumption depends in part on the fact that the defense does not bear the burden of proving that the accused is not a danger or a flight risk. See, e.g., Jessup, 757 F.2d at 386 (“Given [inter alia] . . . the fact that the presumption does not shift the burden of persuasion, . . . the presumption’s restrictions on the defendant’s liberty are constitutionally permissible.”). The canon of constitutional avoidance thus strongly militates in favor of the Wilks court’s interpretation of this meaning of the presumption.

Fourth, once the presumption is rebutted, it carries a lot less weight.

• The rebutted presumption remains in consideration but is just one factor among many. “While the rebutted presumption does not disappear, a judge must weigh it against all of the mitigating evidence that the defense presents, and assign it no more weight than any other § 3142 factor.” Siegler & Zunkel, supra, at 52 (citing Jessup, 757 F.2d at 384).
• When the defense rebuts the presumption, it has demonstrated that the general purpose animating the presumption is inapplicable in that particular case. So even if drug offenses in general raise a presumption of dangerousness, someone who has rebutted the presumption has introduced evidence that his or her own personal risk of continuing to sell drugs is lower.

SCOTUS to hear argument over terms of crack offense resentencing under FIRST STEP Act

The Supreme Court will be hearing oral argument on Wednesday morning in Concepcion v. US, No. 20-1650, which presents the following sentencing issue as phrased by the petitioner in this brief:

Whether, when deciding if it should “impose a reduced sentence” on an individual under section 404(b) of the First Step Act of 2018, 21 U.S.C. § 841 note, a district court must or may consider intervening legal and factual developments.

The Government articulates the issues somewhat differently in its brief:

Whether a district court is required to consider all legal and factual developments occurring after an offender’s original sentencing — whether or not related to the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 — in connection with a motion for a reduced sentence under Section 404 of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5222.

I was happy to be able to join this law professors' amicus brief which stresses the centrality of the 3553(a) factors at federal sentencing, which calls for analysis of all relevant considerations at initial sentencings and at any resentencings.

Helpful FAMM "Explainer" talks through DOJ rule for implementing earned time credits under FIRST STEP Act

As noted in this prior post, last week the Department of Justice announced its new rule for "implementing the Time Credits program required by the First Step Act."  Because this rule is to be applied retroactively and enables perhaps half of all current (and future) federal prisons to earn early release, it is a very big deal while also having lots and lots complicated implementation intricacies.  Helpfully, FAMM has this helpful new four-page document titled "First Step Act Earned Time Credits Rule Explainer," which starts this way:

On January 13, 2022, the BOP published a rule implementing the Earned Time Credits that were included in the First Step Act. There are a lot of questions about the rule, many of which this Explainer attempts to answer.  There is still much to learn, however, and we will continue to update this Explainer as we learn more.  Please understand that we cannot answer your questions about whether you or your loved one is eligible for credits toward pre-release custody or supervised release, among other things. 

Here are some of the essentials from the document provide a window into just some of the particulars:

Who is eligible to apply FSA Time Credits toward pre-release custody or supervised release?

• People in BOP custody (including those in a halfway house or on home confinement);
• who are serving a federal sentence;
• who have successfully participated in Evidence-Based Recidivism Reducing Programs (EBRR or Programs) or Productive Activities (PA); 
• who have been assessed as “minimum” or “low” risk for at least one assessment or who can obtain warden approval; and
• who have earned credits equal to the remainder of their prison term.

Who is barred from either earning FSA Time Credits or applying those credits toward pre-release custody?

• People serving sentences for convictions under state or District of Columbia law, or who have a final order of removal under immigration law, cannot apply credit toward pre-release custody or supervised release.
• People serving a sentence for a conviction the First Step Act identifies as disqualifying cannot earn credit. In limited circumstances, certain prior convictions may also prohibit one from earning credit....

What do earned FSA Time Credits do?

• Eligible people who have earned FSA Time Credits may have them applied toward pre-release custody (halfway house or home confinement transfers) or early transfer to supervised release (essentially shortening the sentence).
• Transfer to supervised release is limited to one year, but people may be transferred to pre-release custody earlier

Prior related post:

• Thousands of federal prisoners finally to get FIRST STEP Act credits as DOJ implements earned time rules

How about passing the EQUAL Act so we can be "free at last" from the crack/powder sentencing disparity?

On MLK day, I have a tradition of making time to listen to the full "I Have A Dream" speech by Dr. King, which always delivers and always has its own unique power each and every listen.  In recent years, I have also used this day to explore Stanford University's awesome collection of MLK Papers; in posts linked below, I have quoted from various renown speeches and writings with an emphasis on the intersection of the civil rights movement and criminal justice reform.  But this recent news item from Wyoming has me today focused on a specific policy ask for advancing freedom and racial justice:

U.S. Sen. Cynthia Lummis, R-Wyo., became the seventh Republican co-sponsor of the EQUAL Act on Friday, which would fully and finally eliminate the federal sentencing disparity between crack and powder cocaine.

The two substances are virtually identical and equally dangerous, and yet crack carries a penalty that is 18 times that of powder cocaine, according to a news release. The bill passed in the House of Representatives by a margin of 361-66, including 143 Republicans.

Lummis joined Republican Sens. Rob Portman, R-Ohio; Rand Paul, R-Ky.; Thom Tillis, R-N.C.; Lindsey Graham, R-S.C.; Lisa Murkowski, R-Alaska, and Susan Collins, R-Maine, as co-sponsors. Advocates from across the political spectrum said the addition of Lummis is a clear indication that the EQUAL Act has the momentum needed to pass the Senate....

The EQUAL Act has support from groups across the political spectrum, including the Major Cities Chiefs Association, National District Attorneys Association, Americans for Tax Reform, Association of Prosecuting Attorneys, Prison Fellowship, Due Process Institute, Americans for Prosperity, FAMM, Catholic Prison Ministries Coalition, Faith and Freedom Coalition, ALEC Action, R Street Institute, FreedomWorks and Taxpayers Protection Alliance.

