Sentencing Law and Policy

"Pardon System Needs Fixing, Advocates Say, but They Cringe at Trump’s Approach"

The title of this post is the title of this lengthy new New York Times article.  I recommend it in full, and here are excerpts:

For those who view the Justice Department’s pardon system as slow and sclerotic, with its backlog of more than 11,000 cases, they need only look to the case of Matthew Charles.  Mr. Charles was sentenced in 1996 to 35 years in prison for selling crack cocaine. In prison, he took college classes, became a law clerk and taught fellow inmates.  He was released early, in 2016, and began rebuilding his life, volunteering at a food pantry and even falling in love.

Last month, Mr. Charles was sent back to prison after a federal court determined that he did not technically qualify for early release. His lawyers plan to ask the Justice Department to commute the rest of his sentence, and he appears to fall within its guidelines for clemency. But with nearly 9,000 petitioners for a commutation ahead of him, it could take years for federal law enforcement officials to decide his fate.

Cases like Mr. Charles’s make some criminal justice reform advocates say they would welcome a reform-minded president willing to bypass the system and more boldly wield the constitutional power to grant pardons.

Now they have one in President Trump, who has pardoned five people in his first 17 months in office and bypassed the Justice Department’s recommendation system to do so. This week, he pardoned Dinesh D’Souza, the conservative commentator who pleaded guilty in 2014 to violating campaign finance law. Mr. D’Souza responded on Twitter by claiming victory over what he viewed as a political prosecution and by mocking Preet Bharara, the former United States attorney in Manhattan whose office prosecuted the case.

But by choosing to pardon political supporters whose cases largely failed to meet the basic guidelines for pardons, Mr. Trump could turn a slow and imperfect system into an unequal and unjust one, both liberal and conservative advocates warn, in which those with fame, money or access to the president’s ear are first in line to receive clemency.

“A more regular and robust use of presidential clemency, and a willingness to go around the Justice Department process, would be applauded by many,” said Kevin Ring, a conservative public policy expert and the president of Families Against Mandatory Minimums. “The issue is whether the president will still apply standards and meritocracy. Will he weigh the injustices and mete out justice to reflect the needs of a situation? That doesn’t seem to be the case.”...

The pardon office has a reputation for slow decision making, in part because of the time needed to carefully vet a case. Of the backlog of 11,203 pardon and commutation cases, only 2,876 have been filed since Mr. Trump became president. A lack of resources has also bogged down the process, according to officials involved. The previous pardon attorney, Deborah Leff, resigned because she said she could not get the resources necessary to meet Mr. Obama’s goal to prioritize petitions that would shorten sentences for nonviolent drug offenders....

Advocates who want to see the pardon system overhauled generally support its guidelines for granting pardons and commuting sentences. In general, felons wait five years after conviction or release to petition for a pardon. They must show evidence of rehabilitation and demonstrate that they have led responsible and productive lives after release for a significant period of time. The recommendations of officials including federal prosecutors and judges are also taken into consideration.

“A president that circumvents this system is not necessarily a bad idea,” said Shon Hopwood, Mr. Charles’s lawyer. “Legal scholars have argued for years that it’s inappropriate to have the office of the pardon attorney at the Justice Department. It asks the people who grant pardons and clemency to correct their colleagues, the prosecutors who put people in prison.”

Some regular readers may recall that, way back in 2010, I urged Prez Obama to structurally change the federal clemency system in this this law review article titled "Turning Hope-and-Change Talk Into Clemency Action for Nonviolent Drug Offenders." Here is a snippet from that piece (updated for Trumpian times):

President [Trump] ought to seriously consider creating some form of a "Clemency Commission" headed by a "clemency czar."...  Though a "Clemency Commission" headed by a "clemency czar" could be created and developed in any number of ways, ... [the] basic idea is for President [Trump] to create a special expert body, headed by a special designated official, who is primarily tasked with helping federal officials (and perhaps also state officials) improve the functioning, transparency, and public respect for executive clemency. Though the structure, staffing, and mandates of a Clemency Commission could take many forms, ideally it would include personnel with expertise about the nature of and reasons for occasional miscarriages of justice in the operation of modem criminal justice systems — persons who possess a deep understanding that, in the words of James Iredell, "an inflexible adherence to [severe criminal laws], in every instance, might frequently be the cause of very great injustice."

The Clemency Commission could and should study the modem causes of wrongful conviction, "excessive" sentences, and overzealous prosecutions, and then make formal and public recommendations to the President and other branches about specific cases that might merit clemency relief or systemic reforms that could reduce the risk of miscarriages of justice.  In addition, the Commission could be a clearinghouse for historical and current data on the operation of executive clemency powers in state and federal systems.  It could also serve as a valuable resource for offenders and their families and friends seeking information about who might be a good candidate for receiving clemency relief. Though the creation of a Clemency Commission would be an ambitious endeavor, the effort could pay long-term dividends for both the reality and the perception of justice and fairness in our nation's criminal justice system.

Prior recent related posts about Trumpian clemency activity:

• As he had hinted, Prez Trump decides to make his first use of the clemency power a pardon for Joe Arpaio 
• "President Trump Commutes Sentence of Sholom Rubashkin"!?!?! 
• Prez Trump issues his second pardon; Kristian Saucier, whom prosecutors sought imprisoned for six years, served year for taking photos in classified sub room
• Prez Donald Trump officially pardons Scooter Libby
• After four high-profile clemencies, Prez Trump issues a bunch of denials
• Might Kim Kardashian West actually convince Prez Trump to grant clemency to federal drug offender? 
• As Kim Kardashian heads to White House, I hope she advocates for many federal offenders excessively sentenced 
• Prez Trump meets with Kim Kardashian to discuss clemency ... and then tweets that he "Will be giving a Full Pardon to Dinesh D’Souza"
• Prez Trump suggests to reporters there will be more episodes of "Celebrity Clemency" 

Lamenting how federal supervised release operates and suggesting reforms

Jacob Schuman, a federal public defender, has this extended New Republic piece headlined "America’s Shadow Criminal Justice System" detailing problems with how federal supervised release operates. I recommend the piece in full, and here are excerpts:

In the federal criminal justice system, prison is just the beginning of punishment. After prison comes “supervised release,” a set of obligations and restrictions governing an ex-con’s day-to-day schedule, employment, residence, and relationships.

In the best-case scenario, two-thirds of people successfully complete their term of supervised release....  As a federal public defender, I see the remaining one-third of cases—the worst-case scenarios where people violate their supervised release and get sent back to prison for up to five years. In a recent case, I represented a first-time offender who flawlessly completed two years of a five-year term of supervision.  But after he got into a relationship with the wrong person and started using opioids, he was reported by his probation officer, arrested, and held in prison for seven months.  After a failed attempt at rehab, his probation officer reported him again, and the judge sentenced him to 18 months’ imprisonment for violating his release by failing to achieve recovery. He’s now serving that sentence in a maximum-security prison, where no addiction treatment is available.

Improving this system depends on Congress, which has now taken on the worthy task of prison reform. Recently, the House of Representatives passed the First Step Act, a bill that makes it easier for inmates to earn early release and expands their access to job training and education. The proposal won an impressively bipartisan 360-59 vote and the support of the White House.  While the FSA makes good changes, reform will be incomplete unless it also addresses supervised release, a web of restrictions that ensnares many former prisoners, making successful reentry to society more difficult, not less....

The data show that this system is incredibly strict, and that its reach is vast.  Between 2005 and 2009, federal judges imposed supervised release in approximately 300,000 cases, with an average term lasting over 40 months.  By 2010, more than 10,000 federal inmates were locked up for violating their supervised release. The supervision costs the federal government $400 million annually (not including the cost of incarcerating people for violations)....

Created by the Sentencing Reform Act of 1984, supervised release was supposed to reduce the monitoring of former prisoners.  Under the old “parole” system, inmates could earn early release from prison, but then had to serve the rest of their sentences in the community, subject to a parole officer’s supervision.  The SRA abolished parole and instead gave judges the option of imposing supervised release only on those defendants who needed extra support to “ease the[ir] … transition into the community.” The idea was that people would spend more of their time in prison, but would also receive less supervision after their release. Yet as the political winds shifted, Congress gradually made supervised release more expansive and more punitive.  Federal judges now impose supervised release in 99 percent of qualifying cases, and the number of people under supervision has increased five-fold.

Over the past 30 years, supervised release has transformed into a shadow criminal justice system that both reflects and perpetuates racial inequality.  In her book, The New Jim Crow, Professor Michelle Alexander examined how restrictions on former inmates, the majority of whom are Black or Hispanic, put them “at increased risk of arrest because their lives are governed by additional rules that do not apply to everyone else.”  This inequality continues into the courthouse, as unlike most defendants, people accused of violating the terms of their supervised release do not enjoy the rights to a speedy trial, a jury, confrontation of adverse witnesses, or proof beyond a reasonable doubt.  The upshot is that in the federal system alone, over 100,000 men and women are now subject to arrest for minor infractions and to imprisonment without the protections of the Bill of Rights....

Reforming this system will not be easy, but there are a few good places to start:

First, Congress should return to its original goal of reducing post-release supervision of former inmates by limiting supervised release only to those defendants who need it most and by reducing the punishments for violations.

Second, both Congress and the courts should ensure that people facing revocation of their supervised release receive all the fundamental protections promised by the Bill of Rights, including the right to a jury, to a speedy hearing, to cross-examine adverse witnesses, and to be proved guilty beyond a reasonable doubt.

Finally, judges should stop sending people to prison for violations that are merely symptoms of an underlying drug addiction, not bad intent.  To encourage this practice, Congress should end mandatory revocations for drug possession and prohibit imprisonment for drug-related technical infractions.

Supporters of the First Step Act say their goal is “to control corrections spending, manage the prison population, provide educational and vocational training to inmates so they can successfully reenter society once released, and reduce recidivism.” To achieve this admirable purpose, reforming the nation’s prisons is indeed only the first step. Congress must also look beyond prison walls and fix our broken supervised-release system.

Another notable example of mandatory minimum sentences driving severe outcomes even when not applied

Old and new media is buzzing today about severe sentencing story out of Georgia involving a 15-year-old sentenced to five years of imprisonment for stealing a pair of sneakers.  Before getting to the details of the story, I am inclined to encourage readers to (A) think about what kinds of facts might lead to a teenager getting five years in prison for stealing a pair of sneakers, and (B) think about whether they already have an inkling about the gender and race of this teenager. 

