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June 29, 2019

"Recidivism of Felony Offenders in California"

The title of this post is the title of this intricate new report from the Public Policy Institute of California. Here is part of the report's summary:

California has undertaken numerous corrections reforms in the past decade — including public safety realignment in 2011 and Proposition 47 in 2014 — in hopes of reducing the prison population, maintaining public safety, and improving persistently high recidivism rates.  These reforms lowered incarceration levels, and in their aftermath, crime rates have fluctuated.  Recidivism rates provide another important window into public safety and the effectiveness of correctional interventions under these policy changes.

For the first time, this report provides recidivism rates for all types of felony offenders in California — including those sentenced to prison, jail only, jail followed by probation, or probation only.  Previously, statewide recidivism outcomes could only be tracked for individuals leaving prison custody.  This study draws on unique data from 12 representative counties, allowing us to estimate two-year recidivism rates for felony offenders released in the four years following realignment from October 2011 to October 2015.  We focus on felony offenders to provide insight into outcomes for those who have been convicted of more severe offenses.

Our analysis of recidivism relies on rearrest and reconviction rates, which are often used to capture changes in reoffending in response to a policy change.  However, it is important to note that these rates may also reflect changes in the practices of criminal justice agencies.  For example, if a policy change led to a shift in policing strategies, such as reduced enforcement for drug possession offenses, we may observe changes in rearrest rates even if there is no change in the underlying behavior of former offenders. We find:

  • Overall recidivism rates have declined for felony offenders. The share of felony offenders rearrested for any offense within two years declined somewhat from 68 percent to 66 percent over the four-year period.  The two-year reconviction rate for any offense dropped substantially from 41 percent to 35 percent.
  • Reductions in recidivism rates were largest for felony offenses. The share of offenders rearrested for a felony offense decreased moderately from 56 percent to 53 percent in the four years after realignment. The felony reconviction rate dropped markedly from 30 percent to 22 percent.  These reductions were concentrated in later years and may be linked to Proposition 47.
  • Rearrest rates for felony offenses increased toward the end of the period. When we examine the last several months for which we have data, we see that 50 percent of individuals released in June 2015 were rearrested for felonies within two years, compared with 53 percent for those released in October 2015....
  • Individuals released from prison had the highest reconviction rates. This group also served the longest and most costly incarceration terms. This finding is consistent with previous research that has found little evidence linking more severe sanctions to lower recidivism.
  • Recidivism rates are likely to be related to multiple factors. Offender behavior is one factor. But policy changes can also play a role in that they may affect the practices of criminal justice agents, such as police officers and district attorneys. More and better data are needed to pinpoint the relevant causes of changes in recidivism.

Additional efforts to improve our understanding of the relationships among policy, implementation, and recidivism outcomes are essential to move the state toward a more evidence-based criminal justice system.  Facilitating better data connections across correctional institutions, intervention programs, and law enforcement would help further the state’s goals of improving public safety, reducing costs, and ensuring equity in its correctional systems.

June 29, 2019 in Data on sentencing, Reentry and community supervision | Permalink | Comments (1)

June 28, 2019

Reflect, respond, react to latest SCOTUS Term by writing a commentary for the Federal Sentencing Reporter

Wearing my hat as an editor of the Federal Sentencing Reporter, I am happy to reproduce this solicitation from the journal below (while being eager to encourage readers to put together their views ASAP for possible publication):

Seeking Commentaries for Federal Sentencing Reporter Issue on “The October 2018 SCOTUS Term and the Criminal Justice Work of its Members”

In a September SCOTUSblog posting, Professor Rory Little called the criminal cases on the Supreme Court's docket for its October 2018 Term a "law professor’s dream."  He noted the Term included big constitutional cases addressing the Double Jeopardy Clause and the Excessive Fines Clause, as well as perennial hot topics involving application of the death penalty and the Armed Career Criminal Act.  With the Term now concluded, the Federal Sentencing Reporter (FSR) is eager to take stock through a call for papers for publication in a special October 2019 FSR issue.  And we are looking to publish thoughtful commentaries authored by practitioners and policy advocates as well as by law professors.

For this issue, FSR is open and interested in publishing pieces addressing an array of topics relating to the current Supreme Court's work on the criminal side of its docket.  Commentaries can focus on a single case (or even a single opinion in a single case) or they can address a series of cases or a developing jurisprudence.  Contributors are also welcome to discuss the voting patterns and rulings of a particular Justice or of the Court as a whole.  How the Court selects criminal cases for review or what topics should garner the Justices' attention in the years ahead are also fitting topics.  In short, any engaging discussion of the work of the current Court on criminal justice matters will fit the bill.

FSR pieces are shorter and more lightly footnoted than traditional law review pieces; ideally, drafts are between 2000 and 5000 words with less than 50 footnotes.  Drafts need to be received on or before August 1 to ensure a timely publication, and should be sent to co-managing editors Douglas Berman (berman.43 @ osu.edu) and Steven Chanenson (chanenson @ law.villanova.edu) for consideration.

Here are just a sampling of SCOTUS posts from this blog on the Term's big cases to inspire contributions:

June 28, 2019 in Recommended reading | Permalink | Comments (0)

"Plus a Life Sentence? Incarceration’s Effects on Expected Lifetime Wage Growth"

The title of this post is the title of this interesting new empirical paper available via SSRN and authored by two economists, Theodore S. Corwin III and Daniel K. N. Johnson. Here is its abstract:

The United States incarcerates citizens at rates higher than those of any other developed nation, with impacts on not only government budgets but economic growth rates.  Using the National Longitudinal Survey of Youth for 1997, we model the effects of incarceration on wage growth rates using inverse probability weighted regression adjusted (IPWRA) propensity score matching to recognize the selection bias among the members of the sample who serve prison terms.  Results show that incarceration reduces average lifetime income growth by one-third even for a relatively short earning period, with that depth depending on length of sentence, employment history, and education level in some surprising ways.

June 28, 2019 in Data on sentencing, Prisons and prisoners | Permalink | Comments (0)

In federal prosecution following state conviction, Charlottesville killer James Fields gets LWOP sentence

As reported in this Reuters piece, headlined "Charlottesville neo-Nazi sentenced to life, judge says 'too great a risk' to release," a very high-profile defendant who has been subject to both state and federal prosecutions for a very high-profile crime, received his federal sentence today.  Here are the details: 

A federal judge imposed a life sentence on the self-described neo-Nazi who killed Heather Heyer by crashing his car into a crowd of counterprotesters in Charlottesville, Virginia, after a white supremacist rally, saying release would be “too great a risk.”

The 22-year-old neo-Nazi, James Fields of Maumee, Ohio, was sentenced to life without the possibility of parole. He had sought a lesser sentence, apologizing after the court viewed video of him plowing his car into a crowd after the Aug. 12, 2017, “Unite the Right” rally, also injuring 19 people.

U.S. District Judge Michael Urbanski, was unmoved by his plea, saying he had had to avert his eyes while the court viewed graphic video of the attack that showed bodies flying into the air as Fields crashed into them. “Just watching them is terrifying,” Urbanski said. “The release of the defendant into a free society is too great a risk.”...

Heyer’s parents described the grief of losing their daughter. “It was an incident I will never fully recover from,” said Heyer’s father, Mark Heyer. Her mother, Susan Bro, described herself as “deeply wounded” and recounted crying uncontrollably at times.

Ahead of Friday’s sentencing hearing, prosecutors noted that Fields had long espoused violent beliefs. Less than a month before the attack he posted an image on Instagram showing a car plowing through a crowd of people captioned: “you have the right to protest but I’m late for work.”

Even after the attack, Fields remained unrepentant, prosecutors said, noting that in a Dec. 7, 2017, phone call from jail with his mother, he blasted Bro for her activism after the attack. “She is a communist. An anti-white liberal,” Fields said, according to court papers filed by prosecutors. He rejected his mother’s plea to consider that the woman had “lost her daughter,” replying, “She’s the enemy.”