With seven notable and diverse GOP senators serving now serving as co-sponsors for the EQUAL Act, I have to believe this bill could easily overcome any filibuster efforts and secure passage on the floor of the Senate (likely by the 5 to 1 margin that it secured passage in the House).  So why is this not getting done ASAP?  To its credit, the Biden Administration has testified in support of the EQUAL Act in the US Senate, but I have not heard Prez Biden himself (or VP Harris) lean into this issue at all.  (Notably, if they want to focus on voting rights as a focal point for civil rights advocacy, they might also really advance the MLK legacy by taking on felony disenfranchisement.  Moreover, they should try to get bipartisan bills like the EQUAL Act passed into law so that people who care about criminal justice reform can better understand why they should bother to vote at all.)  

In part because US Sentencing Commission data reveal that "only" 1,217 persons were sentenced on crack trafficking offenses in FY 2020, which accounts for "only" 7.5% of all offenders sentenced for drug trafficking offenses, the import and impact of the EQUAL Act would not be as huge now as it might have been in years past.  (In FY 2009, just before the Fair Sentencing Act of 2010 reduced the crack/powder disparity from 100-1 to 18-1, there were over 5,000 persons sentenced on crack offenses; indeed, more than 5,000 persons were sentenced each year on federal crack offenses through most of the 2000s.)  Still, the USSC 2020 data show that over 93% of those sentenced for federal crack offenses are persons of color (with 77% black), so that there is still a profound inequitable impact from our federal sentencing scheme that still unfairly treats crack offenses as much more serious than functionally comparable powder offenses.

Links to some prior MLK Day posts:

• Should criminal justice reform be the new civil rights movement?
• Honoring MLK by asking hard questions
• Reflecting on race and criminal justice realities to honor MLK's legacy
• Another reminder of race and criminal justice realities to honor MLK's legacy
• NPR's Fresh Air celebrates MLK Day by discussing The New Jim Crow
• Some still timely phrases from MLK's "I Have A Dream" speech for advocates of criminal justice reforms 
• Some new quotes at the end of the latest MLK day
• What might Martin Luther King seek as the next step in federal criminal justice reform? 
• Remembering and honoring the (always timely) poignancy of the great words of Dr. Martin Luther King 

A few related posts on the EQUAL Act:

• An initial list of federal sentencing reforms to advance greater equity and justice for congressional consideration
• New efforts to fix the ugly old problem of sentencing disparity for federal crack and powder cocaine offenses 
• GOP Gov and former DEA chief calls for Congress to "finally and fully end the disparity between crack and cocaine offenses" 
• Depressing (and abridged) FSR reminder of just how long we have known crack sentences are especially whack 
• US House votes 361-66 to pass today the EQUAL Act to end disparity between powder and crack cocaine sentences
• After an overwhelming majority of GOP House delegation voted for EQUAL Act, can the Senate move quickly to finally right a 35-year wrong? 
• Shouldn't federal prosecutors already be doing what they can to minimize the unjust crack-powder sentencing disparity? 
• Is it foolish to hope, after now 35 years, that Congress will soon fix the crack-powder federal sentencing disparity? 

Latest issue of Dædalus explores "Reimagining Justice: The Challenges of Violence & Punitive Excess"

The Winter 2022 issue of the journal Dædalus has a series of essay on the topic of "Reimagining Justice: The Challenges of Violence & Punitive Excess."  Here is the issue's introduction from this issue page and a listing of the article titles and authors:

America has the highest incarceration rate in the world. Criminal justice policies of punitive excess and unequal protection under the law have sustained racial exclusion and added to the harsh conditions of poverty.  The Winter 2022 issue demands that we imagine a different kind of public safety that relies not on police and prisons, but on a rich community life that has eliminated racism and poverty.  Many of the solutions will lie beyond the boundaries of the criminal justice system and public policy, yet much of the work is already being done in communities around the country. And these efforts share, as the essays in this issue suggest, a common commitment to the values of healing, reconciliation, and human dignity.

Violence, Criminalization & Punitive Excess by Bruce Western and Sukyi McMahon

The Story of Violence in America by Kellie Carter Jackson

The Problem of State Violence by Paul Butler

Public Health Approaches to Reducing Community Gun Violence by Daniel W. Webster

Seeing Guns to See Urban Violence: Racial Inequality & Neighborhood Context by David M. Hureau

Developmental & Ecological Perspective on the Intergenerational Transmission of Trauma & Violence by Micere Keels

The Effects of Violence on Communities: The Violence Matrix as a Tool for Advancing More Just Policies by Beth E. Richie

Faces of the Aftermath of Visible & Invisible Violence & Loss: Radical Resiliency of Justice & Healing by Barbara L. Jones

The Foundational Lawlessness of the Law Itself: Racial Criminalization & the Punitive Roots of Punishment in America by Khalil Gibran Muhammad

Criminal Law & Migration Control: Recent History & Future Possibilities by Jennifer M. Chacón

Due Process & the Theater of Racial Degradation: The Evolving Notion of Pretrial Punishment in the Criminal Courts by Nicole Gonzalez Van Cleve

Recognition, Repair & the Reconstruction of “Square One” by Geoff K. Ward

Knowing What We Want: A Decent Society, A Civilized System of Justice & A Condition of Dignity by Jonathan Simon

All of these articles (along with abstracts) can be accessed at this webpage.

"The Paid Jailer: How Sheriff Campaign Dollars Shape Mass Incarceration"

The title of this post is the title of this new report published by Common Cause and Communities for Sheriff Accountability. Here is part of the report's introduction:

In the criminal legal system, the patterns are clear and striking.  Business interests can establish a relationship with sheriffs by sending even small contributions.  Construction companies provide backing to sheriffs who proceed to build new jails.  Health care companies fund campaigns, and then receive multimillion-dollar contracts, with no criteria for results or the health of incarcerated people.  The list of donors with direct conflicts is striking and includes employed deputies, bail bonds companies, weapons dealers, and gun ranges.  It is a system incentivized to jail more people and cast a blind eye to any harm suffered by those within the jails.