Like all sentencing stories, this one has nuances and this AP account provides more of the nuanced details than some others I have seen (with a few sentences highlighted to connect the story to the title of this post):

A judge and prosecutor said Friday that a five-year sentence given to a Georgia teen who stole a pair of pricey shoes was appropriate because a gun was used during the robbery. Dayonn Davis, who was 18 when he was sentenced this week to five years in prison followed by 10 years of probation, was charged as an adult even though he was 15 when the crime was committed and his lawyer said he had no prior record.

Prosecutors Sadhana Dailey said in court that Davis contacted the owner of the Nike Oreos — so called because they're black and white — after seeing them for sale on Facebook, according to the Ledger-Enquirer.  They arranged to meet at a Columbus park on Jan. 17, 2016.  Another male went with Davis to the meeting.  When Davis tried the shoes on, he told the seller, "These shoes is took." The other male pulled out a gun and everyone fled, the newspaper reports.

"This was an armed robbery. It's not a theft.  There's a big difference between a theft and an armed robbery," Dailey told The Associated Press on Friday in a phone interview.  "The teen victim was robbed at gunpoint."  Columbus police quickly identified Davis, who had the shoes in his closet.  Davis initially told police no one else was involved but eventually gave a name, but the seller of the shoes couldn't identify the person in a photo lineup as the gunman, the newspaper reported.

Davis was charged with armed robbery and reached a deal with prosecutors to plead guilty to robbery by force, which allowed him to avoid the mandatory 10-year sentence that comes with an armed robbery conviction, Dailey said. "He got a break," she said.

Defense attorney Susan Henderson told Muscogee County Superior Court Judge Bobby Peters her client just wants to put the whole thing behind him and move on, the Ledger-Enquirer reported. "He's been extremely remorseful," she said. "He's got his life on track now."

She insisted Davis didn't know the other person would pull a gun. But the judge says that makes little difference in the eyes of the law. "I was young at the time, so I wasn't in my right mind," Davis told the judge.

Judge Peters called the case an unfortunate situation and told the AP he would rather it have been handled in juvenile court.  Dailey said it was appropriate to charge Davis as an adult because of the seriousness of the crime.  Peters told the AP that Davis will likely be released on parole before completing his five-year sentence. Because it's a first offense, Davis' record can be expunged if he successfully completes probation, Peters said.

I suspect that few would dispute the statement by the prosecutor here that "there's a big difference between a theft and an armed robbery," or that an armed robbery ought to call for more punishment than a theft.  But, especially on the facts as described here, the notion that this teenager "got a break" seems quite disputable ... except in light of the seemingly applicable  mandatory 10-year sentence for this kind of offense.

If one fully embraces mandatory minimum sentences as a legislature's definition of the lowest justifiable sentence for a particular form of criminal activity, then one would have to say, like the prosecutor here, that this teenager got a huge break.  But then again, if one fully embraces mandatory minimum sentences as a legislature's definition of the lowest justifiable sentence for a particular form of criminal activity, then one would also have to say that the prosecutor here has no respect for the rule of law when opting to give this teenager a huge break.  So, this case provides another example of what mandatory sentences really do: they put sentencing powers in the hands of prosecutors while creating harmful distortions to the scale of punishment  and to commitments to the rule of law. 

Making the case against nitrogen as an execution method

Charles Blanke, an oncologist and professor of medicine, has this notable new commentary in Newsweek headlined "Death by nitrogen should not be america's new capital punishment method." Here are excerpts:

Ever since the first recorded state punishment, when the Jamestown colony executed a Spanish spy by firing squad more than 400 years ago, Americans have tinkered with the technologies used to kill condemned prisoners....  Since 2015, three states, Oklahoma, Alabama and Mississippi, trying to improve upon the current methods of execution in America — gas chamber, hanging and lethal injectio n— have added nitrogen gas asphyxiation to their capital punishment arsenals.

Nitrogen, which makes up about 78% of the air we breathe, is a colorless, odorless, tasteless gas used in a broad commercial range that includes ceramics manufacturing and steelmaking.  While it is not poisonous, breathing in pure nitrogen keeps the brain from getting enough oxygen, which itself is directly fatal.  In fact, a number of lethal industrial accidents involving inhaled nitrogen are reported every year.  Though its potential use in executions has not been formally studied, advocates have already suggested legal death via nitrogen inhalation would be quick, peaceful, and humane.

We need to ask three questions about the possible use of nitrogen in capital punishment cases.  Would it work? Does it offer advantages over current methods? And, is it cruel and unusual, violating the Eighth Amendment to the U.S. Constitution? The answers are yes, maybe, and we don’t know (but probably yes).

Though it has not yet been used in a death penalty case, there is no doubt using nitrogen to execute prisoners would be highly effective.  Placed into a pure nitrogen environment, the convict would be unconscious within a minute (possibly even after a breath or two) and would be dead soon after.  Its failure rate, that is, cases in which the prisoner survives, would likely be much lower than what we see with current death penalty methods.

The second question, whether or not using nitrogen is better than what we currently do, is harder to answer. We need to be cautious in adopting new methods for use in capital punishment cases.  Every technique embraced to date, no matter what advantages they were thought to offer in theory, has been fraught with real-life shortcomings, ranging from modest to heinous.  Convicts in the electric chair have burst into flames, or required multiple jolts. The gas chamber, adopted by 12 states as being humane, fails in five percent of cases, with some prisoners observed to gasp for air for prolonged periods. Others have convulsed.

Lethal injection, the go-to procedure in every state with a capital punishment provision, has the highest fail rate of any method, exceeding seven percent. It can require multiple needle pokes to access veins in prisoners scarred from drug abuse or chronic illness, and one recent botched execution attempt in Alabama reportedly led to profuse bleeding and a punctured bladder....

There are many unanswered questions on what could go wrong with nitrogen use. If prisons forced the convicts to wear a tight fitting mask, would this increase the feeling of suffocation?  Could they still leak?  Or, would an entire room need to be filled with pure nitrogen? Would accidental dilution with oxygen-containing room air (mask or room) slow or even prevent death, leaving prisoners in comas or brain-damaged?

Also, nitrogen use isn’t medically regulated, and it’s hard to imagine much quality control would be applied to inspecting the gas used in death penalty cases.  What happens if prisons buy contaminated product?  Finally, would the nitrogen manufacturers take their cue from those making medications used in lethal injection and restrict sales to penitentiaries?...

Humans normally breathe in life-sustaining oxygen and breathe out carbon dioxide produced during respiration.  Choking victims, who cannot get enough oxygen, say it is agonizing.  Supporters of using nitrogen in capital punishment cases believe the feeling of suffocation actually comes not from lack of oxygen (known as hypoxia), but from the buildup of carbon dioxide.  Since prisoners could still blow off carbon dioxide while breathing pure nitrogen, advocates say they wouldn’t suffer from air hunger.

What if they are wrong? Some studies suggest that fatal low oxygen levels alone do cause anxiety and the fear of suffocation.  And, it wouldn’t actually matter, even if they are right.  Hypoxia itself can cause severe nausea, disorientation, confusion, dizziness, inability to move, and seizures, regardless of what the carbon dioxide levels are doing.

Nitrogen gas doesn’t put people to sleep as do the medicines used in anesthesia, so prisoners could be painfully aware.  To be sure, sedating them first would prevent any distress from the hypoxia, but it would leave all the other problems associated with lethal injection.

It should be noted that nitrogen was previously used to kill animals, but it’s not a method that’s used anymore—the American Veterinary Medical Association does not recommend nitrogen euthanasia because evidence suggests gassed dogs and cats can actually suffer horribly before dying. Determining in advance whether or not nitrogen asphyxiation offers a “peaceful” death is impossible. We don’t have a lot of interviews with survivors of industrial nitrogen accidents, and experimentation is unethical—we can’t partly gas convicts and ask them how it went.

If our old-fashioned methods are not ideal, and nitrogen asphyxiation is not proven humane, are there other alternatives? Yes. I testified in hearing where the United States District Court for the Northern District of Alabama recently ruled in the case of Doyle Lee Hamm that oral drugs used medically in states allowing terminally ill patients to take their own lives — “death with dignity”. This method could lawfully be employed in capital punishment cases. Though Alabama still ultimately tried (unsuccessfully) to use standard intravenous injection following the legal action spawning that ruling, medications given by mouth are under consideration in death penalty cases elsewhere in the south....

Capital punishment remains constitutional, and it isn’t going away any time soon.  However, our Supreme Court has ruled the death penalty cannot involve unnecessary or wanton infliction of pain, and that there must be a constitutional means of applying it.  We need to put more thought into the methods used, especially since there are no means to scientifically test in advance whether or not they violate the Eighth Amendment.  We don’t and can’t know that nitrogen asphyxiation would be painless, and it simply doesn’t qualify as an acceptable means of carrying out a death sentence.

A few (of many) prior related posts:

• Is nitrogen gas the best modern execution alternative to lethal injection?
• A worldly perspective on different execution methods
• Should problems with lethal injection prompt return of other execution methods?
• Effective discussion of nitrogen gas as execution method alternative
• Oklahoma embracing nitrogen gas instead of lethal drugs as method of execution
• Examining whether nitrogen gas could be a viable new method for executions 

"Challenging the Punitiveness of 'New-Generation' SORN Laws"

The title of this post is the title of this notable new article by Wayne Logan now available via SSRN.  Here is its abstract:

Sex offender registration and notification (SORN) laws have been in effect nationwide since the 1990s, and publicly available registries today contain information on hundreds of thousands of individuals.  To date, most courts, including the Supreme Court in 2003, have concluded that the laws are regulatory, not punitive, in nature, allowing them to be applied retroactively consistent with the Ex Post Facto Clause.  Recently, however, several state supreme courts, as well as the Sixth Circuit Court of Appeals, addressing challenges lodged against new-generation SORN laws of a considerably more onerous and expansive character, have granted relief, concluding that the laws are punitive in effect. 

This symposium contribution examines these decisions, which are distinct not only for their results, but also for the courts’ decidedly more critical scrutiny of the justifications, purposes, and efficacy of SORN laws.  The implications of the latter development in particular could well lay the groundwork for a broader challenge against the laws, including one sounding in substantive due process, which unlike ex post facto-based litigation would affect the viability of SORN vis-à-vis current and future potential registrants.