Fields pleaded guilty to the federal hate crime charges in March under a deal with prosecutors, who agreed not to seek the death penalty.

He was photographed hours before the attack carrying a shield with the emblem of a far-right hate group. He has identified himself as a neo-Nazi.

Fields’ attorneys suggested he felt intimidated and acted to protect himself. They asked for mercy, citing his relative youth and history of mental health diagnoses.

Intriguingly, this report completely leaves out the fact that James has also been subject to prosecution in Virginia state court, which resulted in a jury conviction and a recommendation of a 419-year plus life sentence.  The details of these proceedings are covered in some prior posts linked below.

Prior related posts:

June 28, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Just how huge is the mess and challenge for lower federal courts after SCOTUS decisions in Davis, Haymond and Rehaif?

I feel like, in order to really understand their import, I will need weeks, maybe months, to reread and reflect on the three decisions that were big wins for federal criminal defendants handed down by SCOTUS in the last week.  But, of course, lower courts do not have an academic's luxury of time to make sense of US v. Davis, No. 18-431 (S. Ct. June 24, 2019) (available here; discussed here), US v. Haymond, No. 17-1672 (S. Ct. June 26, 2019) (available here; discussed here) and Rehaif v. US, No. 17-9560 (S. Ct. June 21, 2019) (available here; discussed here). 

I suspect some lower courts are already starting to get motions from federal prisoners or defendants in pending cases that are based on these rulings.  And the Supreme Court's final order list this morning has a bunch of remands based on these rulings that highlight the coming work for federal Circuit Courts as well.  (For those interested in an accounting, I counted sixth Davis GVRs, one Haymond GVR, and four Rehaif GVRs.)

I will not try in this post to sort out the likely litigation echoes of these cases, but I will try to crowd source opinions as to which of these cases will prove most impactful and consequential.  Of course, impactful and consequential can be defined lots of different ways — e.g., it might be gauged based on the number of disruptions of prior convictions and sentences, emergence of a new jurisprudence, possible legislative responses, total volume of cites and litigation, etc.  Without getting too bogged down in trying to define these terms, I just want to put the question out there for collective engagement among the always informed and thoughtful readers of this blog:

Among the trio of Davis, Haymond and Rehaif, which of these recent rulings by SCOTUS for a federal criminal defendant do you think will prove to be the most impactful and consequential?

June 28, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

SCOTUS, in final order of OT 2018, adds two more federal criminal cases to docket for next Term

The Supreme Court released its final order list for the Term today, and it unsurprisingly starts with a bunch of remands based on its recent big criminal rulings.  I will do a distinct post on those remands, and here will instead focus on a few of the 11+ cases in which SCOTUS granted certiorari review for hearing the cases in the fall.  Most of these cases (some of which are consolidated) deal with civil issues, but I see two that are federal criminal matters: Kelly, Bridget v. United States, No. 18-1059, and Shular, Eddie v. United States, No. 18-6662.

SCOTUSblog has this page covering Kelly, which emerges from the high-profile "Bridgegate" scandal in New Jersey and present this issue:  "Whether a public official 'defraud[s]' the government of its property by advancing a “public policy reason” for an official decision that is not her subjective “real reason” for making the decision."

And the Shular case is yet another case raising an important technical issue in the application of the Armed Career Criminal Act, with the cert petition presenting this question: "Whether the determination of a 'serious drug offense' under the Armed Career Criminal Act requires the same categorical approach used in the determination of a 'violent felony' under the Act?"

Last but not last, the SCOTUS order list ends with a cert denial in a South Carolina case, McGee v. McFadden, No. 18-7277, which prompted an eight-page dissent from Justice Sotomayor starting this way:

Pro se petitioner Shannon McGee has a strong argument that his trial and resulting life sentence were fundamentally unfair because the State withheld material exculpatory evidence.  See Brady v. Maryland, 373 U. S. 83, 87 (1963).  The state courts offered flawed rationales for rejecting that claim. Nevertheless, the District Court denied McGee federal habeas relief, and both the District Court and the U.S. Court of Appeals for the Fourth Circuit summarily declined to grant McGee a “certificate of appealability” (COA), 28 U.S.C. §2253(c), concluding that his claim was not even debatable.  Without a COA, McGee cannot obtain appellate review on the merits of his claim.  See ibid.  Because the COA procedure should facilitate, not frustrate, fulsome review of potentially meritorious claims like McGee’s, I would grant the petition for writ of certiorari and reverse the denial of a COA.

June 28, 2019 in Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

June 27, 2019

"Somewhere Between Death Row and Death Watch: How Courts Have Precluded Capital Defendants From Raising Execution-Related Claims"

The title of this post is the title of this new paper authored by Melanie Kalmanson now available via SSRN. Here is its abstract:

Most discussion on capital punishment focus on the merits of the death penalty generally.  While those arguments are surely important, for as long as capital punishment remains in the United States, safeguarding defendants’ rights throughout the capital sentencing process — including through execution — is crucial.  As part of that effort, this Article identifies a portion of the often-overlooked capital appellate process that effectively divests defendants of significant claims.

This issue is illustrated by the U.S. Supreme Court’s recent decisions in Bucklew v. Precythe and Dunn v. Price, which provided insight in a lot of contexts.  Contributing to the conversation on the Court’s recent decisions, this Article explains how Bucklew and Dunn provided insight into not-so-obvious aspects of capital punishment with which defendants often struggle.  Specifically, Bucklew and Dunn illustrate the procedural predicament defendants face in raising execution- and warrant-related claims.  On one hand, courts determine that execution-related claims are not ripe, or premature, when raised before a defendant is under an active death warrant.  On the other, as in Bucklew and Dunn, when the defendant is under an active death warrant, courts determine the claims are brought too late, suspecting a game of delay.  Thus, as this Article explains, the proper time for defendants to raise execution-related claims is caught somewhere between death row and death watch, and courts have essentially precluded defendants from properly raising and being heard on these issues.

Addressing this concern, this Article canvasses potential solutions.  Ultimately, this Article concludes that the best solution is for states to enact and courts to enforce uniform warrant procedures, an example of which is outlined here. 

June 27, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

US Sentencing Commission releases "Overview of Federal Criminal Cases, Fiscal Year 2018"

Though the US Sentencing Commission cannot currently make any guideline amendments due to the lack of a quorum due to a lack of Commissioners, the Commission is still able to churn out federal sentencing data and produce helpful reports about that data.  One such helpful report released this week, and available here, is titled simply "Overview of Federal Criminal Cases, Fiscal Year 2018," and the USSC describes and summarizes the report on this webpage in this way: 

Summary

The United States Sentencing Commission received information on 69,524 federal criminal cases in which the offender was sentenced in fiscal year 2018.  Among these cases, 69,425 involved an individual offender and 99 involved a corporation or other “organizational” offender.  The Commission also received information on 3,241 cases in which the court resentenced the offender or otherwise modified the sentence that had been previously imposed.  This publication provides an overview of those cases.

Highlights

A review of cases reported to the Commission in fiscal year 2018 reveal the following:

  • The federal caseload increased 3.8% from the previous fiscal year, halting a six-year decline in the number of federal offenders sentenced annually.
  • Cases involving drugs, immigration, firearms, and fraud, theft, or embezzlement accounted for 82.8% of all cases reported to the Commission.
  • Immigration cases were the most common federal crimes in fiscal year 2018 (34.4%).  This number is a 16.5% increase from fiscal year 2017.
  • Drug trafficking offenses fell by 14.1% over the past five years, with 4.5% fewer cases reported than in fiscal year 2017.
  • Methamphetamine offenses were the most common drug cases.  The 7,554 methamphetamine cases represented 39.8% of all drug crimes.