Our research, conducted in 11 states, in less than 3 percent of sheriffs offices, documents approximately 13,000 apparent conflicts of interest, primarily between 2010 and 2021.  We have identified upward of $6 million, approximately 40% of all examined contributions, that create potential conflicts of interest.  We have selected these sheriffs using a combination of public interest, and random selection, so these sheriffs are more likely to represent a pattern than exceptional cases....

Sheriffs are politicians who make major decisions about health and safety for millions of Americans — and they shouldn’t be up for sale to the highest bidder.  Alongside carceral reforms and community investment, small-dollar democracy programs can amplify the voices of those most impacted by overincarceration and can help to reenvision a justice system that works for everyone and not just a wealthy few.

Rounding up some more notable recent criminal justice reads at the start the new year

Though the new year is now just two week old, I have seen more than two weeks worth of interesting reads that I have not had a chance to blog about.   I did a round up last Sunday here, but here are a bunch more pieces worth checking out:

From the Christian Science Monitor, "A step toward better justice: Prying open the ‘black box’ of plea deals"

From the Collateral Consequences Resource Center, "A radical new approach to measuring recidivism risk"

From Governing, "Prison Population Drops as States Revamp Admission Policies: State prisons quickly adjusted policies and procedures when the coronavirus pandemic hit to ensure the health and safety of the incarcerated individuals and staff. If these pandemic changes become permanent, states could save $2.7 billion annually."

From The Hill, "Colorado trucker's case provides pathways to revive pardon power"

From the Los Angeles Times, "California was supposed to clear cannabis convictions. Tens of thousands are still languishing"

From The Marshall Project, "People in the Scandal-Plagued Federal Prison System Reveal What They Need in a New Director: 'This is kind of like AA: To move forward, first you have to admit there’s a problem'."

From NBC News, "The Federal Bureau of Prisons is getting a new leader — and another shot at reforms: A year after taking office, President Joe Biden has disappointed many prisoners and guards who were hoping for big changes. Now he has a chance to do more."

From the Prison Policy Initiative, "New data: The changes in prisons, jails, probation, and parole in the first year of the pandemic: Newly released data from 2020 show the impact of early-pandemic correctional policy choices and what kind of change is possible under pressure.  But the data also show how inadequate, uneven, and unsustained policy changes have been: most have already been reversed."

From the UCLA Law COVID Behind Bars Data Project, "New Report Shows Prison Releases Decreased During The Pandemic, Despite A Drop In Incarceration"

From Washington Monthly, "Critical Race Query: If America is irredeemable, why are racial disparities in the criminal justice system plummeting?"

Supreme Court takes up procedural issues around challenging execution methods and habeas matters

Via this order list, the US Supreme Court this afternoon granted certiorari in five new cases, two of which involve criminal procedure.  This SCOTUSblog post reviews the high-profile religion case of the bunch and provides this very brief account of the two criminal matters:

• Nance v. Ward, involving the procedures by which an inmate must raise his challenge to the method by which the state intends to execute him.
• Shoop v. Twyford, involving (among other things) whether a court must determine whether evidence would help an inmate seeking a writ of habeas corpus and whether the court can consider that evidence before the court grants an order allowing the inmate to develop new evidence.

Though there were less than a dozen executions throughout the US last year, the Supreme Court now will decided three notable death penalty cases this Term on jury and penalty phase procedures (Tsarnaev), on how executions can be carried out when the condemned seeks a spiritual advisor (Ramirez) and now on how condemned can proceed with challenges to execution methods (Nance).  So while less than .001% of incarcerated persons face execution in recent years, about 5% of the Supreme Court's docket this year involved death penalty matters.

Illinois judge decides to acquit teen in sexual assault case to avoid four-year mandatory minimum term

The New York Times has this interesting new article about a troubling example of how mandatory minimum sentences can (and often do) end up distorting the operation of our justices systems.  The full headline of the article provides the essentials: "Judge Tosses Teen’s Sexual Assault Conviction, Drawing Outrage; Drew Clinton, 18, faced four years in prison under Illinois sentencing guidelines. But the judge, Robert Adrian, overturned his conviction this month, saying the sentence was “not just." Here are the details:

Last October, a judge in western Illinois convicted an 18-year-old man of sexually assaulting a 16-year-old girl while she was unconscious at a graduation party.

The man, Drew Clinton, faced a mandatory minimum sentence of four years in prison, but at a hearing earlier this month, Judge Robert Adrian reversed his own decision and threw out the conviction.  The nearly five months Mr. Clinton had served in jail, the judge said, was “plenty of punishment.”

The decision, which was reported by the Herald-Whig of Quincy, Ill., has dismayed organizations that help survivors of sexual assault, the Adams County state’s attorney’s office and the girl who reported the assault, who told a local television station that she was present when Judge Adrian overturned Mr. Clinton’s conviction. “He made me seem like I fought for nothing and that I put my word out there for no reason,” she told WGEM-TV. “I immediately had to leave the courtroom and go to the bathroom. I was crying.”...

Mr. Clinton was charged with criminal sexual assault on June 1, 2021.  The girl reported that he sexually assaulted her after she became intoxicated at a party on May 30, according to court records.  During the bench trial, she testified that she was unconscious and woke up to find a pillow covering her face and Mr. Clinton assaulting her....

Mr. Schnack [a lawyer for Mr. Clinton] argued that mandatory sentences take away a judge’s discretion. “Every individual should be judged by the court in doing its sentence and not by a legislator years and hundreds of miles removed,” he said, according to the transcript.