Prez Trump suggests to reporters there will be more episodes of "Celebrity Clemency"

I often come to think of Prez Trump as Huckster-in-Chief or Showman-in-Chief, and his TV salesman tendencies shine through when he teases his own presidential plans like a radio host hoping to keep you tuned in to the next segment.  This morning, as blogged here, the tease was on Twitter in the form of a promise to "be giving a Full Pardon to Dinesh D’Souza."  This afternoon, as detailed in this Fox News piece, the tease was delivered to reporters on Air Force One about more grants of clemency to more high-profile federal felons:

President Trump said Thursday he was considering pardoning or commuting the sentences of Martha Stewart and former Illinois Gov. Rod Blagojevich, following his announcement earlier in the day of a full pardon for conservative filmmaker Dinesh D’Souza. The president’s comments came during a gaggle with reporters on Air Force One enroute to Houston, Texas.

Trump called the former governor’s sentence on corruption charges “really unfair” and added that “plenty of other politicians could have said a lot worse.” The president said that Blagojevich said something dumb, but that "lots of politicians" do.

“I’ll tell you another one … there’s another one that I’m thinking about. Rod Blagojevich -- 18 years in jail for being stupid and saying things that every other politician, you know that many other politicians say,” Trump told reporters. “And if you look at what he said, he said something to the effect like 'what do I get' … stupid thing to say.”

The former Democratic governor, who was a contestant on Trump's "Celebrity Apprentice" in 2010, began his 14-year prison sentence in 2012 after being convicted of corruption. Blagojevich's scheduled release date is in 2024. Blagojevich was governor of Illinois from 2003 to 2009, when he was impeached and convicted on corruption charges over allegations he took bribes for political appointments—including to the open U.S. Senate seat of former President Barack Obama.

Trump suggested he was more interested in “curtailing his sentence” than a full pardon. “I am seriously thinking about – not pardoning – but I am seriously thinking of a curtailment of Blagojevich," Trump said....

“And there are others. I think to a certain extent Martha stewart was harshly and unfairly treated. And she used to be my biggest fan in the world … before I became a politician," Trump said. "But that’s ok I don’t view it that way.”

Stewart was convicted in 2004 of obstructing justice and lying to the government as part of an insider trading case. At the time, former FBI Director James Comey was the federal prosecutor who charged Stewart.

I noted in this post yesterday that Kim Kardashian on Wednesday afternoon was at the White House to speak in person with Jared Kushner and Prez Trump about her interest in seeing a clemency grant for Alice Marie Johnson, a grandmother serving LWOP for non-violent drug offense.  I closed that post by saying "it would be something for Kimme to get clemency relief for a single federal defendant; it would be something special if she could secure clemency relief for a number of individuals." For the record, I was not thinking about Martha Stewart or Rod Blagojevich or Dinesh D’Souza when I made that statement. But, jokes aside, this trio might want to send a thank you note to Kimme because it seems she did something to get Prez Trump's clemency juices flowing.  Now let's all hope these juices flow to the benefit of some non-elites ASAP.

A few prior related posts:

• Might Kim Kardashian West actually convince Prez Trump to grant clemency to federal drug offender? 
• As Kim Kardashian heads to White House, I hope she advocates for many federal offenders excessively sentenced 
• Prez Trump meets with Kim Kardashian to discuss clemency ... and then tweets that he "Will be giving a Full Pardon to Dinesh D’Souza"

Fuzzy math and fuzzy logic in criticisms of federal FIRST STEP Act based in state recidivism data

Over at PoweLine, Paul Mirengoff has this extended post trying to make a case against the FIRST STEP Act under the headline "Cold Facts On Recidivism Undermine Case For Leniency Legislation."  I find some of Mr. Mirengoff's posts to be astute even though he relies often on "tough-and-tougher" rhetoric to oppose any possible form of sentencing reform. But this latest effort is full of especially fuzzy work.  Let me explain with some quotes (indented and italicized) followed by my commentary.

Last week, the Department of Justice released an updated study from the Bureau of Justice Statistics (BJS) showing that 83 percent of prisoners released by states are re-arrested within nine years of their release.  44 percent of released state prisoners were arrested during the first year after release, 68 percent were arrested within three years, and 79 percent within six years....  The results of the study should deter the Senate from embracing the FIRST STEP legislation passed by the House just before the BJS figures were published. Indeed, the BJS numbers undermine FIRST STEP in multiple ways. 

First, it is estimated that FIRST STEP would mandate the immediate release of at least 4,000 federal felons before they serve their full sentence. Given the recidivism numbers from the BJS study, we know that a high percentage of the 4,000 will commit crimes during the period during which, absent FIRST STEP, they would be behind bars.

Mr. Mirengoff accurately reports that the BJS study (which I noted in this prior post) concerns state prisoners, though he fails to note these are folks who were released from state prisons in 2005.  From the very outset it is very faulty to assert that recidivism data on state prisoners released in 2005 readily enables us to "know" what federal prisoners released in 2018 will do.

The US Sentencing Commission's most recent report on federal prisoner recidivism, notably, shows a much lower (though still significant) rearrest rate than state prisoners.   Here is how the USSC explains how distinct the federal population is from the state population when running prisoner recidivism numbers:  "Compared to a cohort of state prisoners released into the community in 2005 and tracked by the Bureau of Justice Statistics, federal offenders had a  lower recidivism rate.  BJS found that 76.6 percent of offenders released from state prison were rearrested within five years. The Commission, using a comparable five year follow-up period and including only federal offenders released from prison ... found the recidivism rate for these federal offenders was 44.9 percent." 

Moreover, the estimated 4000 prisoners to be getting earlier release thanks the FIRST STEP Act will be getting out mostly a few weeks or a few months earlier because of getting a little extra credit for good behavior in prison.  The proper statistics suggest, based on the nature of federal prisoners and how limited the FIRST STEP Act really is, that only a quite low percentage "of the 4,000 will commit crimes during the period during which, absent FIRST STEP, they would be behind bars."

Mr. Mirengoff goes on:

Second, the BJS study tells us that the crimes that federal drug felons will commit aren’t confined to drug crimes. According to the study, more than three-quarters (77 percent) of released drug offenders were arrested for a non-drug crime within nine years, and more than a third (34 percent) were arrested for a violent crime.  So much for the argument we hear over and over again from Team Leniency that those incarcerated for drug crimes are “non-violent offenders.”...

Again we have the problem of conflating data on state prisoners with federal prisoners.  But here we have an even bigger logical flaw because the BJS recidivism data does not show that persons who committed state drug crimes really were violent offenders before they went to state prison, rather it shows that they became violent offenders (or, more accurately, were arrested for a violent offense like assault) after spending time in prison.  This actually goes to the heart of the argument for any form of (state or federal) prison reform: we need to do a better job of making prison a place where people become better people not worse criminals.

Mr. Mirengoff continues:

Third, the numbers undermine the rational for FIRST STEP used by certain conservative Senators such as John Cornyn. They argue that some states have made great strides when it comes to rehabilitating prisoners. Thus, the argument goes, statistics about recidivism rates among federal prisoners do not provide a sound basis for opposing sentencing reform, provided the reform also includes corrections reform.  The idea is to bring model state prisoner rehabilitation programs into the federal system. This, it is said, will cause recidivism rates to plummet, making America safe for the early release of federal drug felons and for a reduction of mandatory minimums. The BJS numbers tell us that the states, collectively, are doing no better than the feds when it comes to rehabilitating prisoners. 

But what about “model” states like John Cornyn’s home state of Texas, so often touted by sentencing and corrections reform advocates? It turns out that Texas isn’t doing any better than the feds either.  The numbers that reform advocates use to calculate recidivism in Texas count only re-incarcerations, not re-arrests. By contrast, the federal system measures recidivism by re-arrests (to be sure not everyone arrested has committed a crime but then, not everyone who has committed a crime is arrested). If one compares apples to apples — federal re-arrests to Texas re-arrests — the recidivism rate in Texas is actually higher than the federal rate, according to the National Association of Assistant U.S. Attorneys.  FIRST STEP is thus founded on a fiction — the view that enlightened states have discovered the key to the age-old problem of how to rehabilitate criminals. 

Again, a lack of context concerning time and place and prisoners makes this reasoning faulty.  The BJS data reveal that Texas and other states did a lousy job rehabilitating those prisoners who were released back in 2005 before the modern wave of reforms in Texas or anywhere else.  This Right on Crime posting highlights the reform put in place in Texas starting in 2007, and Texas was really the first state to get started on these types of "modern" reforms.   Data on state prisoners released in 2005 will never prove that state reforms started in 2007 are ineffectual.

Now that all said, neither Texas nor any other jurisdiction has all of a sudden "discovered the key to the age-old problem of how to rehabilitate criminals."  This is an age-old problem because it never has had and never will have an easy or obvious solution.  People and crime are way too complicated for magic bullet solutions.  But what Texas and other states have done, and what the FIRST STEP Act aspires to do, is move forward with reforms that have provide to help at least a little bit with the the age-old problem of how to rehabilitate criminals.  No programming ever can or ever will  miraculously drop recidivism rates to near zero, but Mr. Mirengoff wants that to be the prerequisite to any reforms:

Let’s see recidivism rates plummet on a sustained basis, using apples to apples comparisons, before the first federal prisoner is released early and the first mandatory minimum is reduced.

It would be more direct and more honest if Mr. Mirengoff simply said "Let’s never allow a federal prisoner to be released early or any mandatory minimum to be reduced."

Prez Trump meets with Kim Kardashian to discuss clemency ... and then tweets that he "Will be giving a Full Pardon to Dinesh D’Souza"

I have an inkling that years from now lots of academics may be able to get PhDs based on a robust analysis of President Trump's tweeting. And the last 24 hours would make for an especially interesting account of Prez Trump's various perspectives on criminal justice matters.  Here are just a few Trumpian tweet highlights:

"Great meeting with @KimKardashian today, talked about prison reform and sentencing."

"'The recusal of Jeff Sessions was an unforced betrayal of the President of the United States.' JOE DIGENOVA, former U.S. Attorney."