June 27, 2019 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines | Permalink | Comments (0)

Ruling 5-4, SCOTUS upholds constitutionality of blood test of unconscious driver

The Supreme Court handed down its last notable criminal justice ruling of the Term with a decision in favor of police powers in Mitchell v. Wisconsin, No. 18-6210 (S. Ct. June 27, 2019) (available here).  Here is the (no longer all that) surprising cast of voting characters:

ALITO, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C.J., and BREYER and KAVANAUGH, JJ., joined. THOMAS, J., filed an opinion concurring in the judgment. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG and KAGAN, JJ., joined. GORSUCH, J., filed a dissenting opinion.

Here is how Justice Alito's pularity opinion gets started:

In this case, we return to a topic that we have addressed twice in recent years: the circumstances under which a police officer may administer a warrantless blood alcohol concentration (BAC) test to a motorist who appears to have been driving under the influence of alcohol. We have previously addressed what officers may do in two broad categories of cases.  First, an officer may conduct a BAC test if the facts of a particular case bring it within the exigent-circumstances exception to the Fourth Amendment’s general requirement of a warrant.  Second, if an officer has probable cause to arrest a motorist for drunk driving, the officer may conduct a breath test (but not a blood test) under the rule allowing warrantless searches of a person incident to arrest.

Today, we consider what police officers may do in a narrow but important category of cases: those in which the driver is unconscious and therefore cannot be given a breath test.  In such cases, we hold, the exigent circumstances rule almost always permits a blood test without a warrant.  When a breath test is impossible, enforcement of the drunk-driving laws depends upon the administration of a blood test.  And when a police officer encounters an unconscious driver, it is very likely that the driver would be taken to an emergency room and that his blood would be drawn for diagnostic purposes even if the police were not seeking BAC information.  In addition, police officers most frequently come upon unconscious drivers when they report to the scene of an accident, and under those circumstances, the officers’ many responsibilities — such as attending to other injured drivers or passengers and preventing further accidents — may be incompatible with the procedures that would be required to obtain a warrant. Thus, when a driver is unconscious, the general rule is that a warrant is not needed.

Here is how Justice Thomas's fifth vote concurring opinion gets started:

Today, the plurality adopts a difficult-to-administer rule: Exigent circumstances are generally present when police encounter a person suspected of drunk driving — except when they aren’t.  Compare ante, at 13, with ante, at 16. The plurality’s presumption will rarely be rebutted, but it will nevertheless burden both officers and courts who must attempt to apply it.  “The better (and far simpler) way to resolve” this case is to apply “the per se rule” I proposed in Missouri v. McNeely, 569 U.S. 141 (2013) (dissenting opinion).  Birchfield v. North Dakota, 579 U. S. ___, ___ (2016) (THOMAS, J., concurring in judgment in part and dissenting in part) (slip op., at 3). Under that rule, the natural metabolization of alcohol in the blood stream “‘creates an exigency once police have probable cause to believe the driver is drunk,’” regardless of whether the driver is conscious.  Id., at ___ (slip op., at 4).  Because I am of the view that the Wisconsin Supreme Court should apply that rule on remand, I concur only in the judgment.

Here is how Justice Sotomayor's dissenting opinion gets started:

The plurality’s decision rests on the false premise that today’s holding is necessary to spare law enforcement from a choice between attending to emergency situations and securing evidence used to enforce state drunk-driving laws. Not so. To be sure, drunk driving poses significant dangers that Wisconsin and other States must be able to curb. But the question here is narrow: What must police do before ordering a blood draw of a person suspected of drunk driving who has become unconscious? Under the Fourth Amendment, the answer is clear: If there is time, get a warrant.

And Justice Gorsuch's dissent is just this one paragraph:

We took this case to decide whether Wisconsin drivers impliedly consent to blood alcohol tests thanks to a state statute. That law says that anyone driving in Wisconsin agrees — by the very act of driving—to testing under certain circumstances.  But the Court today declines to answer the question presented. Instead, it upholds Wisconsin’s law on an entirely different ground — citing the exigent circumstances doctrine. While I do not doubt that the Court may affirm for any reason supported by the record, the application of the exigent circumstances doctrine in this area poses complex and difficult questions that neither the parties nor the courts below discussed.  Rather than proceeding solely by self-direction, I would have dismissed this case as improvidently granted and waited for a case presenting the exigent circumstances question.

June 27, 2019 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Taking more stock of the many shades of Justice Neil Gorsuch in criminal cases

I-dont-always-vote-in-favor-of-criminal-defendants-but-when-i-do-justice-alito-starts-drinking-dos-eIn this post on Monday, fresh on the heels of noticing Justice Neil Gorsuch's notable votes for the claims of federal criminal defendants in US v. Gundy and Rehaif v. US and Davis v. US, I reviewed Justice Gorsuch's interesting and varied votes and role in big contested criminal cases from the SCOTUS docket this Term.  Of course, Wednesday brought another data point via the Court's ruling in US v. Haymond, a case in which Justice Gorsuch provided a key swing vote in a 5-4 ruling for another federal criminal defendant and wrote a potent plurality opinion extolling the importance of the Sixth Amendment jury trial right (basics here).

But lest one let four notable late-in-the-Term votes unduly shape one's view of Justice Gorsuch's approach in criminal cases, Leah Litman has this new Slate commentary designed to make sure nobody comes to think Justice Gorsuch is always channeling the late Justice William Brennan.  The piece is bluntly headlined "Neil Gorsuch Is No Friend to Criminal Defendants," and everyone interested in this topic should read the whole thing.  Here are excerpts:

Writers like to depict him as a friend to criminal defendants; the tone of several pieces even makes it sounds like he is among the most-criminal-defendant-friendly justices on the modern court.  And some commentators who cannot resist the blazing hot countertakes have even suggested that Gorsuch is better for criminal defendants than a Justice Merrick Garland would have been.

Where to start?  Even just a few cases from the Supreme Court’s current term make it clear that Gorsuch is no friend to criminal defendants.  The fact that he rules against the government in some number of criminal cases, and occasionally departs from his more law-and-order conservative colleagues in doing so, does not change that fact.  At most, Gorsuch is as good for criminal defendants as the least-criminal-defendant-friendly Democratic appointee.  That hardly makes him a hero.  On some cases, Gorsuch has played the villain....

It is true that Gorsuch sometimes departs from his conservative colleagues and rules for criminal defendants.  It is also true that his seemingly libertarian instincts lead him to be more friendly to criminal defendants than Justice Brett Kavanaugh....  But all of these examples hardly establish that Gorsuch is a friend to criminal defendants. The fact that his aggressive approach to constitutional law, which largely frees him from the constraints of stare decisis, occasionally leads him to reshape the law in ways that favor criminal defendants should not obscure the many times that he has reached out to reshape the law in ways that would meaningfully harm them.

Notably, Ramesh Ponnuru already has this partial response to this piece at the National Review under the headline "A Gorsuch Made Mostly of Straw." Here is how it closes:

The attention to Gorsuch’s pro-criminal defendant rulings really could create a misleading impression about his jurisprudence generally and it is worth providing a more complete sense of it.  But I am left thinking that Gorsuch’s defenders have mostly not argued for him as a friend of criminal defendants — nor should they have, since a Supreme Court justice shouldn’t approach the kind of cases that come before him with a bias for or against criminal defendants.

My quick take it that Justice Gorsuch is particularly drawn to arguments from defendants (especially federal defendants) that concern the structural elements of the Constitution and our criminal justice system that protect individual liberty.  At the same time, he seems particularly unmoved by arguments made by state defendants (especially state capital defendants) that concern when he may consider "mere" matters of justice administration that can and should be trusted to the states. In this regard, he seems to approach the criminal docket somewhat akin to the Justice he replaced, Justice Antonin Scalia, and that is enough for me to anoint him the most interesting person on the Court in criminal cases (see silly picture above).