He also said that prosecutors had not proved their case against Mr. Clinton and that the girl was able to consent.  Mr. Schnack said that she made many decisions that night, including drinking and stripping down to her underwear to go swimming. “They weren’t the best decisions,” he said. “She did know what was going on.”

Judge Adrian said he knew that, by law, Mr. Clinton was supposed to serve time in prison, but in this case, the sentence was unfair, partly because Mr. Clinton turned 18 just two weeks before the party and, until his arrest, had no criminal record.  “That is not just,” Judge Adrian said during the Jan. 3 hearing, according to the transcript. “There is no way for what happened in this case that this teenager should go to the Department of Corrections. I will not do that.”

He said that if he ruled that the sentence was unconstitutional, his decision would be reversed on appeal.  Instead, he said, what he could do was “find that the people failed to prove their case.” Judge Adrian chastised the parents and other adults who he said provided liquor to the teenagers at the party and failed “to exercise their parental responsibilities.”...

Carrie Ward, the chief executive of the Illinois Coalition Against Sexual Assault, said the judge’s comments and his decision to throw out Mr. Clinton’s conviction were “a clean and clear example of victim blaming.” By highlighting the girl’s clothing and chastising the hosts of the party, the judge shifted “100 percent of the blame from the perpetrator, from the actual person who committed the sexual assault, to everyone else, including the victim,” Ms. Ward said.

I am troubled that the judge here felt compelled to nullify guilt because he was unable or unwilling to develop an argument that a four-year prison term would be unjust and possibly illegal. I do not know Illinois law well enough to know if state constitutional jurisprudence or other doctrines could have provided a basis for the judge to rule that he had to be able to give effect to the defendant's youth and other mitigating factors. But if the judge made a compelling case for a more just sentence, perhaps prosecutors would not have appealed or perhaps appellate courts would have embraced the analysis. Instead, we have a case in which a judge seems to want to believe that two legal wrongs make a right.

"Compassionate Release and Decarceration in the States"

The title of this post is the title of this notable new paper authored by Renagh O'Leary now on SSRN. Here is its abstract:

Though the U.S. prison population has declined slightly over the last decade, progress toward decarceration has been exceedingly modest.  Creating or expanding mechanisms for early release from prison could help accelerate the pace of decarceration.  Compassionate release early release from prison based on a serious or terminal medical condition"is the only early release mechanism available in nearly every state. This Article uses compassionate release as a case study in the possibilities and limits of early release measures as tools for decarceration in the states.

So far, decarceral reforms have largely failed to reach people convicted of violent crimes, who account for over half of the state prison population.  The challenge presented by the prevalence of violent convictions is particularly acute for compassionate release.  People age 55 and older, who make up a significant and growing share of people in state prisons, are the age group most likely to qualify for compassionate release.  They are also the age group most likely to be incarcerated for violent convictions.  This Article identifies the significant barriers that people incarcerated for violent convictions face when seeking compassionate release even when they are not outright barred by their convictions.  This Article argues that to be effective tools for decarceration, compassionate release and other early release measures must reduce the obstacles to release for people incarcerated for violent convictions.  This Article models this approach with concrete suggestions for how states can reform their compassionate release measures to reach the hardest cases.

California Gov Newsom reverse parole grant to Sirhan Sirhan, RFK's assassin

Under California law, the Governor reviews any recommendation of parole by a convicted murderer.  As explained in this new Los Angeles Tomes op-ed, California Governor Gavin Newsom has decided to reverse a parole decision in the high-profile case of Sirhan Sirhan.  Here is how the op-ed starts:

In 1968, Sirhan Sirhan assassinated Sen. Robert F. Kennedy just moments after Kennedy won the California presidential primary.  Sirhan also shot and injured five bystanders. Decades later, Sirhan refuses to accept responsibility for the crimes.

California’s Board of Parole Hearings recently found that Sirhan is suitable for parole. I disagree. After carefully reviewing the case, including records in the California State Archives, I have determined that Sirhan has not developed the accountability and insight required to support his safe release into the community. I must reverse Sirhan’s parole grant.

A copy of the Governor’s parole reversal decision can be found here.  Interestingly, and surely not coincidentally, Gov Newsom also decided today to announce a large number of clemency grants, as this press release details: "Governor Gavin Newsom today announced that he has granted 24 pardons, 18 commutations and 5 reprieves."

Prior related posts:

• Notably high-profile cases now the focus of parole decision-making 
• RFK killer. Sirhan Sirhan, recommended for parole after decades of denials 
• "If Democrats don't think Robert Kennedy’s assassin deserves parole, do they really support criminal justice reform?" 

Can anyone estimate how many (thousands of) federal prison years have been based on acquitted conduct sentencing?

The question in the title of this post came to mind when I saw just the latest example of a federal circuit court upholding a lengthy federal sentence based in part on acquitted conduct.  This  latest example was handed down yesterday by a Seventh Circuit panel in US v. McClinton, No. 20-2860 (7th Cir. Jan 12, 2022) (available here), and here are the basics (with cites removed):

After transfer to adult court ([Dayonta] McClinton was three months away from his eighteenth birthday at the time of the robbery), a jury found McClinton guilty of robbing the CVS in violation of 18 U.S.C. § 1951(a); and brandishing a firearm during the CVS robbery in violation of 18 U.S.C. § 924(c)(1)(A)(ii).  The jury found him not guilty of the indicted crimes of robbery of Perry, in violation of 18 U.S.C. § 1951(a), and causing death while using a firearm during and in relation to the robbery of Perry, in violation of 18 U.S.C. § 924(j)(1).  At sentencing, the district court concluded, using a preponderance of the evidence standard, that McClinton was responsible for Perry’s murder.  The district court judge therefore enhanced McClinton’s offense level from 23 to 43, but also varied downward to account for McClinton’s age and the sentences of his co-defendants, ultimately sentencing him to 228 months in prison.....