"Not that it matters but I never fired James Comey because of Russia! The Corrupt Mainstream Media loves to keep pushing that narrative, but they know it is not true!"

"Will be giving a Full Pardon to Dinesh D’Souza today. He was treated very unfairly by our government!"

This CNBC article provides some context for this latest (political) act of Presidential clemency in the last of these linked tweets:

President Donald Trump said Thursday he plans to issue a pardon to Dinesh D'Souza, a prominent conservative commentator and filmmaker who was convicted of making an illegal campaign contribution....

D'Souza pleaded guilty in 2014 to reimbursing two of his associates after directing them to contribute $10,000 each to the 2012 Senate campaign of Wendy Long. He also admitted that he knew what he was doing violated the law.

Then-U.S. attorney Preet Bharara announced D'Souza's conviction at the time. "Dinesh D'Souza attempted to illegally contribute over $10,000 to a Senate campaign, wilfully undermining the integrity of the campaign finance process," Bharara said. "Like many others before him, of all political stripes, he has had to answer for this crime -- here with a felony conviction."...

D'Souza was sentenced to spend an eight-hour day each week in community service as part of a five-year probationary term, according to the Southern District of New York. He also has to attend weekly counseling sessions and pay a $30,000 fine.

Texas Sen. Ted Cruz, an ally of both Trump and D'Souza, applauded Trump's decision in a tweet of his own....

The president has used his pardon power five other times since taking office, including the controversial pardoning of former Sheriff Joseph Arpaio in August 2017.

Though I am always pleased to see any president make robust use of his clemency powers, I find disconcerting the obvious affinity Prez Trump has for using this power for the benefit of prominent political allies.  I am surely naive to hope that Kim Kardashian could have explained to Prez Trump how it could be politically valuable for him to start granting clemency to a bunch of just "regular people" that he claims to care about so much.   As I see it, there are lots of federal felons other than Dinesh D'Souza who have been "treated very unfairly by our government!" Perhaps Prez Trump will see and act on that reality eventually. 

"Retributivist Theories' Conjoined Twins Problems"

The title of this post is the title of this notable new paper on SSRN authored by Brittany Deitch.  Here is its abstract:

This Article expands a previously published article, which introduced a novel problem to the centuries-old debate on the retributivist justification of punishment.  The first article applied the problem of conjoined twins, where one commits a crime and the other is innocent, to pure retributivism.  The conjoined twins problem showed that pure retributivism, which holds absolute duties to punish all who are guilty and none who are innocent, fails as a complete theory of punishment.  This Article broadens the application of the conjoined twins problem by applying the problem to other versions of retributivism, including deontological, consequentialist, threshold, negative/weak, victim-conscious, and mixed retributivist theories.  Exploring each version in turn, this Article uses the conjoined twins problem to show that no version of retributivism can serve as a complete theory of punishment.

As Kim Kardashian heads to White House, I hope she advocates for many federal offenders excessively sentenced

In this post earlier this month I asked, "Might Kim Kardashian West actually convince Prez Trump to grant clemency to federal drug offender?" The post was prompted by the news that "Kim Kardashian West and President Donald Trump’s son-in-law and senior adviser Jared Kushner have spoken over the phone about a possible presidential pardon for Alice Marie Johnson, a 62-year-old great-grandmother serving a life sentence for a nonviolent drug offense."  This Vanity Fair article now reports that Kimme (who still has more Twitter followers than Prez Trump) is now headed to the White House to speak in person with Kushner and Prez Trump about a clemency grant.  Here are the details:

After months of back-channel talks between Kim Kardashian and Jared Kushner, the high priestess of reality television is coming to the White House.  By late afternoon on Wednesday, Secret Service agents will wave Kardashian and her attorney through the southwest appointment gate to the West Wing, where they will meet Kushner to discuss prison reform before he walks with them to sit down with President Donald Trump, likely in the Oval Office, along with White House counsel.  According to a person familiar with the meeting, Kardashian plans to ask Trump to pardon a woman serving a life sentence without parole for a first-time drug offense.  (White House staffers have joked about who will get to accompany her to the West Wing, and what they should wear for the occasion. The White House did not immediately respond to requests for comment.)...

Kardashian, a more recent prison reform evangelist, appears to be approaching the White House meeting with equal seriousness.  She will not be bringing the camera crew for her reality show, Keeping Up with the Kardashians, nor will she bring a publicist or her sisters, according to the person familiar with the situation.  (Her husband, Kanye West, who recently tweeted a photo of his red Make America Great Again hat, will not be present either, though there have been talks about him making a White House appearance of his own at a later, to-be-determined date.)  Instead, Kardashian hopes to make a legal argument to President Trump for why he should pardon Alice Johnson, a 62-year-old great-grandmother serving a life sentence without parole for a first-time drug offense.  More than 21 years after Johnson went to prison, Kardashian came across Johnson’s story on Twitter earlier this year and reached out to Ivanka, who connected her to Kushner, according to the source. In an interview earlier this month, Kardashian said that, if given the opportunity, she would “explain to [Trump] that, just like everybody else, we can make choices in our lives that we’re not proud of and that we don’t think through all the way.”...

The Kushner-Kardashian summit marks something of a turning point for the First Son-in-Law. It will be Kushner’s first major act since he was granted a permanent, top-level security clearance last week, after more than a year of negative headlines about why his clearance had been delayed and then downgraded. Among White House tea-leaf readers, the news was received as evidence that perhaps Kushner’s legal exposure in Robert Mueller’s investigation might not be as severe as many had believed it to be, and gave credence to the idea that his standing in the West Wing might be somewhat restored. Those in Ivanka and Kushner’s social orbit in New York joked with each other about how much money they stood to lose on various bets they had made over when Kushner would be indicted by Mueller.

But Kushner and Ivanka are not focused on the chatter, or their old friends in New York — at least not on Wednesday. They plan to host Kardashian for dinner at their home after her presidential sit-down, a private evening with the most famous sibling of America’s other First Family.

I somewhat doubt that Kimme will "make a legal argument to President Trump," but I am hoping somebody (perhaps even Jared Kushner) has thought to urge Ms. Kardashian to talk about excessively sentenced federal defendants beyond Alice Marie Johnson.  In a prior post, I noted that the CANDO website has a detailed list of Top 25 Women who deserve clemency from federal prison.  And the Life for Pot site has its own detailed lists of Nonviolent Inmates (over 62) Serving​ Life without Parole for Marijuanha and Inmates(under 62) Serving ​Sentences of Life without Parole in Federal Prison for Marijuana.  Notably, over the weekend, Ms. Kardashian did tweet here about the story of Matthew Charles (discussed in this recent post).  

It would be something for Kimme to get clemency relief for a single federal defendant; it would be something special is she could secure clemency relief for a number of individuals.  

Prior related post:

• Might Kim Kardashian West actually convince Prez Trump to grant clemency to federal drug offender? 

Two great new judicious commentaries on the federal sentencing guidelines

A helpful reader made sure I did not miss this latest issue of the Hofstra Law Review, which starts with a Colloquim on the topic "Thirty Years Later: A Look Back at the Original U.S. Sentencing Guidelines."  The issue contains  two notable articles authored by two notable jurists.  Here are links to the pieces and their opening paragraphs:

"The Original U.S. Sentencing Guidelines and Suggestions for a Fairer Future" by Stephen G. Breyer

Thank you very much. It is terribly nice for me to be here at Hofstra.  Thirty years ago, as the original Sentencing Guidelines were going into effect, I spoke here to highlight some of the key compromises we as Commissioners reached in writing them.  Ten years later, in 1998, I revisited the Guidelines at the Roman L. Hruska Institute in Nebraska to discuss their history and to offer my recommendations for discussion following a decade of their application. I am here today to commemorate the history of the original Sentencing Guidelines, and to again offer my suggestions to Congress, the Department of Justice, and to the current United States Sentencing Commission.  While much has changed since the Guidelines were considered in those speeches, my suggestions remain the same.

"The Federal Sentencing Guidelines: A Good Idea Badly Implemented" by Jon O. Newman

The best way to mark the thirtieth anniversary of the Federal Sentencing Guidelines is to candidly admit that they are a classic example of a good idea badly implemented.  I propose to consider how the good idea originated, how the first Federal Sentencing Commission implemented it, how the Supreme Court has dealt with the Sentencing Guidelines, what is good about the Guidelines, what are the principal defects of the Guidelines, and the most important step that can now be taken to improve the Guidelines and realize the expectations of those of us who favored sentencing guidelines.

"Blind Justice: Why the Court Refused to Accept Statistical Evidence of Discriminatory Purpose in McCleskey v. Kemp — And Some Pathways for Change"

The title of this post is the title of this new paper by Reva Siegel recently posted to SSRN.  Here is its abstract:

In McCleskey v. Kemp, the Supreme Court refused to accept statistical evidence of race discrimination in an equal protection challenge to the death penalty.  This lecture, on the decision’s thirtieth anniversary, locates McCleskey in cases of the Burger and Rehnquist Courts that restrict proof of discriminatory purpose in terms that make it exceedingly difficult for minority plaintiffs successfully to assert equal protection claims.

The lecture’s aims are both critical and constructive.  The historical reading I offer shows that portions of the opinion justify restrictions on evidence to protect prosecutorial discretion, while others limit proof of discrimination in ways that seem responsive to conservative claims of the era about race, rights, and courts.  Scrutinizing the Court’s reasons for restricting inferences from statistical evidence opens conversations about the principles on which McCleskey rests and the decision’s prospective reach.

A close reading of the decision has led some courts to interpret McCleskey’s restrictions on statistical evidence as a response to particular concerns raised by the record in that case, opening the door to statistical evidence of bias in other equal protection challenges in criminal cases.  At the same time, revisiting McCleskey and its progeny raises questions about the capacity of courts to redress bias in the criminal justice system.  Three decades of living with McCleskey teaches that it is important to design remedies for bias in the criminal justice system that do not depend solely on judges for their implementation.

Disconcerting update on Senate's (lack of) progress on federal statutory criminal justice reforms

The Hill this morning has this extended article under the headline "Senate grapples with prison reform bill." The piece reinforces my fear that criminal justice reform efforts are on the brink of stalling in the upper chamber of Congress. Here are excerpts:

Senate negotiators are warning they are not close to a deal that would allow the prison reform bill to move quickly.