What strikes me as particularly interesting for the Court as a whole with respect to its criminal jurisprudence is the fact that the Chief Justice and Justice Brett Kavanaugh seem to becoming the yang to Justice Gorsuch's yin.  In capital cases, Chief Justice and Justice Kavanaugh seem often at least a bit more inclined to vote in favor of a capital defendant (Madison v. Alabama and Flowers v. Mississippi) come to mind, whereas in some of the structural cases they are disinclined to rule for a federal defendant (as in Davis v. US and US v. Haymond).  Interesting times.

Prior related post:

June 27, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

June 26, 2019

Notable new comments about crime and prosecutions from AG William Barr in speech to United States Attorneys

I noted last week that I have not recently posted too many speeches on crime and punishment from Justice Department leaders in part because there have not been too many of these speeches lately.  But today, Attorney General William Barr delivered these extended remarks as the "Opening Remarks at the U.S. Attorney's Conference" in Washington DC.  The whole speech is worth reading, and here are some excepts:

We can all be rightly proud of this Administration’s record on violent crime.  We have made impressive progress. But we must keep up a full court press.  There are still areas of the country where we have not made sufficient headway. For many communities in America, armed criminals and violent crime are still the norm.  We cannot accept this status quo.

That is why the Department remains committed to driving down violent crime, including through the vigorous prosecution of firearms offenses.  I have been glad to see that prosecutions under § 922(g) are at an all-time high.  We need to maintain our focus on getting illegal guns off the streets and out of the hands of violent criminals.  I want all of our offices to work with their state and local partners on “Triggerlock” cases that take advantage of stiff federal penalties to punish and deter violent felons. I also want to see vigorous enforcement of the background-check process, both against prohibited persons who “lie and try” and against firearm dealers who skirt the process. We need to provide real deterrence.  I look forward to working with all of you to step up our drive against gun crime.

As you all know, we also cannot reduce violent crime without confronting the role of gangs and other criminal organizations.  Working with our state and local partners, we must keep sustained pressure on these groups, which are primary drivers of violent crime. Many of these criminal organization have national or transnational profiles, and thus require a coordinated federal strategy....

While I am talking about violent crime, I want to make clear that, while our focus is often on predatory violence, I am also deeply concerned about the rise in hate crimes that we have seen over the past decade.  We must have zero tolerance for violence that is motivated by hatred for our fellow citizens — whether on the basis of their racial, religious, or sexual characteristics.  We also need to take a strong stand against those who would use violence to intimidate people from exercising their rights to free speech and to participate in the democratic process.

In addition to guns and gangs, the other significant driver of violent crime is drug crime, which represents another priority for the Department.  When I returned to the Department as Attorney General, it was disheartening to learn about the state of the drug problem across the country.  In most respects, the problem is much worse than when I left the Department in 1993.  I believe that the last Administration was not aggressive enough in fighting the drug threat; a lot of ground was lost; and a tsunami was allowed to build up that has been hitting the country.

We cannot be discouraged.  When I look at the overdose deaths, the blighted lives, and the families and communities broken by drug addiction, it reminds me why we cannot surrender.  We must work harder than ever.

I am proud that this Administration has shone a much-needed light on the opioid epidemic and that the Department has taken a number of dramatic steps to tackle this national crisis head on. And while there are encouraging signs of progress, our work is far from over.  On the streets, the rise of fentanyl and other synthetic opioids has been followed by 100-times stronger car-fentanyl and by mixtures of fentanyl with cocaine and other drugs.  We must also continue our efforts to prevent and punish diversion of licit drugs, another area where the Department has done great work.  And, as you know, while opioids are the most acute problem in many areas of the country, in other areas Mexican methamphetamine is surging.  We must keep fighting and keep innovating to match the ever-evolving threat....

As I alluded to earlier, there are also a number of other focused initiatives that I hope to see continue and strengthen during my tenure.  For me, the elder-fraud initiative provides a great example for how the Department can use its resources with a high return.  Not only is the elderly population among our most vulnerable citizens, but we are learning more and more about the role of foreign and transnational criminal organizations in perpetrating these schemes.  Another area I want see us redouble our efforts is in prosecuting human trafficking violations, especially those involving children....

That should give you a sense of my views on the priorities of the Department. But my charge today is not for you go out into the field and to maximize prosecutions in each of these categories. You will always need to strike a balance.  And as you do, here are a few things to keep in mind:

First, in a Department like ours, the notion of priorities should not be confused.  We have an obligation to enforce federal law, and that means covering all of the bases as best we can. If we say that the Department will prioritize violent crime prosecutions, we know that this cannot mean we ignore civil-rights violations or environmental crimes.  We must try our best to enforce federal law across the board with the limited resources we have.

A necessary corollary is that federal prosecutors must exercise sound discretion to strike a balance.  This balance requires that each of you adapt the Department’s general priorities to the specific circumstances of your districts. Thus, while opioids represent the greatest drug threat in many districts, others face greater problems with methamphetamines or cocaine.  And while transnational criminal organizations may be the primary driver of violent crime in one city, another may struggle with more localized, home-grown groups.  Our Department priorities are never intended to take your eyes off the leading problems in your district, including the great work of your civil divisions, which protect government resources by defending the United States and rooting out fraud against the government. Each of you is responsible for determining where we can have the biggest impact in advancing the safety and well-being of your communities....

Fairness must inform all that we do. After all, the whole concept of our American constitution was to establish a Government that could serve the common good while checking government power to protect individual liberty. And that is the Constitution we are sworn to support and defend.  As you carry out your mission, I rely on you to lead wisely, hold those who injure the public accountable, and zealously represent the United States in court, while at the same time maintaining unshakable confidence in the rule of law and justice for all. That is your charge, and I know that you embrace it willingly, and well.

June 26, 2019 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (0)

"The Future of Presidential Clemency Decisionmaking"

The title of this post is the title of this notable and timely new article authored by Paul Larkin and now available via SSRN.  Here is its abstract:

The Framers gave the president the clemency power when the federal government and the nation were in their infancy.  The president has far more demands on his time today than George Washington did in 1789.  The time necessary to make clemency decisions, even if done properly (and it has not always been done that way) alone could keep a large number of aides busy full time, let alone exhaust a chief executive troubled by the prospect that too many innocent people are rotting in prison or that too many people have been sentenced to the slow death of unnecessarily long terms of imprisonment.  Accordingly, the question is whether the president should leave clemency judgments to others, particularly ones who are professionals at sentencing.

Some scholars have suggested reinstituting some form of parole.  Yet, I think that we not will see a rebirth of parole any time soon.  The criticisms that persuaded Congress to abandon parole in the Sentencing Reform Act of 1984 have not disappeared or lost their force.  Proof can be seen in the fact that, during the debate over the First Step Act of 2018, neither the House of Representatives nor the Senate seriously considered reinstituting parole to address the overcrowding that federal prisons have witnessed over the last decade-plus.  Other scholars urge Congress to adopt a “second-look” resentencing system.  That also is unlikely.  The suggestion that Congress reinstitute some type of second-look mechanism would be scorned as the attempted resurrection of parole under an alias.  Indeed, the First Step Act approached this issue by using well-settled good-time and earned-time credit systems to decide whether and when to release prisoners, not a second-look mechanism.

A third option, however, can be found in a provision of the First Step Act modifying the gatekeeper role played by the Federal Bureau of Prisons (BOP) since the Sentencing Reform Act of 1984 went into effect.  An argument can be made that district courts now can resentence prisoners because prisoners can now go to court to argue that “extraordinary and compelling reasons” justify their early release without needing the BOP to ask a court for that relief.  That type of change to the law, however, is far from the type of interstitial fleshing out that Congress traditionally delegates to others.  Nonetheless, it remains to be seen how the Supreme Court will resolve that issue.