The Supreme Court has held that “a jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence.”....  Despite this clear precedent, McClinton’s contention is not frivolous. It preserves for Supreme Court review an argument that has garnered increasing support among many circuit court judges and Supreme Court Justices, who in dissenting and concurring opinions, have questioned the fairness and constitutionality of allowing courts to factor acquitted conduct into sentencing calculations....

But despite the long list of dissents and concurrences on the matter, it is still the law in this circuit — as it must be given the Supreme Court’s holding — that a sentencing court may consider conduct underlying the acquitted charge, so long as that conduct has been found by a preponderance of the evidence. Until such time as the Supreme Court alters its holding, we must follow its precedent.  McClinton’s counsel advocated thoroughly by preserving this issue for Supreme Court review....

In this case Perry’s murder clearly occurred in the course of the planned robbery. Dividing up the proceeds of the robbery was part and parcel of the plan to obtain cash and drugs for the perpetrators. The fact that, in order to avoid detection, the group traveled a safe distance away from the CVS and waited a few minutes to divvy up the drugs and cash, does not sever its connection to the crime. It was Perry’s announcement that he intended to keep the stolen drugs for himself that drew McClinton’s ire. And it was owing to the prior decision of McClinton, Perry, and others to arm themselves for the robbery that ensured McClinton had a firearm at the ready to settle the dispute by shooting Perry. There is no doubt that under Watts, the murder was relevant conduct that could be used to calculate McClinton’s sentence.

Because less than 3% of all federal sentences are imposed after trials (the rest are after pleas), and because there many not be split verdicts in all those trials, there may only be a few hundred federal cases each year in which acquitted conduct sentencing is even possibly an issue. But often the stakes in those cases can be high with acquitted conduct pushing up guideline ranges many years or even decades as in this McClinton case.  (The upcoming Elizabeth Holmes case could have a lot turn on acquitted conduct, though I suspect the feds might not press guideline enhancements quite so hard in such a high-profile setting.) 

And, of course, acquitted conduct guideline enhancements have be pushing up federal guideline ranges for 30+ years now.  So, I suspect tens of thousands of years of federal prison time has been imposed based on acquitted conduct.  But I wonder if anyone has tried to do more than this back-of-the-envelope calculation.

"A Call to Reform Federal Solitary Confinement"

The title of this post is the title of this effective new report authored by Ilanit Turner and Noelle Collins with the Texas Public Policy Foundation.  Here is part of its executive summary (with cited removed):

Federal solitary confinement is in desperate need of repair. After a 40-year spike in federal incarceration rates beginning in 1980 has tapered off, a bipartisan consensus for solitary confinement reform is finally starting to crystallize.

What was once considered a last-resort disciplinary practice in federal prisons has morphed into a default option when other correctional and administrative protocols fail on their first try.  This paper is the latest installment in the Texas Public Policy Foundation’s series of publications entailing prescriptions for local, state, and federal prison reform. Our research is especially timely as prison officials continue to misuse segregated housing units for medical isolation to combat COVID-19.  Because prison officials know they have limited alternatives to curb transmission, improperly using COVID-19 as a justification for solitary confinement is apparently a tempting option.  Warehousing sick inmates poses a unique challenge as those who report symptoms are unjustifiably forced to endure an experience known to cause mental and physical harm.

The current landscape of solitary confinement data released on the Federal Bureau of Prisons (BOP) website is insufficient.  The information on the precise order of operations for the types of infractions that land inmates in solitary is vague, publications of hearings considered for segregation are unavailable, and it is nearly impossible to determine the total length of time served in solitary confinement by each inmate.  Holding BOP accountable for this information should be emphasized if change is to be effected.

Any information that is known about solitary confinement reaches the outside world a day late and a policy short.  Charles Dickens (1842), a notable critic of the American penitentiary system, alluded to the effect of ignorance of solitude in his prescient observation a century and a half earlier, “this slow and daily tampering with the mysteries of the brain, [is] immeasurably worse than any torture of the body… and therefore I denounce it, as a secret punishment which slumbering humanity is not roused up to stay”. Little has changed. The prolonged effects of solitary confinement take the form of irreversible physical and mental health disorders.  When isolated inmates are granted the long-awaited second chance for release right after solitary confinement, they reoffend in rates disproportionately higher than the general prison population. Long durations in segregation exacerbate mental illnesses, leading to bouts of psychosis.  This prevents inmates from integrating back into the labor market, much less society in general, and is correlated with higher rates of criminal episodes.

The Foundation offers a list of policy solutions to improve the status quo of federal solitary confinement.  First and foremost, data transparency is essential. Pulling back the bureaucratic curtain of the federal prison system will reinforce administrative rectitude when deciding to use solitary confinement. Enhancing due process and ongoing review is another way to redirect prison officials to alternative punitive measures.  The BOP should also consider expanding educational and rehabilitative programming for inmates in isolation, as these changes will reduce occupancy and recidivism rates with a single policy adjustment.  Lastly, the BOP system owes it to the public to reduce violence and suicide for inmates in solitary by improving mental health assessments.  Addressing these issues can also reveal areas of endemic corruption that lead to further misuse of this practice. 

Thousands of federal prisoners finally to get FIRST STEP Act credits as DOJ implements earned time rules

As reported in this new AP article, headlined "Thousands of federal inmates to be released under 2018 law," this weeks brings some big FIRST STEP Act implementation news, just over three years since President Trump signed the landmark sentencing reform legislation.  Here are the basics:

The Justice Department will begin transferring thousands of inmates out of federal prisons this week as part of a sweeping criminal justice overhaul signed by President Donald Trump more than three years ago.

The department, in a rule being published Thursday in the Federal Register, is spelling out how “time credits” for prisoners will work. The bipartisan law is intended to encourage inmates to participate in programs aimed at reducing recidivism, which could let them out of prison earlier....

While the transfers are expected to begin this week, it isn’t clear how many inmates will be released. The department would only say that “thousands” of inmates are being affected.