Instead, the fight is pitting two influential GOP senators — Cornyn and Chuck Grassley (Iowa), the Judiciary Committee chairman — against each other as they jockey for competing bills. “We’ve got work to do here on building consensus … but right now we don’t have it,” Cornyn said last week about what happens to prison reform in the Senate.

The GOP divisions could scuttle any chance that the Trump-backed legislation becomes law this year, with leadership unlikely to bring up legislation that would highlight divisions within their own party ahead of the midterm elections. Both Cornyn and Grassley are signaling they plan to press forward with trying to build support for their own separate bills once the Senate returns to Washington, D.C., next week.

Asked if he would budge on his opposition to a prison reform–only bill, Grassley responded, “No.” “We’re going to take up my bill. Or I should say, my bipartisan bill that’s got 28 co-sponsors — equal number Republicans and Democrats....  What the House does through that legislation is about the equivalent of a spit in the ocean compared to what the problem is of too much imprisonment,” Grassley added.

Grassley and Sen. Dick Durbin (Ill.), the No. 2 Democrat, have introduced broad criminal justice reform legislation that would pair prison reforms to changes in sentencing, including reductions in mandatory minimums for certain drug offenses while increasing mandatory minimums for other offenses. Both senators say they’ve made a deal not to separate the prison and sentencing reform components despite pressure from the White House. But that bill is unlikely to be taken up given GOP control of Congress and opposition from key members of the Trump administration. Attorney General Jeff Sessions was an outspoken opponent of the criminal justice reform bill when he served in the Senate.

Grassley acknowledged that he has not convinced Senate Majority Leader Mitch McConnell (R-Ky.) to bring the criminal justice reform bill to the floor. “You’ve got to remember that McConnell doesn’t like the bill, and all I can say is that you ought to let a Republican president who needs a big, bipartisan victory have a bipartisan victory,” he said.

The Kentucky Republican did not move criminal justice reform legislation in 2015 or 2016 amid vocal pushback from four GOP senators. The then-Obama administration supported the bill, and senators in both parties said they had 60 votes to pass it. Supporters of the narrower prison reform–only legislation are seizing on the opposition from key Republicans and the Trump administration as they push for their bill....

Cornyn added that the decision boils down to either passing prison reform or accepting that Congress will take no action for the foreseeable future in the criminal justice space. But it’s unclear if McConnell would be willing to move a bill without Grassley’s support....

And on Capitol Hill, Sen. Tom Cotton (R-Ark.), one of Trump’s closest allies in the Senate, is privately raising concerns about the bill. A spokeswoman for the senator said Cotton has “concerns with provisions in the bill pertaining to lenient treatment for heroin and fentanyl traffickers.” Cotton, Sessions and GOP Sens. David Perdue (Ga.) and Orrin Hatch (Utah) were a small but vocal group of Republicans senators deeply opposed to broader criminal justice legislation that included both prison reform and changes to mandatory minimum sentencing.

Cornyn acknowledged that he has spoken to Cotton about trying to address his issues with the prison reform bill. “I’ve told him we’re going to work with him and come up with something that I think he’ll be able to support,” Cornyn said, “but he did express some concerns.”

Some of many prior related posts:

• House Judiciary Committee approves FIRST STEP Act by a vote of 25-5 after lots of discussion of amendments
• FIRST STEP Act passes US House of Representatives by vote of 360-59(!), but its fate in Senate remains uncertain
• Mapping out the politics for the path forward for federal prison (and sentencing?) reform
• A fittingly depressing account of the current state and potential fate of federal statutory criminal justice reform
• Interesting new US Sentencing Commission analysis of possible impact of Sentencing Reform and Corrections Act of 2017
• On eve of House Committee consideration, distinct advice from criminal justice reform groups on latest federal prison reform proposal 
• Five prominent congressional Democrats write in opposition to federal statutory prison reform without broader sentencing reform
• The latest political back and forth, on both sides of the aisle, as federal prison reform efforts gain momentum 
• Prez Trump pledges to sign prison reform that will be "best in the world"
• "President Trump supports prison reform" 
• On eve of planned House vote on FIRST STEP Act, NY Times editorial misguidedly asserts a "partial bill could end up being worse than nothing" 
• An (encouraging?) update on the state of federal criminal justice reform in US Senate 

"Trump wishes he hadn't picked Jeff Sessions for attorney general"

The title of this post is the headline of this new CNN article.  My first snarky reaction to this headline was to mutter "join the club" and also to recall my failed advocacy here for Ted Cruz to be Prez Trump's AG pick.  Especially given Jared Kushner's obvious commitment to significant criminal justice reforms, I think advocate for sentencing reform have to look at this headline and continued to imagine what might have been had Prez Trump picked another AG.

That all said, I cannot help but wonder if Prez Trump's continuing disaffinity for AG Sessions (and enduring affinity for Jared Kushner) can still serve as a kind of good news for sentencing reform advocates.  Though I doubt AG Sessions will resign, it seems unlikely Prez Trump will fully trust him or back him on issues like criminal justice reform or marijuana reform that obviously divide folks in the Trump Administration and throughout the GOP leadership.  So, if the Senate manages to get some piece of sentencing reform into a federal criminal justice bill, AG Sessions' advocact of a veto will not likely carry the day with Prez Trump if Kushner and key GOP leaders are backing the measure.

The Matthew Charles saga: another sad example of why complete abolition of parole was a mistake for federal sentencing

Last year I wrote an article in this special issue of the journal Federal Probation in which I explained why I believe the federal sentencing system has been disserved by the complete abolition of parole.  I have been thinking about that article in conjunction with the story that blew up my twitter feed over the weekend, the story of Matthew Charles described in this Nashville Public Radio piece.  Here are excerpts from a story that should be read in full:

It looks like a party — but Charles isn’t leaving for a big new job, or trying his luck in a new city. He’s going to prison. To finish out a 35-year term for selling crack to an informant in the 90’s.

Charles had already served 21 years before his sentence was cut short as a result of crack guideline changes passed by the Obama administration. But the U.S. Attorney’s office appealed his release on the grounds that Charles was legally considered a “career offender” due to a prior stint in state prison. They said the retroactive change in the law did not apply to him — and a Court of Appeals agreed.

“He’s rebuilt his life and now they’re coming to snatch it,” says "Wolf", who met Charles at a halfway house in 2016. They’ve volunteered together almost every Saturday since, long after fulfilling their community service requirements.  Wolf is talking to John Hairston, an old friend of Charles’ who flew in from Houston.  They’ve seen each other twice in over two decades — but for years, they wrote each other letters.  “The whole thing pisses me off to be honest,” he says, partly to Wolf and partly to the group of guests seated at another table across the lawn, who're listening intently and shaking their heads. “But it underscores how big a need there is for some reform in the justice system. I don’t care what they say.”

Since his release in 2016, Charles has held a steady job. He volunteers every Saturday, has reconnected with his family, and started a serious relationship. But really, his rehabilitation started years prior.

In prison, he took college classes and correspondence courses, he taught a GED program and became a law clerk. With his training, he helped other incarcerated men understand the judicial system long after their public defenders moved on to the next case.

Charles kept the secrets of those who were illiterate so they wouldn’t face ridicule or harassment — he read them letters from the court and drafted filings for them in the library. He organized bible studies and counseled newcomers. Two decades in federal insitututions — from maximum to low security — without a single disciplinary infraction.

Those that know Charles say they can’t understand why the justice system won’t recognize his rehabilitation. But the federal Bureau of Prisons did away with parole and most "good behavior" incentives years ago — even the best behaved must serve out the majority of their term.

Charles says the whole situation feels surreal. "I'm so tired” he says, after his hearing is postponed for the second time. “I am beyond tired. I always say to myself and others, ‘when is enough going to be enough?’”

Last time Charles faced time in prison, he was a drug dealer in his 20’s. At his sentencing in December 1996, a federal judge called Charles “a danger to society who should simply be off the streets.” Charles doesn’t dispute that. Until then, his entire life was embroiled in chaos....

Now in his 50’s, Charles has the support of friends and his community — and even the judge who ordered him back to prison. Everything is different. And yet, he says, nothing's changed.

On March 28, in a courtroom filled with more than two dozen of Charles’ friends, coworkers and loved ones, Judge Aleta Trauger called Charles’ case “sad” and commended his “exemplary rehabilitation.” But, she added that “her hands were tied” and reimposed his original sentence. She gave him 45 days to get his affairs in order.

The ruling from the Sixth Circuit explaining why Charles' sentencing reduction was improper is available at this link. It makes for an interesting read, as it notes that back in 1996 Charles' "recommended guidelines range [was] 360 months to life, but [the sentencing court] varied upward and imposed a 420-month sentence based on Charles’ background and misconduct." (I highlight this line because it itself reflects how the passage of time distorts reality: the original sentencing court did not quite "vary" upward because the concept of a "variance" did not exist prior to the 2005 Booker decision.) 

The initial decision to impose a prison sentence of 35 years rather than just 30 years on Charles may have made perfect sense circa 1996.  As explained by the Sixth Circuit, the district court had to consider "Charles’ many prior offenses: kidnapping a woman on two consecutive days 'for the purpose of terrorizing her'; burglarizing a home; and fleeing from a police interrogation, shooting a man in the head, and attempting to run off in the victim’s car."  But, obviously, Charles is now a much different man than the man he was when committing all these prior offenses.  But, just as obviously, modern federal sentencing law presents no way to give effect to changed realities because parole and other like mechanisms were vanquished through the Sentencing Reform Act of 1984.

I am a strong supporter of the FIRST STEP Act in part because it includes some parole-like features to enable the early release of offenders who have demonstrated rehabilitation potential in various ways.  (In my Federal Probation article, I describe certain prison reform efforts by Congress as a kind of "parole light.")  But I continue to think the federal system would be even better served by considering a more general return of parole, at least for sentences of a decade or longer, or at least considering the kind of second-look resentencing provisions (allowing judicial modification after serving 15 years of prison sentence) that have been put forward in the new American Law Institute's revised Modern Penal Code sentencing provisions (discussed here and here by leading academics).