June 26, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

The Sentencing Project reports one of every 15 women in prison (nearly 7,000) serving life or virtual life sentence

Via email I received this morning this fact sheet from The Sentencing Project titled "Women and Girls Serving Life Sentences" (which lead me to see that, a few weeks ago, it also release this related fact sheet titled "Incarcerated Women and Girls"). Here is the start of this latest publication:

Nationwide one of every 15 women in prison — nearly 7,000 women — is serving a life or virtual life sentence.  One-third of them have no chance for parole, so their prospects for release are highly improbable.  The number of women serving life sentences has grown dramatically despite declining rates of violent crime among women.

As is the case with imprisonment generally, men comprise the overwhelming proportion of people in prison for life; 97% of lifers are men.  At the same time, the number of women serving life sentences is rising more quickly than it is for men.  The Sentencing Project collected life-imprisonment figures by gender in 2008 and 2016. W e find that during this nine-year period the number of women serving life sentences increased by 20%, compared to a 15% increase for men.

The rise in life imprisonment among women has also been far more rapid than the overall prison population increase among women for violent offenses.  Between 2008 and 2016 there was a 2% increase in the number of imprisoned women for a violent crime, but a 20% increase in the number of women serving a life sentence.  When analysis is limited to life-without-parole sentences, we see that the number of women serving these sentences increased by 41% compared to 29% for men.

June 26, 2019 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

SCOTUS, via splintered 5-4 ruling, decides that supervised release revocation procedures used in Haymond are unconstitutional

Via a divided opinion thanks to the separate vote of Justice Breyer, the Supreme Court this morning ruled in favor of a federal criminal defendant's claim that the procedures used to revoke his federal supervised release term and send him back to prison was unconstitutional in US v. Haymond, No. 17-1672 (S. Ct. June 26, 2019) (available here).  Here is the vote/opinion break down in the case:

GORSUCH, J., announced the judgment of the Court and delivered an opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. BREYER, J., filed an opinion concurring in the judgment. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., and THOMAS and KAVANAUGH, JJ., joined.

Here is how Justice Gorsuch's lead plurality opinion starts:

Only a jury, acting on proof beyond a reasonable doubt, may take a person’s liberty.  That promise stands as one of the Constitution’s most vital protections against arbitrary government.  Yet in this case a congressional statute compelled a federal judge to send a man to prison for a minimum of five years without empaneling a jury of his peers or requiring the government to prove his guilt beyond a reasonable doubt.  As applied here, we do not hesitate to hold that the statute violates the Fifth and Sixth Amendments.

Because Justice Breyer's fifth vote is essential to the result here, his short concurring opinion demands quoting at length. So:

I agree with much of the dissent, in particular that the role of the judge in a supervised-release proceeding is consistent with traditional parole. See post, at 9–10 (opinion of ALITO, J.).  As 18 U.S.C. §3583 makes clear, Congress did not intend the system of supervised release to differ from parole in this respect. And in light of the potentially destabilizing consequences, I would not transplant the Apprendi line of cases to the supervised-release context.  See post, at 4–5....

Nevertheless, I agree with the plurality that this specific provision of the supervised-release statute, §3583(k), is unconstitutional.  Revocation of supervised release is typically understood as “part of the penalty for the initial offense.”  Johnson v. United States, 529 U. S. 694, 700 (2000).  The consequences that flow from violation of the conditions of supervised release are first and foremost considered sanctions for the defendant’s “breach of trust” — his “failure to follow the court-imposed conditions” that followed his initial conviction — not “for the particular conduct triggering the revocation as if that conduct were being sentenced as new federal criminal conduct.”  United States Sentencing Commission, Guidelines Manual ch. 7, pt. A, intro. 3(b) (Nov. 2018); see post, at 12–13.  Consistent with that view, the consequences for violation of conditions of supervised release under §3583(e), which governs most revocations, are limited by the severity of the original crime of conviction, not the conduct that results in revocation.  See §3583(e)(3) (specifying that a defendant may as a consequence of revocation serve no “more than 5 years in prison if the offense that resulted in the term of supervised release is a class A felony, [no] more than 3 years in prison if . . . a class B felony,” and so on).

Section 3583(k) is difficult to reconcile with this understanding of supervised release.  In particular, three aspects of this provision, considered in combination, lead me to think it is less like ordinary revocation and more like punishment for a new offense, to which the jury right would typically attach.  First, §3583(k) applies only when a defendant commits a discrete set of federal criminal offenses specified in the statute.  Second, §3583(k) takes away the judge’s discretion to decide whether violation of a condition of supervised release should result in imprisonment and for how long.  Third, §3583(k) limits the judge’s discretion in a particular manner: by imposing a mandatory minimum term of imprisonment of “not less than 5 years” upon a judge’s finding that a defendant has “commit[ted] any” listed “criminal offense.”

Taken together, these features of §3583(k) more closely resemble the punishment of new criminal offenses, but without granting a defendant the rights, including the jury right, that attend a new criminal prosecution.  And in an ordinary criminal prosecution, a jury must find facts that trigger a mandatory minimum prison term. Alleyne, 570 U. S., at 103.

Accordingly, I would hold that §3583(k) is unconstitutional and remand for the Court of Appeals to address the question of remedy.  Because this is the course adopted by the plurality, I concur in the judgment.

And here is how Justice Alito's dissent starts:

I do not think that there is a constitutional basis for today’s holding, which is set out in JUSTICE BREYER’s opinion, but it is narrow and has saved our jurisprudence from the consequences of the plurality opinion, which is not based on the original meaning of the Sixth Amendment, is irreconcilable with precedent, and sports rhetoric with potentially revolutionary implications.  The plurality opinion appears to have been carefully crafted for the purpose of laying the groundwork for later decisions of much broader scope.

WOW! I am surprised and disappointed that the Chief Justice and Justices Thomas and Kavanaugh all sign off on Justice Alito's dissent. I thought for sure one or more of them would be inclined to vote with the defendant in this case on at least a narrow ground.  But it seems Justice Gorsuch was so eager to swing for the Fifth and Sixth Amendment fences, he could not get any of these other Justices to stay on his team in this notable case.  I will need a few hours, probably a few days, to figure out just what this means now and for the future of Fifth and Sixth Amendment sentencing jurisprudence.  For now, I will just say WOW again.

UPDATE: I see this new post at Crime & Consequences on this ruling with this adroit title "An Odd 'Supervised Release' Law Bites the Apprendi Dust."

June 26, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

June 25, 2019

District Court finds statutory sentence reform among "extraordinary and compelling reasons" for reducing LWOP sentence under 18 U.S.C. § 3582(c)(1)(A)

As regular readers know, ever since the passage of the FIRST STEP Act, I have been talking up 18 U.S.C. § 3582(c)(1)(A) as a critical and valuable new mechanism to reduce problematic prison sentences in any and every case in which the defendant presents "extraordinary and compelling reasons" for the reductions.  Though to date it seems this imprisonment-reduction authority granted by 3582(c)(1)(A) has been used almost only for so-called compassionate release situations in which a prisoner was extremely ill or had an extreme family situation, I posted here yesterday a recent example of a judge finding other reasons sufficient to reduce a sentence and making clear that the new FIRST STEP Act allows a judge broad authority to "determine whether any extraordinary and compelling reasons" justified a reduction in a prison term.  United States v. Cantu, No. 1:05-CR-458-1, 2019 WL 2498923 (S.D. Tex. June 17, 2019).

Interestingly, around the time I was blogging about the Cantu ruling, another US District Court judge was issuing another important § 3582(c)(1)(A) ruling in United States v. Cantu-Rivera, Cr. No. H-89-204 (SD Tex. June 24, 2019) (available for download below).  This one, penned by Judge Sim Lake, is the first cases I have seen in which a defendant serving an LWOP sentence has had his sentence reduced to time served (30 years!) via a motion under § 3582(c)(1)(A).  This new Cantu-Rivera ruling, which runs only six pages and merits a full read, includes these notable passages:

Mr. Cantu-Rivera meets the age-related definition of extraordinary and compelling circumstances in U.S.S.G.§ lBl.13, comment. (n.l(B)).  He is 69 years old, he is experiencing serious deterioration in physical health because of the aging process (arthritic conditions in multiple joints, cataracts, diabetes, prostrate conditions), and he has served 30 years in prison....