Under the law signed in December 2018, inmates are eligible to earn time credits — 10 days to 15 days of credit for every 30 days they participate in prison programs to reduce recidivism. The programs range from anger management and drug treatment to educational, work and social skills classes.

The announcement of a finalized rule being published comes about two months after the department’s inspector general sounded an alarm that the Bureau of Prisons had not applied the earned time credits to about 60,000 federal inmates who had completed the programs. It also comes a week after an announcement that the director of the prison agency, Michael Carvajal, will resign from his position in the face of mounting criticism over his leadership.

The Biden administration has faced increased pressure from both Democratic and Republican lawmakers to do more to put in place additional aspects of the First Step Act, and the bureau has been accused of dragging its feet....

The inmates being released will be sent to supervised release programs, released to home confinement or transferred into the bureau’s residential re-entry centers, commonly known as halfway houses. The law allows inmates to earn time credits back to 2018, when the First Step Act was enacted.

The Justice Department says implementation of the finalized rule will begin this week with inmates whose time credits exceed the days remaining on their sentence, are less than a year from release and have a term of supervised release. Transfers are underway. More are expected in the weeks ahead as officials apply the time credits to inmates’ records.

The rule also changes the bureau’s definition of a “day” of credit. A proposed version in January 2020 said inmates would need to participate for eight hours in certain academic programs or prison jobs to qualify for one day’s worth of credit. But the final version changes the timetable and says the prior standard “was inconsistent with the goals” of the law. Inmates will earn 10 days for every 30 days they participate in programs. Inmates who can remain in lower risk categories will be eligible for an additional five days of credit in each 30-day period.

Advocates say the finalized definition of a “day” will make it easier for a wide array of prison programs to count toward time credits and will mean more people will be eligible for release earlier.

This new Justice Department press release, titled "Justice Department Announces New Rule Implementing Federal Time Credits Program Established by the First Step Act," discusses these developments this way:

Today, the Department of Justice announced that a new rule has been submitted to the Federal Register implementing the Time Credits program required by the First Step Act for persons incarcerated in federal facilities who committed nonviolent offenses.  As part of the implementation process, the Federal Bureau of Prisons (BOP) has begun transferring eligible inmates out of BOP facilities and into either a supervised release program or into Residential Reentry Centers (RRCs) or home confinement (HC).

“The First Step Act, a critical piece of bipartisan legislation, promised a path to an early return home for eligible incarcerated people who invest their time and energy in programs that reduce recidivism,” said Attorney General Merrick B. Garland.  “Today, the Department of Justice is doing its part to honor this promise, and is pleased to implement this important program.”

The First Step Act of 2018 provides eligible inmates the opportunity to earn 10 to 15 days of time credits for every 30 days of successful participation in Evidence Based Recidivism Reduction Programs and Productive Activities.  The earned credits can be applied toward earlier placement in pre-release custody, such as RRCs and HC.  In addition, at the BOP Director’s discretion, up to 12 months of credit can be applied toward Supervised Release.  Inmates are eligible to earn Time Credits retroactively back to Dec. 21, 2018, the date the First Step Act was enacted, subject to BOP’s determination of eligibility.

Implementation will occur on a rolling basis, beginning with immediate releases for inmates whose Time Credits earned exceed their days remaining to serve, are less than 12 months from release, and have a Supervised Release term.  Some of these transfers have already begun, and many more will take place in the weeks and months ahead as BOP calculates and applies time credits for eligible incarcerated individuals.

The final rule will be published by the Federal Register in the coming weeks and will take immediate effect.  The rule, as it was submitted to the Federal Register, can be viewed here: https://www.bop.gov/inmates/fsa/docs/bop_fsa_rule.pdf

This seems like a very big deal, especially with the retroactive application of credits and the new "day" rule for earning credit, and I will be very interested to see if the federal prison population (which today BOP reports at 157,596 "Total Federal Inmates") starts a move back down after having grown by around 6,000 persons during the first year of the Biden Administration.

"No Justice, No Pleas: Subverting Mass Incarceration Through Defendant Collective Action"

The title of this post is the title of this notable new essay authored by Andrew Manuel Crespo now available via SSRN.  Here is its abstract:

The American penal system is a system of massive, oppressive, racially unjust incarceration.  It is also, to quote the Supreme Court, a “system of pleas.”  The latter drives the former, as coercive plea bargaining makes it possible for the state to do two things that are otherwise hard to pull off at once: increase convictions and sentence lengths.  Mass incarceration is a predictable result.

But while plea bargaining is intensely coercive when leveraged against individuals, the system of pleas has a structural weak point.  That Achilles heel is exposed once we see people facing prosecution not as isolated individuals but rather as a potentially collective community of power.  Organized to act together, this community has unique resources. Most notably, they have the power to say “not guilty” when asked “how do you plead?” If done together, this simple but profound act of resistance would grind the penal system to a halt.  Courts and prosecutors simply do not have the resources to sustain mass incarceration while affording everyone accused of a crime the constitutionally guaranteed right to a trial.  This fact is what makes plea bargaining so essential to mass incarceration in the first place.  Plea bargaining unions, with their implicit power to threaten plea bargaining strikes, thus hold a potentially radical transformative power — a decarceral power, a democratic power — that arises from the penal system’s massive overextension.

Susan Burton, a formerly incarcerated organizer, floated this idea in the pages of the New York Times with Michelle Alexander one decade ago. In the years since, it has never received focused academic attention and has seen only sporadic and isolated attempts at implementation.  This essay is the first installment of a broader project that aims to conceptualize, strategize, and test the limits of Burton’s idea. The immediate goals here are to chart some of the contours of Burton’s core insight — examining both its promise and its hurdles — while marking some key questions for future exploration.