"In Justice Today" has now become "The Appeal"

In this post about one year ago I noted the creation of "In Justice Today" a new publication of the Fair Punishment Project at Harvard Law School. The publication had an introductory post that suggested that "the local elected prosecutor" was to be a particular focal point of the new publication's reporting.  Now, via email, I have been told of this (small?) transition:

Dear friends,

I am thrilled to be unveiling the Justice Collaborative’s newly renamed, revamped, and relaunched criminal justice publication: The Appeal. The Appeal, which steps in where In Justice Today leaves off, is a daily news source of original reporting focusing on local criminal justice systems — the most significant drivers of mass incarceration.

In creating The Appeal, we wanted something that was rigorous and hard-hitting, and engaging to the average reader.  We are putting a human face on the practices of local criminal justice systems.  Today, Professor Angela J. Davis outlines the importance of prosecutors, and Raven Rakia and Ashoka Jegroo explore the history of the push to close Rikers Island.  Please check them out and let us know what you think!

It’s my sincerest hope that you enjoy our brand new publication and find it useful in your own work. We will continue digging deep in counties across the U.S. to shed light on the most undercovered parts of the system. 

Too much criminal justice reporting relies on politicians, prosecutors, and law enforcement officials as the arbiters of the truth. We aim to be the journalistic watchdog that changes that.

If you have any feedback on our new look—or just want to draw our attention to something you’d like to see in The Appeal — please drop us a line!

Sincerely,
Sarah Leonard, Executive Editor The Appeal

I sense that local criminal justice systems rather than just local elected prosecutors are now more clearly the focal point of this re-branded effort.  But it seems also that the Fair Punishment Project at Harvard Law School is no longer the main sponsor of this publication, though its new ABOUT page is somewhat opaque.

Whatever the backstory particulars, I always found a lot of interest and value at "In Justice Today" and I presume I will likewise find much of interest and value at "The Appeal."

SCOTUS limits reach of Mandatory Victims Restitution Act in Lagos ... and talks about Fourth Amendment

The US Supreme Court handed down two opinions and a dismissal this morning, all from the criminal side of its docket.  The one sentencing decision came in Lagos v. United States, No. 16-1519 (S. Ct. May 29, 2018) (available here).  Here is hope the unanimous opinion by Justice Breyer gets started:

The Mandatory Victims Restitution Act of 1996 requires defendants convicted of a listed range of offenses to

“reimburse the victim for lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.” 18 U.S.C. §3663A(b)(4) (emphasis added).

We must decide whether the words “investigation” and “proceedings” are limited to government investigations and criminal proceedings, or whether they include private investigations and civil proceedings.  In our view, they are limited to government investigations and criminal proceedings.

Got that? The short Lagos opinion goes on to provide a mini-primer on federal restitution statutes, but both the issue and the opinion here ensures this ruling will not be too long remembered.

Also not to be too long remembered is a DIG (dismissed as improvidently granted) from SCOTUS today in City of Hays, Kansas v. Vogt, No. 16-1495.  The only SCOTUS decision today likely to get any real attention is a Fourth Amendment ruling in Collins v. Virginia, No. 16-1027 (S. Ct. May 29, 2018) (available here).  Justice Sotomayor starts the opinion for the Court off succintly: "This case presents the question whether the automobile exception to the Fourth Amendment permits a police officer, uninvited and without a warrant, to enter the curtilage of a home in order to search a vehicle parked therein. It does not."  Justice Alito dissents alone, starting this way: "The Fourth Amendment prohibits 'unreasonable' searches. What the police did in this case was entirely reasonable. The Court’s decision is not."

The merits aside, the Collins decision will really garner attention because of a lengthy concurrence by Justice Thomas.  Writing alone, he urges the Court to reconsider the reach of the exclusionary rule.  Here is how his opinion starts and ends:

I join the Court’s opinion because it correctly resolves the Fourth Amendment question in this case.  Notably, the only reason that Collins asked us to review this question is because, if he can prove a violation of the Fourth Amendment, our precedents require the Virginia courts to apply the exclusionary rule and potentially suppress the incriminating evidence against him. I write separately because I have serious doubts about this Court’s authority to impose that rule on the States.  The assumption that state courts must apply the federal exclusionary rule is legally dubious, and many jurists have complained that it encourages “distort[ions]” in substantive Fourth Amendment law, Rakas v. Illinois, 439 U.S. 128, 157 (1978) (White, J., dissenting)....

In sum, I am skeptical of this Court’s authority to impose the exclusionary rule on the States.  We have not yet revisited that question in light of our modern precedents, which reject Mapp’s essential premise that the exclusionary rule is required by the Constitution.  We should do so.

Another helpful review of analysis of huge set of federal sentencing outcomes

In this post last week I discussed this amazing new working paper by Alma Cohen and Crystal Yang titled "Judicial Politics and Sentencing Decisions."  I am now pleased to giving attention to this research in the New York Times through this latest "Sidebar" column.  His piece is headlined "Black Defendants Get Longer Sentences From Republican-Appointed Judges, Study Finds," and here are excerpts: 

Judges appointed by Republican presidents gave longer sentences to black defendants and shorter ones to women than judges appointed by Democrats, according to a new study that analyzed data on more than half a million defendants.  “Republican-appointed judges sentence black defendants to three more months than similar nonblacks and female defendants to two fewer months than similar males compared to Democratic-appointed judges,” the study found, adding, “These differences cannot be explained by other judge characteristics and grow substantially larger when judges are granted more discretion.”...

It has long been known that there is an overall racial sentencing gap, with judges of all political affiliations meting out longer sentences to black offenders. The new study confirmed this, finding that black defendants are sentenced to 4.8 months more than similar offenders of other races. It was also well known, and perhaps not terribly surprising, that Republican appointees are tougher on crime over all, imposing sentences an average of 2.4 months longer than Democratic appointees.

But the study’s findings on how judges’ partisan affiliations affected the racial and gender gaps were new and startling.  “The racial gap by political affiliation is three months, approximately 65 percent of the baseline racial sentence gap,” the authors wrote.  “We also find that Republican-appointed judges give female defendants two months less in prison than similar male defendants compared to Democratic-appointed judges, 17 percent of the baseline gender sentence gap.”

The two kinds of gaps appear to have slightly different explanations.  “We find evidence that gender disparities by political affiliation are largely driven by violent offenses and drug offenses,” the study said.  “We also find that racial disparities by political affiliation are largely driven by drug offenses.” 

The authors of the study sounded a note of caution.  “The precise reasons why these disparities by political affiliation exist remain unknown and we caution that our results cannot speak to whether the sentences imposed by Republican- or Democratic-appointed judges are warranted or ‘right,’” the authors wrote.  “Our results, however, do suggest that Republican- and Democratic-appointed judges treat defendants differently on the basis of their race and gender given that we observe robust disparities despite the random assignment of cases to judges within the same court.”

The study is studded with fascinating tidbits.  Black judges treat male and female offenders more equally than white judges do. Black judges appointed by Republicans treat black offenders more leniently than do other Republican appointees. More experienced judges are less apt to treat black and female defendants differently.  Judges in states with higher levels of racism, as measured by popular support for laws against interracial marriage, are more likely to treat black defendants more harshly than white ones.

Prior related post:

• Amazing new empirical research in federal sentencing outcomes detailing disparities based on political background 

Sad uncertain realities behind ugly headline about child rape sentencing

The headline of this story understandably caught my attention and had me wondering: "California man sentenced to 90 days of house arrest for rape of 5-year-old girl."  A bit of digging revealed, via press reports here and here, a bit more of the story behind the story that would seem to partially explain this outcome.  Excerpts below come from the two linked pieces, respectively:

A 79-year-old man who pleaded no contest to felony statutory rape of a child was sentenced this week to 90 days' detention and will not have to register as a sex offender. The sentence upset the parents after they gave emotional testimony at the hearing....

Despite the word "rape," the crime did not involve penetration, said Robert Himelblau, supervising deputy district attorney for San Joaquin County. Gregory Davenport, an attorney for Burgess, said the charge is based on a claim by the girl's mother that she saw Burgess stick his hand down her daughter's pants in 2016.

At the hearing, the judge reminded the parents that they thought the plea agreement was fair when it was reached.... Davenport told the Associated Press on Friday that Burgess accepted the plea deal despite being innocent because he is in frail health and wanted to move on with his life. Burgess denies ever touching the child inappropriately. "The whole case was based upon some minor touching that my client denied even occurred," Davenport said....

Lyle Burgess, 79, was sentenced by San Joaquin County Superior Court Judge Ron Northup to either 90 days in an alternative-work program or in-home detention plus five years of informal probation. He does not have to register as a sex offender.

Burgess, who founded Rare Parts Inc. in Stockton in 1981 — an automotive parts manufacturer and distributor — will in all likelihood opt for in-home detention due to his frail physical and mental health, according to defense attorney Gregory Davenport. “My client maintains his innocence,” Davenport said outside the courtroom.

During Wednesday’s sentencing hearing, both parents of the victim gave emotional testimony about what their daughter has been going through, the impact on their family and their dissatisfaction with Burgess’ conviction. The parents’ names are not being used to protect the identity of the minor victim. “Our daughter has been harmed by this man continuously,” the victim’s mother said through tears, describing two incidents she says she witnessed between Burgess and her daughter at Burgess’ cabin in Calaveras County in the fall of 2016.

“I’m incredibly disgusted by his behavior and continuously disgusted by his lies,” she said before describing his sentence as “getting off so easy” and not registering as a sex offender. “I want other kids to be protected by possible future abuse by this man,” she said.

The victim’s father, who has known Burgess for more than two decades, said: “I don’t have too many prized possessions in this world other than my family. (My daughter) will remember this the rest of her life. She sleeps on the floor outside our room.”

Northup told the parents their statements do have an impact but “courts are somewhat limited” in ruling on a negotiated plea and reminded them that at the time it was reached, they felt it was fair.

The parents and the victim recently filed a civil case against Burgess seeking unspecified damages for sexual abuse and intentional infliction of emotional distress.... Davenport, Burgess’s attorney, said: “I believe the allegations are motivated by greed. They are using this instance to try to gain financially.”

I do not know the ins-and-outs of California plea and sentencing procedure, but these articles suggest that the sentence here was largely determined by the terms of a plea deal (and one that the parents of the victim assented to).  This other local article, notably, provides this additional (confounding?) account of matters from the prosecutors:

According to the San Joaquin County District Attorney's Office, Burgess' sentence was initiated by the county court because of his age and health.  When Burgess was arrested in 2016, he was originally booked on four counts of lewd acts upon a child.  The charge was later changed to unlawful sexual intercourse with a minor, though the DA says there were no allegations the girl was "sexually penetrated." Prosecutors say the plea deal was agreed upon by both Burgess and the girl's family.