The Court also recognizes the extraordinary degree of rehabilitation Mr. Cantu-Rivera has accomplished during the 30 years he has been incarcerated.  That rehabilitation includes extensive educational achievements, including Mr. Cantu-Rivera's completion of over 4,000 hours of teaching while in federal prison to complete a Teaching Aide apprenticeship with the Department of Labor.  The extraordinary degree of rehabilitation is also evident in Mr. Cantu-Rivera's service as a teaching assistant in several prison facilities for high-school equivalency and English-as-a­ Second-Language programs and his service in the BOP's suicide watch program, helping to care for inmates placed in solitary confinement due to suicide attempts.  Finally, the Court recognizes as a factor in this combination the fundamental change to sentencing policy carried out in the First Step Act's elimination of life imprisonment as a mandatory sentence solely by reason of a defendant's prior convictions.  § 401(a)(2)(A)(ii), 132 Stat. at 5220 (codified at 21 U.S.C. § 841(b)(1)(A)).  The combination of all of these factors establishes the extraordinary and compelling reasons justifying the reduction in sentence in this case.

Download Cantu-Rivera Opinion

A few prior related posts on § 3582(c)(1)(A) after FIRST STEP Act:

June 25, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

"The Opposite of Punishment: Imagining a Path to Public Redemption"

The title of this post is the title of this new short paper authored by Paul Robinson and Muhammad Sarahne. Here is its abstract:

The criminal justice system traditionally performs its public functions — condemning prohibited conduct, shaming and stigmatizing violators, promoting societal norms — through the use of negative examples: convicting and punishing violators.  One could imagine, however, that the same public functions could also be performed through the use of positive examples: publicly acknowledging and celebrating offenders who have chosen a path of atonement through confession, apology, making amends, acquiescing in just punishment, and promising future law abidingness.  An offender who takes this path arguably deserves official public recognition, an update of all records and databases to record the public redemption, and an exemption from all collateral consequences of conviction.

This essay explores how and why such a system of public redemption might be constructed, the benefits it might provide to offenders, victims, and society, and the political complications that creation of such a system might encounter.

June 25, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (4)

Expecting (good?) criminal justice reform questions in the coming Democratic debates

Long-time readers know I cannot resist gearing up for big Presidential debates by suggesting some criminal justice and sentencing questions I would like to hear asked and encouraging readers to do the same.  (And if you want to see how the shape and nature of the criminal justice debate evolves in four-year increments, you might enjoy looking through this blog's archive of posts connected to Campaign 2008 and sentencing issues and Campaign 2012 and sentencing issues and Campaign 2016 and sentencing issues.)

This new Time piece purports to tell you "Everything You Need to Know" with the first Democratic debate(s) slated for later this week.  The Time article mentions some of the topics sure to arise during the debates (e.g., Medicare for All, student debt, Green New Deal), but it does not flag criminal justice issues.  Still, for the first time that I can remember, I will genuinely be surprised if these debates fail to explore some hot-button criminal justice reform issues that actually do (somewhat) divide the Dem field such as prisoner voting, the death penalty, marijuana reform and even clemency powers.

Given that we are still more than six months away from even the first primary or caucus votes, I expect I will have plenty of time to suggest some good and tough questions for various debates.  For today, I will have fun suggesting a question that I know will never be asked but interests me very much:

Proposed question: "Given stated concerns about mass incarceration and criminal justice reforms, and especially given the challenges of implementing the FIRST STEP Act, do you think it is especially problematic that the US Sentencing Commission has lacked a full slate of Commissioners for all of the Trump Administration and now lacks a quorum for completing any work?  If so, can you name a few people whom you might consider appointing to the Sentencing Commission, and do you feel confident these appointees could quickly secure Senate confirmation?"

Because this is such an "inside baseball" kind of issue, this might be perceived as more of a "gotcha" question (especially given that then-candidate Barack Obama said some some foolish things about federal sentencing issues back in summer 2007 that showed an ignorance about the USSC's work).  But I would really like to see the current problems with the US Sentencing Commission highlighted in a high-profile setting, and I think a question about the USSC could quickly reveal who really understands how the federal criminal justice system operates structurally.

As always for these posts, I welcome reader feedback on my question as well as other suggested questions for the many, many coming debates.

June 25, 2019 in Campaign 2020 and sentencing issues, Who Sentences | Permalink | Comments (0)

"Which Presidential Candidate Would Give David Barren His Freedom?"

The title of this post is the title of this notable new Filter commentary authored by Rory Fleming.  I recommend the piece in full, and here are excerpts:

David Barren is a Black man from Pittsburgh who was sentenced in 2010 to life without parole in the federal criminal justice system.  That was during President Obama’s tenure — despite his heavily implying that no one should serve more than 20 years in prison for a nonviolent drug offense — and while Attorney General Eric Holder ran the Department of Justice.

Barren was accused of leading a conspiracy involving the distribution of over 150 kilograms of cocaine — though trial transcripts show that federal prosecutors, the defense attorney and the judge had huge difficulty determining how much cocaine there really was.  While the government claimed that there was $1.2 million of drug money to be seized, court documents show it was $76,000 plus Barren’s house, worth approximately $500,000.

Anrica Caldwell, Barren’s fiancée, believes that federal prosecutors on the case demanded life in retaliation for his actually taking them to trial — something of a unicorn in the federal justice system, in which 97 percent of cases end in plea deals.  At least one of his co-conspirators got only four years in prison for the conspiracy, after testifying against Barren.

Obama felt bad for him, but only to a point. He commuted Barren’s sentence to 30 years on his final day in office.  As Barren himself wrote in an email to Reason reporter CJ Ciaramella, he got a “reduction from LIFE in letters, to life in letters and numbers.”

Caldwell, an elementary school teacher in Pittsburgh, is the vice president of CAN-DO, an organization that tirelessly fights for clemency for nonviolent federal drug prisoners. “Baby, I’m gonna die in here,” Barren told her in a call from prison in January 2017.  He is currently 54, and not due to be released until 2034....

But at least one presidential candidate, Senator Cory Booker — recognizing that as things stand, nothing is going to change in time to save people like Barren — is going for broke. Indeed, Booker’s new clemency plan aims at reducing sentences for potentially tens of thousands of people serving federal time for drugs.  Unlike Obama, he said he would do it by executive order — constituting a White House clemency recommendation panel that is not hamstrung by the US Department of Justice, which currently houses the Office of the Pardon Attorney.

This would arguably represent the first time in US history that a president told federal line prosecutors to stuff their hyper-carceral, alarmist agenda.  Obama buckled significantly to their pressure by leaving many people like Barren out to dry on de facto life sentences. “People assume that Obama’s clemency initiative means 1,700 people are kicking their feet up now at home,” said Caldwell, “and that’s just not true.”

Barren’s case is pending before the Trump White House for additional clemency relief, and Caldwell hopes this could be seen as an opportunity for Trump to prove he is serious about the issue before an election year.

Two other presidential candidates could follow Booker’s ambitious clemency reasoning.  In the Queens District Attorney race, perhaps the biggest criminal justice referendum of the year, both Bernie Sanders and Elizabeth Warren have joined liberal media in endorsing Tiffany Cabán, who promises more proportional sanctions for both nonviolent and violent crime.

Sanders and Warren should talk about their plans for criminal justice reform in more detail, as it is the biggest civil rights issue of our time.  Would they give a man like David Barren a chance? Or would they, too, let his clock run out before he can see his loved ones from outside of the bars?