Split New Jersey Supreme Court rules NJ constitution requires allowing juvenile offenders "to petition for a review of their sentence after they have served two decades in prison"

A helpful reader ensured I did not miss the fascinating New Jersey Supreme Court ruling in NJ v. Comer, A-42-20)(NJ Jan 10, 2022) (available here), regarding limits on extreme juvenile sentencing.  The start of the opinion for the Court provide the context and the essentials of the ruling:

This appeal raises challenging questions about the constitutional limits that apply to sentences for juvenile offenders.

The law recognizes what we all know from life experience -- that children are different from adults.  Children lack maturity, can be impetuous, are more susceptible to pressure from others, and often fail to appreciate the long-term consequences of their actions. Miller v. Alabama, 567 U.S. 460, 477 (2012).  They are also more capable of change than adults. Graham v. Florida, 560 U.S. 48, 68 (2010).  Yet we know as well that some juveniles -- who commit very serious crimes and show no signs of maturity or rehabilitation over time -- should serve lengthy periods of incarceration.

The issue before the Court is how to meld those truths in a way that conforms to the Constitution and contemporary standards of decency.  In other words, how to impose lengthy sentences on juveniles that are not only just but that also account for a simple reality: we cannot predict, at a juvenile’s young age, whether a person can be rehabilitated and when an individual might be fit to reenter society.

The question arises in the context of two juveniles who committed extraordinarily serious crimes for which they received long sentences.  In one case, the juvenile offender, who was convicted of felony murder, will not be released for three decades and cannot be considered for parole throughout that time.  In the other appeal, it will be more than four decades before the 14-yearold offender, convicted of purposeful murder, will first be eligible to be considered for parole.

Both juveniles argue that their sentences violate federal and state constitutional provisions that bar cruel and unusual punishment.  See U.S. Const. amend. VIII; N.J. Const. art. I, ¶ 12.  They ask the Court to find that a mandatory sentence of at least 30 years without parole, which N.J.S.A. 2C:11- 3(b)(1) requires, is unconstitutional as applied to juveniles.

We decline to strike that aspect of the homicide statute. But we recognize the serious constitutional issue defendants present under the State Constitution. The Court, in fact, anticipated the question in 2017 and asked the Legislature to consider amending the law to allow juvenile offenders who receive sentences with lengthy periods of parole ineligibility to return to court years later and have their sentences reviewed. State v. Zuber, 227 N.J. 422, 451-53 (2017).

Today, faced with actual challenges that cannot be overlooked, we are obligated to address the constitutional issue the parties present and cannot wait to see whether the Legislature will act, as the State requests. That approach is consistent with the basic roles of the different branches of government.  The Legislature has the responsibility to pass laws that fix the range of punishment for an offense; the Judiciary is responsible to determine whether those statutes are constitutional.  Under settled case law, courts also have the authority to act to protect statutes from being invalidated on constitutional grounds.

Here, the statutory framework for sentencing juveniles, if not addressed, will contravene Article I, Paragraph 12 of the State Constitution.  To remedy the concerns defendants raise and save the statute from constitutional infirmity, we will permit juvenile offenders convicted under the law to petition for a review of their sentence after they have served two decades in prison.  At that time, judges will assess a series of factors the United States Supreme Court has set forth in Miller v. Alabama, which are designed to consider the “mitigating qualities of youth.” 567 U.S. at 476-78 (quoting Johnson v. Texas, 509 U.S. 350, 367 (1993)).

We provide for the hearing, rather than strike the homicide statute on constitutional grounds, because we have no doubt the Legislature would want the law to survive. The timing of the hearing is informed by a number of sources, including acts by the Legislature and other officials.

At the hearing, the trial court will assess factors it could not evaluate fully decades before -- namely, whether the juvenile offender still fails to appreciate risks and consequences, and whether he has matured or been rehabilitated.  The court may also consider the juvenile offender’s behavior in prison since the time of the offense, among other relevant evidence.

After evaluating all the evidence, the trial court would have discretion to affirm or reduce the original base sentence within the statutory range, and to reduce the parole bar to no less than 20 years.  A juvenile who played a central role in a heinous homicide and then had a history of problematic behavior in prison, and was found to be incorrigible at the time of the later hearing, would be an unlikely candidate for relief.  On the other hand, a juvenile who originally acted in response to peer pressure and did not carry out a significant role in the homicide, and who presented proof at the hearing about how he had been rehabilitated and was now fit to reenter society after two decades, could be an appropriate candidate for a lesser sentence and a reduced parole bar.

The Appellate Division rejected the juveniles’ constitutional claims. We therefore reverse and remand both matters for resentencing. We express no opinion on the outcome of either hearing.

Three Justices dissented from this holding by the NJ Supreme Court, and the dissenting opinion begins this way:

The majority today holds that the New Jersey Constitution requires a 20- year lookback period for juvenile offenders who were waived to adult court and tried and convicted as adults of homicide offenses.  We acknowledge our colleagues’ view that the New Jersey Constitution permits our intervention here.  But we are not legislators imbued by our Constitution with such authority. In our view, the majority today act “as legislators” instead of as judges. Gregg v. Georgia, 428 U.S. 153, 175 (1976). Thus, we respectfully dissent.

The majority asserts that it is required to act by our Constitution and landmark juvenile sentencing cases from both this Court and the United States Supreme Court. See Miller v. Alabama, 567 U.S. 460 (2012); Graham v. Florida, 560 U.S. 48 (2010); State v. Zuber, 227 N.J. 422 (2017).  The cited cases hold that, for the purpose of sentencing, the Constitution requires courts to treat juveniles differently and to consider certain factors before sentencing them to life without parole or its functional equivalent.  We believe that our current sentencing scheme fulfils that constitutional mandate.  Thus, it is not our prerogative to impose an additional restriction on juvenile sentencing.

In our view, a 30-year parole bar for juveniles tried as adults and convicted of homicide conforms with contemporary standards of decency, is not grossly disproportionate as to homicide offenses, and does not go beyond what is necessary to achieve legitimate penological objectives.