I do not know what it means for this sentence to have been "initiated by the county court because of his age and health," but I do know it now sounds as if the sentencing judge largely attributes the outcome to the plea deal and the prosecutions largely attribute the plea deal to the sentencing judge.   As I see it,  sadness persists from every perspective in this case.  And I surmise from my Twitter feed that the case is generating anger, too, and I wonder if recall or other campaigns targeting the judge or DAs might be in the offing.

"Cell Phones and 'Excessive Contact': The Contradictory Imperatives Facing California’s Parole-Eligible Lifers"

The title of this post is the title of this new article authored by Nazgol Ghandnoosh now available on-line. Here is its abstract:

A growing literature emphasizes that U.S. correctional systems have remained committed to rehabilitative goals despite their turn toward incapacitation and punishment.  Although past research has documented this commitment in prisons and parole supervision agencies, less is understood about how it is manifested in the discretionary parole release process.

This article explores whether and how parole boards encourage people serving parole-eligible life sentences (“lifers”) to maintain ties to friends and family outside of prison, and the results of such encouragement.  Interviews, ethnographic fieldwork, and parole-hearing transcripts reveal that California’s parole board encourages such rehabilitative ties through comments at parole hearings and through its parole-eligibility criteria.  But to sustain these relationships, some lifers engage in misconduct to bypass restrictive prison policies by using contraband cell phones or engaging in physical contact with visitors that is deemed “excessive.”  When detected, these disciplinary infractions become a stated cause of parole denials.

An (encouraging?) update on the state of federal criminal justice reform in US Senate

The New York Times has this new article, headlined "Why Some Senators Who Want a Criminal Justice Overhaul Oppose a Prisons Bill," reporting on the latest state of debate over federal statutory criminal justice reforms. The report is a bit encouraging, though also a bit worrisome.  Here are highlights:

In a private huddle on Wednesday on the Senate floor, a group of senators corralled Senator Mitch McConnell, Republican of Kentucky and the majority leader, and asked for time for a last-ditch negotiation to try to find an acceptable compromise.  Quite rightly, backers of changes in mandatory minimum laws fear that this may be the only chance for years to push a major criminal justice measure through Congress and that sentencing revisions — a more politically difficult lift — will languish if legislation aimed at reducing prison recidivism becomes law on its own.

“You don’t get many opportunities around here to do anything meaningful or substantive,” said Senator Richard J. Durbin, Democrat of Illinois and a chief author of the sentencing provisions. “Let’s not waste this one. Let’s get this right.”

Mr. Durbin has a powerful ally in Senator Charles E. Grassley, Republican of Iowa and the chairman of the Judiciary Committee. Mr. Grassley came around slowly to sentencing changes, but once he got on board, he has been committed. He warned again last week that no criminal justice measure can pass the Senate without new flexibility in mandatory minimum sentences. “It’s the right thing to do,” Mr. Grassley said in a speech.

Mr. McConnell could try to go around Mr. Grassley and advance the House measure, which passed 360 to 59.  It allocates $50 million a year over five years for job training, education and mental health and drug treatment, and provides incentives for prisoners to take part in the programs.  But Mr. Grassley has been Mr. McConnell’s dedicated partner in pushing judicial nominations through the Senate — and in blocking President Barack Obama’s Supreme Court nomination of Merrick B. Garland in 2016.  His opposition would be an embarrassing obstacle.  Not to mention that Mr. McConnell is not that keen on criminal justice legislation in general, and he would probably be reluctant to provoke a midterm election season battle over a measure for which he has little personal enthusiasm. He refused to put the broad prison and sentencing bill to a vote in the last Congress despite bipartisan support because of objections from conservatives, including Senator Jeff Sessions, who is now the attorney general.

In his meeting on the floor with senators including Mr. Durbin, Mr. Grassley and John Cornyn of Texas, the No. 2 Senate Republican and a chief sponsor of the prison bill, Mr. McConnell was noncommittal but left open the prospect of moving ahead with a bill if an agreement could be reached.  “I said, ‘Look, guys, if you all can get your act together and come up with something that you’re comfortable with, that the president will sign, I’d be willing to take a look at it,’ ” Mr. McConnell said in an interview with The New York Times. But he said he was not interested in wasting the Senate’s time.

“What I’m not willing to do, just to refresh your memory from a couple of months ago, is have a freewheeling debate like we did on immigration for a whole week,” Mr. McConnell said. “We squandered a week and nothing happened. So I’m in the business of trying to make a law, not make a point.”

Mr. Durbin and other Senate backers of the sentencing changes believe they can make some relatively modest additions to the prison legislation to achieve some but not all of their goals.  They are focused on narrowing the definition of crimes that can prompt long mandatory minimum sentences for nonviolent drug crimes and on cutting the length of some of the required sentences.  They say that such changes would have a much more consequential effect on easing the United States’ mass incarceration than solely focusing on recidivism. “We might not get everything we want, but there is some sentencing reform we can achieve with this bill,” said Senator Mike Lee, Republican of Utah.

But others believe that throwing sentencing provisions into the mix will kill the prison bill, particularly with the midterm elections looming.  The sentencing changes have previously proved an impossible sell to conservative Republicans who believe the reductions in mandatory minimums make them look soft on crime.  It was that previous divide that kept Mr. McConnell from moving ahead with the more comprehensive version.

Backers of the prison bill, which is titled the First Step Act, say that Congress should take what it can get immediately and continue to press ahead on the more challenging sentencing changes. “The First Step Act is not the end,” said Representative Hakeem Jeffries, Democrat of New York and an author of the measure. “It’s not even the beginning of the end. It’s simply the end of the beginning on a journey undertaken to eradicate our mass incarceration epidemic in America.”

Those pursuing a more comprehensive approach say that the consideration of the prison bill alone could doom their efforts because it will allow lawmakers and the White House to claim they acted on criminal justice without getting at the real issue.  “It is one thing to say we are going to open the door an inch wider for those wanting to leave prison while ignoring the fact that they are flooding in through the front door,” Mr. Durbin said.

Senators now have what appears to be a slight opening to fashion a compromise they can try to sell to skeptical and resistant colleagues.  If they fail, proponents of the prison legislation will no doubt begin clamoring for action on their measure, setting up a showdown with the originators of the criminal justice system proposal over what constitutes true reform.

Some of many prior related posts:

• House Judiciary Committee approves FIRST STEP Act by a vote of 25-5 after lots of discussion of amendments
• FIRST STEP Act passes US House of Representatives by vote of 360-59(!), but its fate in Senate remains uncertain
• Mapping out the politics for the path forward for federal prison (and sentencing?) reform
• A fittingly depressing account of the current state and potential fate of federal statutory criminal justice reform
• Interesting new US Sentencing Commission analysis of possible impact of Sentencing Reform and Corrections Act of 2017
• On eve of House Committee consideration, distinct advice from criminal justice reform groups on latest federal prison reform proposal 
• Five prominent congressional Democrats write in opposition to federal statutory prison reform without broader sentencing reform
• The latest political back and forth, on both sides of the aisle, as federal prison reform efforts gain momentum 
• Prez Trump pledges to sign prison reform that will be "best in the world"
• "President Trump supports prison reform" 
• On eve of planned House vote on FIRST STEP Act, NY Times editorial misguidedly asserts a "partial bill could end up being worse than nothing" 

UPDATE:  This new commentary authored by Derek Cohen, headlined "Prison reform is worth fighting for in the Senate," makes the case for the FIRST STEP Act. Eugene Robinson has authored this distinct commentary making a somewhat different pitch for the bill under the headline "Prison reform bill isn't perfect, but it's a First Step."

Interesting accounting of clemency's continued decline in New Mexico

This past week I came across this terrific lengthy local article looking in-depth at clemency realities in one state. The piece's headlined reveals its essential finding: "Analysis: Pardons have plummeted in New Mexico under Gov. Martinez." Here are excerpts:

SFR and New Mexico In Depth have assembled what is perhaps the most complete picture ever of how recent New Mexico governors have used their constitutional power of executive clemency.  That includes pardons, for people who have served their time, and commutations, in which sentences are reduced for those still incarcerated.

A court victory in a public records lawsuit filed by SFR enabled this close examination, which found, among other things, that Ellis resides in an overwhelming majority: She has asked Martinez for a pardon—and didn’t receive one.

An analysis of hundreds of pages of documents and multiple spreadsheets by the news organizations shows that Martinez has granted just three pardons — an act that clears what are, in most cases, decades-old crimes from people’s criminal records — since taking office.  More significantly, the analysis reveals a drastic drop in the number of people even requesting clemency under Martinez, compared to the previous two administrations.

Former two-term governors Gary Johnson and Bill Richardson fielded more than 1,000 clemency applications each; Martinez has received roughly 250 applications for mercy in her seven and half years as governor, according to records turned over by the state.  Johnson, then a Republican and now a Libertarian, granted nearly 9 percent of pardon applications between 1995 and 2003, the analysis found.  Richardson, a Democrat who served from 2003 through 2010, had a 7 percent pardon grant rate.

Martinez: 1 percent.

Johnson commuted two women’s sentences, and Richardson gave one woman a commutation.  Martinez has not granted any commutation requests, the records show.

The meager grant rate for Martinez, a former district attorney in Las Cruces who is approaching the end of her second and final term, fits with her govern-as-prosecutor style on criminal justice issues — including her ongoing push to reinstate the death penalty, calls for increased sentences for a host of crimes and even coming around to support Trump’s border wall idea.

The precipitous decline in applications surprised a pair of longtime New Mexico criminal defense lawyers who have decades of experience in post-conviction work.  Both concede, however, that they’ve told prospective clients not to bother with clemency applications until there’s a new governor, given Martinez’ rhetoric since she took office in 2011.  One of the lawyers, Mark Donatelli of Santa Fe, calls Martinez’ clemency record an “abuse of power in the sense of not using the powers that are granted to her by the Legislature and our constitution.”

Mark Osler, a professor at the University of St. Thomas in Minnesota whose scholarship, writing and teaching have focused on clemency nationwide, says he’s not aware of any other states that have seen applications fall off the cliff as they have here. He called Martinez’ stinginess with clemency a “dereliction of duty.”