A few of many older and recent related posts: 

June 25, 2019 in Campaign 2020 and sentencing issues, Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

June 24, 2019

New District Court ruling confirms that "any extraordinary and compelling reasons" can now provide basis for reducing imprisonment under 18 U.S.C. § 3582(c)(1)(A)

As regular readers know, even since the passage of the FIRST STEP Act, I have been talking up 18 U.S.C. § 3582(c)(1)(A) as a critical and valuable new mechanism to reduce problematic prison sentences in any and every case in which the defendant presents "extraordinary and compelling reasons" for the reductions. To date, it seemed that the imprisonment reduction authority granted by 3582(c)(1)(A) had been used almost only for so-called compassionate release situations in which a prisoner was extremely ill or had an extreme family situation.

But now, thanks to this posting by Shon Hopwood, I see that District Court Judge Marina Garcia Marmolejo resentenced Conrado Cantu under this provision via a thorough and thoughtful order explaining why, in the wake of the FIRST STEP Act, "when a defendant brings a motion for a sentence reduction under the amended provision, the Court can determine whether any extraordinary and compelling reasons other than those delineated in U.S.S.G. § 1B1.13 cmt. n.1(A)–(C) warrant granting relief." United States v. Cantu, No. 1:05-CR-458-1, 2019 WL 2498923 (S.D. Tex. June 17, 2019) (reprinted opinion available for download below).

As Shon explains in this post, this Cantu case may be the first in which a federal judge has "held that nothing in the statutory text of § 3582(c), nor the Sentencing Guidelines, precludes a judge from making its own determination of what are 'extraordinary and compelling' circumstances warranting a reduction of sentence."  Shon and I think this is exactly the right reading of 18 U.S.C. § 3582(c)(1)(A) after the changes made by the FIRST STEP Act.  Before FIRST STEP, the Bureau of Prisons was the gatekeeper for what motions should be brought for a reduction of imprisonment based on "extraordinary and compelling reasons."  Congress was clearly discontent with how that was going (and for good reason), and so now judges are to decide without a gatekeeper when  a term of imprisonment should be reduced based on "extraordinary and compelling reasons."

In light of all the big federal criminal justice rulings on behalf of criminal defendants in the last few days (especially Rehaif and Davis), I am wondering and hoping litigants and judges might now start to see the value of using 18 U.S.C. § 3582(c)(1)(A) to operationalize some new precedents rather than rely only or even primarily on 2255 motions.  There are a number of problematic procedural issues that can arise when a prisoner tries to get a favorable SCOTUS ruling applied retroactively through a 2255 motion.  But if the prisoner can show that a new SCOTUS ruling is part of what provides "extraordinary and compelling reasons" for a prison reduction (and such a reduction is in keeping with the traditional 3553(a) factors), perhaps motions via 3582(c)(1)(A) will go down easier than 2255 motions.

Download United States v Cantu

A few prior related posts on § 3582(c)(1)(A) after FIRST STEP Act:

June 24, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Gundy, Rehaif and Davis, oh my: object lessons in results-oriented jurisprudence

Wo-maab21165With apologies to Dorothy and with uncertainty about just which Justices should be cast as the Tin Man, Scarecrow and Cowardly Lion, the title of this post is meant in part to reflect how I am feeling overwhelmed trying to process the results and votes in three big federal criminal justice cases over the last three workdays, namely Gundy v. US, 17-6086 (S. Ct. June 20, 2019) (available here; discussed here), Rehaif v. US, No. 17-9560 (S. Ct. June 21, 2019) (available here; discussed here), and US v. Davis, No. 18-431 (S. Ct. June 24, 2019) (available here; discussed here). 

Beyond being overwhelmed by 150+ pages of dense SCOTUS text, I am also struck by my sense that so many of the Justices in these cases have had their opinions shaped by the likely or feared results of a ruling one way or another.  To this end, this passage from the majority opinion penned by Justice Gorsuch today in Davis caught my eye:

In the end, the dissent is forced to argue that holding §924(c)(3)(B) unconstitutional would invite “bad” social policy consequences.  Post, at 34.  In fact, the dissent’s legal analysis only comes sandwiched between a lengthy paean to laws that impose severe punishments for gun crimes and a rogue’s gallery of offenses that may now be punished somewhat less severely.  See post, at 1–2, 30–34.  The dissent acknowledges that “the consequences cannot change our understanding of the law.”  Post, at 34.  But what’s the point of all this talk of “bad” consequences if not to suggest that judges should be tempted into reading the law to satisfy their policy goals?

I am not inclined to use this post to rail against results-oriented jurisprudence, in part because I think all jurisprudence is results-oriented in one sense or another.  But with Gundy, Rehaif and Davis all so new and raw, and with surely lots of fall-out and follow-up to flow from these decisions, I could not resist a post spotlighting a little (Emerald City) legal realism.  And with Haymond still in the works, perhaps even the Sixth Amendment Wizard will be revealed before too long.

P.S.:  If anyone is eager to cast certain Justices as the Tin Man, Scarecrow and Cowardly Lion (or the Wicked Witch or Glinda or the Wizard or Auntie Em or even Toto), feel free to have at it in the comments.

UPDATE: Here are links to the SCOTUSblog analyses of these opinions:

On Gundy by Mila Sohoni, "Court refuses to resurrect nondelegation doctrine"

On Rehaif by Evan Lee, "Felons-in-possession must know they are felons"

On Davis by Leah Litman, "Vagueness doctrine as a shield for criminal defendants"

June 24, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Accounting Justice Gorsuch's votes (and opinions) so far this SCOTUS Term in big criminal cases

I am going to need a few hours (and days and weeks) to fully process the latest huge vagueness ruling from SCOTUS today in US v. Davis (basics here).  But Justice Gorsuch's latest decision to serve as the fifth vote (and to write the opinion for the Court) in this major ruling for a federal criminal defendant has me now eager to do a (too) quick accounting of his work in this space this Term.  Though we still await two more notable criminal rulings this Term — US v. Haymond and Mitchell v. Wisconsin — I do not think it is too early to start reviewing the Term that was and Justice Gorsuch's particularly interesting role in the criminal docket.

I am going to focus here on major contested criminal justice ruling from OT 2018 (going in the order argued), and I welcome feedback on this accounting as I start taking stock:

US v. Gundy, 5-3 ruling for feds, Justice Gorsuch in dissent for federal defendant

Madison v. Alabama, 5-3 ruling for state capital defendant, Justice Gorsuch in dissent for state

Stokeling v. US, 5-4 ruling for feds, Justice Gorsuch in majority

Garza v. Idaho, 6-3 ruling for state defendant, Justice Gorsuch in dissent for state

Bucklew v. Precythe, 5-4  ruling for state in capital case, Justice Gorsuch authors majority

Gamble v. US, 7-2 ruling for feds, Justice Gorsuch in dissent for federal defendant

Mont v. US, 5-4 ruling for feds, Justice Gorsuch in dissent for federal defendant

Flowers v. Mississippi, 7-2 ruling for state capital defendant, Justice Gorsuch in dissent for state

Davis v. US, 5-4  ruling for federal defendant, Justice Gorsuch authors majority

Rehaif v. US, 7-2 ruling for federal defendant, Justice Gorsuch in majority

Assembling this abridged list of notable criminal justice rulings this Term confirms my instinct that state capital defendants ought not be looking to get a vote from Justice Gorsuch (with the Chief Justice and Justice Kavanaugh seeming the most likely to swing), while federal defendants ought to be reasonably hopeful to get his vote in contested cases.  Though I hope and expect I the fine folks at SCOTUSblog and others can and will be do a more rigorous accounting on these matters at some point, I am eager to prime on-going conversations about how the current Court continues to be so very interesting and somewhat unpredictable on so many criminal cases.