Accordingly, we believe that the majority’s imposition of a 20-year lookback period for homicide offenses is a subjective policy decision rather than one that is constitutionally mandated.  As such, it must be left to the Legislature, which could have considered all of the factors the majority has, and some it has not.  Instead, the majority joins a small minority of states with lookback periods imposed by judicial fiat rather than by statute.

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

The US Sentencing Commission today published some more findings from its big eight-year recidivism study of federal offenders released from prison in 2010. This new 144-page report is titled "Recidivism of Federal Drug Trafficking Offenders Released in 2010," and this USSC webpage provides this overview with key findings:

Overview

This report is the third in a series continuing the Commission’s research of the recidivism of federal offenders.  It provides an overview of the recidivism of the 13,783 federal drug trafficking offenders released from incarceration or sentenced to a term of probation in 2010, combining data regularly collected by the Commission with data compiled from criminal history records from the Federal Bureau of Investigation.  This report provides an overview of recidivism for these offenders and information on key offender and offense characteristics related to recidivism. This report also compares recidivism outcomes for federal drug trafficking offenders released in 2010 to drug trafficking offenders released in 2005.

The final study group of 13,783 drug trafficking offenders satisfied the following criteria:

• United States citizens
• Re-entered the community during 2010 after discharging their sentence of incarceration or by commencing a term of probation in 2010
• Not reported dead, escaped, or detained
• Have valid FBI numbers that could be located in criminal history repositories (in at least one state, the District of Columbia, or federal records)

Key Findings

• The rearrest rate for drug trafficking offenders released in 2010 was similar to the rate for those released in 2005 despite intervening changes in the criminal justice system: the Supreme Court’s decision in Booker, adjustments to sentencing of crack cocaine offenses, and increased use of evidence-based practices in federal supervision.
• The rearrest rate for a new offense or an alleged violation of supervision conditions was similar for drug trafficking offenders (47.9%) as compared to all other offenders released in 2010 (50.4%).
• Of those drug trafficking offenders released in 2010 who were rearrested, the median time from re-entry to the first rearrest was 23 months. By comparison, the median time from re-entry to the first rearrest for all other offenders was 16 months.
• Crack cocaine trafficking offenders were rearrested at the highest rate (57.8%) of any drug type, while powder cocaine trafficking offenders were rearrested at the lowest rate (41.8%). Rearrest rates for other primary drug types ranged from 42.7 percent to 46.7 percent.
• Approximately one-third (32.0%) of drug trafficking offenders who were rearrested had drug-related offenses (either drug trafficking, drug possession, or another drug offense) as their most serious new charge at rearrest. Nearly one-fifth (19.9%) were charged with assault at rearrest.
• Criminal history was strongly correlated with rearrest. Drug trafficking offenders’ rearrest rates ranged from 29.9 percent for offenders with zero criminal history points to 74.9 percent for offenders with 13 or more criminal history points.
• Age at release into the community also was strongly correlated with likelihood of rearrest. Drug trafficking offenders released prior to age 21 had the highest rearrest rate of 70.1 percent, while drug trafficking offenders who were 60 years or older at the time of release had the lowest rearrest rate of 16.4 percent.
• Over an eight-year follow-up period, 47.9 percent of drug trafficking offenders in the 2010 release cohort were rearrested compared to 50.0 percent of drug trafficking offenders in the 2005 release cohort.

"The Original Criminal Jury"

The title of this post is the title of this notable new paper authored by Jeff Hetzel recently posted to SSRN.  Here is its abstract:

In early America, the criminal jury decided matters of law.  The prosecutor and defense counsel read aloud to the jury from statutes, precedent, and treatises.  The presiding judge instructed the jury that it had the power to decide matters of law.  Then, the jury deliberated and rendered a verdict based on, among other things, its independent judgment about matters of law, whether that meant the common law, statutes, or the Constitution.

The legal world has for generations failed to recognize the power of the original criminal jury.  Those who have not ignored the evidence of the jury’s power over matters of law have tended to interpret it as an early form of jury nullification, by which the jury could review the morality of the prosecution.  But a careful examination of early practice reveals that the jury held no more power to nullify than it does today.  Rather, the early American jury held the power to do what judges today are expected do — to decide what the law means without deciding its morality.

This Article reintroduces this forgotten — yet still constitutionally binding — model of the criminal jury.

"Compassionate Release as Compassionate Decarceration: State Influence on Federal Compassionate Release and the Unfinished Federal Reform"

The title of this post is the title of this new paper authored by Chun Hin Jeffrey Tsoi now available via SSRN. Here is its abstract:

The First Step Act's (FSA) compassionate release reform was a “modest but necessary” step; the pandemic and the threat it posed to the incarcerated population ought to prompt reflections on what the next steps should be.  This Essay is intended to serve as both a brief historical review of state influence on federal compassionate release, and as a reflection on the unfinished compassionate release reform in terms of DOJ’s execution. 

Part I briefly surveys the trajectory of 18 U.S.C. § 3582(c) from the Sentencing Reform Act (SRA) to the Prisoner-initiated & Court-ordered (PICO) compassionate release provision in the FSA, and its application in the pandemic.  Part II supplements the compassionate release literature by exploring the history of PICO compassionate release in state law as a backdrop of the long-awaited federal reform allowing prisoners to petition for their own release, and it proposes that state practices, especially that of New Jersey, might have influenced the introduction and passage of FSA in part through the Model Penal Code.  Part III suggests that the arc of compassionate release reform in federal law is nevertheless unfinished, with the Department of Justice’s (DOJ) objection practices being part of the necessary change.  Using data and cases from the District of Columbia, whose PICO compassionate release statute is modeled after federal law and clearly intended as a response to the pandemic, this Essay proposes that the DOJ's perspective and practices must change to adapt to the essential purpose of compassionate release: addressing mass incarceration in America with compassion.