“Pardons, which effectively are a restoration of rights, are meant to be part of the system; they’re included in state constitutions, and we don’t throw constitutions together casually,” Osler says. “There’s something deeply troubling about kicking part of the system out from under people.”

Donatelli and Margaret Strickland, president of the New Mexico Criminal Defense Lawyers Association, say pardons are especially important in New Mexico, which does not allow expungement — the wiping clean of some criminal records after a certain period of time — even for misdemeanors. In the internet age, when arrest records are a mouse-click away, a pardon could go miles toward landing someone a job.

Martinez, however, has granted pardons to three people who are at or near retirement age.  Their crimes: welfare fraud; breaking and entering; and larceny. The governor has denied at least 65 applications for clemency outright; she deemed at least another 71 “ineligible” for various reasons and, in 32 cases, her office did not provide a disposition or an explanation for where the applications stand.

Some of the pardon files Martinez’ office provided are incomplete, leaving a question mark hovering over the disposition of some 85 cases, some of which the governor appears not to have acted on.  The data leaves other questions, too.  It appears the state does not track the race, ethnicity, age or even gender of those who have applied for pardons. Nor is there an indication of how many applicants had the assistance of a lawyer.

What is clear, however, is that people have sought clemency for crimes ranging from first-degree murder — automatically ineligible for pardons here, by law — to rape, armed robbery, writing worthless checks and drug possession charges that are no longer felonies in New Mexico.  And although Martinez has turned away a higher percentage of applicants than her predecessors, the vast majority of those who have filled out a pardon application during the past 24 years have come away empty-handed.

Martinez has steadfastly refused to discuss her pardon record, going so far as to spend hundreds of thousands of dollars of state money on a private lawyer to keep secret the records that underpin this story.  She remained silent through multiple requests for comment on the findings by SFR and NMID....

During her first four-year term, Martinez put more requirements in place for applying for pardons, a process that already forced applicants to have a high school diploma and to wait various lengths of time after their convictions before applying. She has barred pardons for a host of crimes, including misdemeanors, multiple DWIs and sexual offenses.

New Mexico is one of 29 states where the power of executive clemency is vested in the governor alone, according to a scholarly paper published by the American Bar Association in 2009. New Mexico state law allows for its Parole Board to advise the state’s chief executive on pardons.  And the governor does frequently seek Parole Board input; the SFR and NMID analysis shows the Parole Board weighed in on 134 requests under Johnson, 259 requests under Richardson and at least 68 requests under Martinez.

In 13 cases, Martinez went against the Parole Board’s recommendation. Such was the case with Bruce Gillis, who in 1974 was convicted of a fourth-degree felony for distributing marijuana.  Gillis told Martinez in a letter that he was 20 years old, “immature and irresponsible,” and pleaded guilty to the charge at the advice of a lawyer, but later turned his life around.  The Parole Board recommended a pardon. Martinez denied it.

Generally, in states where pardon power isn’t invested in a single person, rates of successful pardon applications are higher, says Osler, the Minnesota law professor.  For example, Georgia and South Carolina, where parole boards have ultimate authority over pardons, issue pardons at higher rates than Vermont, Minnesota and New Mexico, three states where the governor has complete control.  “You tend to see fewer granted when the executive has absolute power, because it becomes a political concern,” he says.

Examining thoughtfully modern trend to prosecute overdose deaths as homicides

The New York Times has this lengthy new article headline "They Shared Drugs. Someone Died. Does That Make Them Killers?".  The subheadline highlights the basic theme of the piece: "Prosecutors are increasingly treating overdose deaths as homicides, but they aren’t just going after dealers.  Friends, family and fellow users are going to prison."  To its credit, the Times here tried to dig into qualitative and quantitative stories here, and I recommend this piece in full.  Regular readers know that I have lamented, such as in prior posts here and here, that reporting on the decision to use homicide laws in overdose cases often fails to note that many states punish unintentional homicide less severely than the feds punish basic drug dealing.  Though the Times fails in this regard as well, it still provides the most thoughtful account of what surrounds these cases.  Here are excerpts:

As overdose deaths mount, prosecutors are increasingly treating them as homicide scenes and looking to hold someone criminally accountable. Using laws devised to go after drug dealers, they are charging friends, partners and siblings. The accused include young people who shared drugs at a party and a son who gave his mother heroin after her pain medication had been cut off. Many are fellow users, themselves struggling with addiction.

Such cases are becoming more common even as the role of the criminal justice system in combating drug abuse has become hotly contested, and even as many prosecutors — including those who pursue overdose death cases — say they embrace the push to treat addiction as a public health crisis rather than a crime.

Overdose prosecutions, they say, are simply one tool in a box that should include prevention and treatment. But there is no consensus on their purpose. Some believe they will reduce the flow of drugs into their communities, deter drug use or help those with addiction “hit bottom.” To others, the cases are not meant to achieve public policy goals, but as a balm for grieving families or punishment for a callous act. “I look at it in a real micro way,” said Pete Orput, the chief prosecutor in Washington County outside Minneapolis. “You owe me for that dead kid.”

Who owes whom for what is less clear in the case of the Malcolm family in Breckenridge, Colo., where Michael Malcolm’s younger son was charged in the overdose death of his older brother, with whom he shared drugs purchased on the internet. The cost of prosecution and incarceration, Mr. Malcolm said, would have been better spent on addiction treatment that the family could not afford. “It’s kind of like blaming the leaves on the tree, you know?” he said. “What about the roots?”

In 15 states where data was available, The New York Times found more than 1,000 prosecutions or arrests in accidental overdose deaths since 2015. Between 2015 and 2017, the number of cases nearly doubled. Dozens more cases were documented in news reports. In all, overdose prosecutions were found in 36 states, with charges ranging from involuntary manslaughter to first-degree murder. In Minnesota, the number of such cases — sometimes referred to as “murder by overdose” — quadrupled over a decade. Pennsylvania went from 4 cases in 2011 to 171 last year after making it easier to prosecute....

Many of those convicted are serving hard time: A Long Island woman whose best friend texted her from a business trip asking for heroin was sentenced to six years after he died taking the drugs she sent him. A former pipe fitter in Minnesota who shot speedballs with a mother of three got 11 years. A Louisiana man who injected his fiancée — both were addicted, his lawyer said — got life without parole....

The concept of overdose prosecutions took hold after the cocaine-related death in 1986 of Len Bias, the college basketball star, two days after he was drafted by the Boston Celtics. A friend, who called 911 when Mr. Bias collapsed, was accused of providing the cocaine, but was acquitted. Soon after, states began passing so-called Len Bias or “drug delivery resulting in death” laws. Louisiana made it second-degree murder. Pennsylvania created a crime punishable by up to 40 years in prison. Congress passed the sweeping 1986 Anti-Drug Abuse Act, which included a mandatory minimum sentence of 20 years for federal cases in which drugs resulted in death or serious injury.

The Len Bias laws were supposed to go after drug dealers — “greed-soaked mutants,” Howell Heflin of Alabama called them on the Senate floor. But the role of dealer is far less clear cut than lawmakers envisioned. The legal definition of drug dealing, or “distribution,” typically covers behavior that is common for even casual users, including sharing, giving drugs away or getting reimbursed for a buy. Under complicity laws, helping to arrange a deal can be treated the same as dealing....

Despite the high cost of imprisonment — $33,000 a year on average, compared with roughly $5,000 to $7,000 for treating addiction with methadone — new Len Bias laws have begun to appear. Delaware enacted one in 2016, and West Virginia did so last year. In Rhode Island, Attorney General Peter Kilmartin has proposed a mandatory life sentence....

In order to gain a better sense of where defendants fit on the user-dealer continuum, The Times looked to Pennsylvania, where overdose prosecutions have soared since a change in the law in 2011 made it unnecessary to prove that the accused had malice toward the victim. The Times examined drug-related death cases filed in criminal court in the first half of last year — 82 cases in all, with 80 defendants. At least 59 of the accused were drug users themselves, according to police reports, court filings and interviews with law enforcement officials and defense lawyers. Roughly half had a relationship with the victim other than that of dealer. That group included six boyfriends, one girlfriend, a cousin, a brother and a son. A few of those charged had tried to save the victims. (Good Samaritan laws protect those who call for help from drug possession charges, but generally not homicide charges.)...

Overdose prosecutions picked up steam under the Obama administration. In 2015, the National Heroin Task Force recommended that cases against heroin dealers whose drugs proved fatal should be prioritized for three reasons: the product might be particularly potent, the prosecutions would serve as a deterrent, and the attention would educate the public about the “severe harm caused by heroin.”...

Even hard-liners like John Walters, the director of the White House Office of National Drug Control Policy under President George W. Bush, question the use of overdose homicide prosecutions without more systematic proof that they reduce drug use and emergency room visits. “In the absence of that, this is all gestures,” Mr. Walters said.

But many law enforcement officers hope that the cases act as a deterrent. When five people overdosed in two months in Twin Lakes, Wis. (population 6,000), the police charged 10 with reckless homicide. “We kind of want to put a bubble around our community and say we don’t — we’re not going to accept this here,” said Adam Grosz, the chief of police. But one of his detectives, Katie Hall, said that the arrests had little effect on supply and demand: “If we can take one off, well, then they just go to the next one.”

Paradoxically, the punitive approach to overdoses is underpinned by the same rationale as the push to treat addiction as a public health issue. In the prosecutorial worldview, a criminal investigation dignifies victims by treating their deaths as crimes instead of sad inevitabilities. “The analogy for me is the dead prostitute,” Mr. Orput said. “You know, years ago, the cop would look and go, ‘Well, that’s what happens,’ and that’s what they’d say with the junkie: ‘That’s why we don’t do drugs.’”

Some of many prior related posts:

• Noticing how federal drug laws, rather than state homicide laws, are used to severely punish drug distribution resulting in death
• Another look at trend to prosecute some opioid overdose deaths as homicides 
• "An Overdose Death Is Not Murder: Why Drug-Induced Homicide Laws Are Counterproductive and Inhumane" 
• Distinct approaches to the opioid epidemic 
• Should I be more troubled by drug dealers facing homicide charges after customers' overdose death?
• "Heroin, Murder, and the New Front in the War on Drugs"