June 24, 2019 in Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

SCOTUS, ruling 5-4, finds part of 924(c) unconstitutionally vague in Davis

This morning the Supreme Court in US v. Davis, No. 18-431 (S. Ct. June 24, 2019) (available here), has issues another huge ruling finding an important federal criminal statute unconstitutionally vague. The majority opinion in Davis is authored by Justice Gorsuch and starts this way:

In our constitutional order, a vague law is no law at all.  Only the people’s elected representatives in Congress have the power to write new federal criminal laws. And when Congress exercises that power, it has to write statutes that give ordinary people fair warning about what the law demands of them.  Vague laws transgress both of those constitutional requirements.  They hand off the legislature’s responsibility for defining criminal behavior to unelected prosecutors and judges, and they leave people with no sure way to know what consequences will attach to their conduct.  When Congress passes a vague law, the role of courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again.

Today we apply these principles to 18 U. S. C. §924(c).  That statute threatens long prison sentences for anyone who uses a firearm in connection with certain other federal crimes. But which other federal crimes?  The statute’s residual clause points to those felonies “that by [their] nature, involv[e] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” § 924(c)(3)(B).  Even the government admits that this language, read in the way nearly everyone (including the government) has long understood it, provides no reliable way to determine which offenses qualify as crimes of violence and thus is unconstitutionally vague.  So today the government attempts a new and alternative reading designed to save the residual clause. But this reading, it turns out, cannot be squared with the statute’s text, context, and history.  Were we to adopt it, we would be effectively stepping outside our role as judges and writing a new law rather than applying the one Congress adopted.

Justice Kavanaugh authors a very lengthy dissent for himself and three other Justices that starts this way:

Crime and firearms form a dangerous mix. From the 1960s through the 1980s, violent gun crime was rampant in America.  The wave of violence destroyed lives and devastated communities, particularly in America’s cities.  Between 1963 and 1968, annual murders with firearms rose by a staggering 87 percent, and annual aggravated assaults with firearms increased by more than 230 percent.

Faced with an onslaught of violent gun crime and its debilitating effects, the American people demanded action. In 1968, Congress passed and President Lyndon Johnson signed the Gun Control Act.  That law made it a separate federal crime to use or carry a firearm during a federal felony. Despite that and other efforts, violent crime with firearms continued at extraordinarily dangerous levels.  In 1984 and again in 1986, in legislation signed by President Reagan, Congress reenacted that provision of the 1968 Act, with amendments.  The law now prohibits, among other things, using or carrying a firearm during and in relation to a federal “crime of violence.” 18 U. S. C. §924(c)(1)(A).  The law mandates substantial prison time for violators.

Over the last 33 years, tens of thousands of §924(c) cases have been prosecuted in the federal courts. Meanwhile, violent crime with firearms has decreased significantly.  Over the last 25 years, the annual rate of murders with firearms has dropped by about 50 percent, and the annual rate of nonfatal violent crimes (robberies, aggravated assaults, and sex crimes) with firearms has decreased by about 75 percent.  Violent crime in general (committed with or without a firearm) has also declined. During that same time period, both the annual rate of overall violent crime and the annual rate of murders have dropped by almost 50 percent.  Although the level of violent crime in America is still very high, especially in certain cities, Americans under the age of 40 probably cannot fully appreciate how much safer most American cities and towns are now than they were in the 1960s, 1970s, and 1980s.  Many factors have contributed to the decline of violent crime in America. But one cannot dismiss the effects of state and federal laws that impose steep punishments on those who commit violent crimes with firearms.

Yet today, after 33 years and tens of thousands of federal prosecutions, the Court suddenly finds a key provision of §924(c) to be unconstitutional because it is supposedly too vague. That is a surprising conclusion for the Court to reach about a federal law that has been applied so often for so long with so little problem.  The Court’s decision today will make it harder to prosecute violent gun crimes in the future.  The Court’s decision also will likely mean that thousands of inmates who committed violent gun crimes will be released far earlier than Congress specified when enacting §924(c). The inmates who will be released early are not nonviolent offenders.  They are not drug offenders.  They are offenders who committed violent crimes with firearms, often brutally violent crimes.

June 24, 2019 in Gun policy and sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Supreme Court grants cert on AEPDA rules limiting habeas petitions

The Supreme Court this morning via this order list granted cert on a number of cases, one of which, Banister v. Davis, 18-6943, concerns federal habeas procedures.  Here is how the grant appears on the order list:

The motion of petitioner for leave to proceed in forma pauperis is granted, and the petition for a writ of certiorari is granted limited to the following question: Whether and under what circumstances a timely Rule 59(e) motion should be recharacterized as a second or successive habeas petition under Gonzalez v. Crosby, 545 U.S. 524 (2005).

June 24, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

June 23, 2019

Were lawyers busy all weekend drafting "Rehaif motions" seeking relief for "tens of thousands of prisoners" potentially impacted by the SCOTUS decision?

The question in the title of this post is prompted by the dire claims appearing in Justice Alito's dissent in Friday's Supreme Court ruling in Rehaif v. US, No. 17-9560 (S. Ct. June 21, 2019) (available here).  At the start of his dissent, Justice Alito frets that the Court's ruling in Rehaif "will create a mountain of problems with respect to the thousands of prisoners currently serving terms for §922(g) convictions" and that "[a]pplications for relief by federal prisoners sentenced under §922(g) will swamp the lower courts."  At the end of his dissent, he returns to this lament (with cites removed):

Although the majority presents its decision as modest, its practical effects will be far reaching and cannot be ignored. Tens of thousands of prisoners are currently serving sentences for violating 18 U.S.C. § 922(g).  It is true that many pleaded guilty, and for most direct review is over.  Nevertheless, every one of those prisoners will be able to seek relief by one route or another.  Those for whom direct review has not ended will likely be entitled to a new trial.  Others may move to have their convictions vacated under 28 U.S.C. § 2255, and those within the statute of limitations will be entitled to relief if they can show that they are actually innocent of violating §922(g), which will be the case if they did not know that they fell into one of the categories of persons to whom the offense applies.  If a prisoner asserts that he lacked that knowledge and therefore was actually innocent, the district courts, in a great many cases, may be required to hold a hearing, order that the prisoner be brought to court from a distant place of confinement, and make a credibility determination as to the prisoner’s subjective mental state at the time of the crime, which may have occurred years in the past.  This will create a substantial burden on lower courts, who are once again left to clean up the mess the Court leaves in its wake as it moves on to the next statute in need of “fixing.”...

The majority today opens the gates to a flood of litigation that is sure to burden the lower courts with claims for relief in a host of cases where there is no basis for doubting the defendant’s knowledge.

Though I am not sure that the litigation following the Court's decision in Rehaif will amount to a flood, I am sure that it will be interesting to see just how this ruling echoes through the lower courts in the weeks and months ahead.

June 23, 2019 in Gun policy and sentencing, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (2)

"Madison and the Mentally Ill: The Death Penalty for the Weak, Not the Worst"

The title of this post is the title of this new paper authored by Corinna Lain and available via SSRN. Here is its abstract:

Time and again, we are told that the death penalty is for the worst of the worst offenders, so how is it that the severely mentally ill end up in the snare of the capital justice system in the first place?  This essay — a transcribed (and slightly edited) version of a keynote speech given at Regent University’s 2018 law review symposium on mental health and the law — endeavors to answer that question.

The journey starts with deinstitutionalization of the severely mentally ill in the 1970s, and reinstitutionalization through the criminal justice system thereafter.  It then turns to the capital justice process, which not only fails to screen out those with severe mental illness, but is filled with hazards that make this cohort of offenders even more likely to be convicted and sentenced to death.  Next it turns to death row, and the conditions of solitary confinement in which the sick get sicker, and languish that way until it is time to die. Finally, the discussion turns to the doctrinal failsafe of competency to be executed, and explains why so many with severe mental illness fall through the cracks. 

The reality of the death penalty is that it is not for the worst of the worst.  It is for the weak among the worst — the most vulnerable offenders in a variety of ways, and executing those with severe mental illness is just a testament to the truth of that claim.

June 23, 2019 in Death Penalty Reforms, Offender Characteristics, Who Sentences | Permalink | Comments (1)