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July 6, 2019

Deputy AG Rosen provides notable update on FIRST STEP Act implementation

USA Today has this new article focused on the work of new Deputy Attorney General Jeffrey Rosen, and deep into the lengthy article is an encouraging update on developments with the FIRST STEP Act. Here are the details:

In his first month, Rosen has sought a fuller understanding of the opioid crisis in America and has taken a lead role in Justice's implementation of bipartisan criminal justice legislation aimed at easing sentences for non-violent drug offenders, reducing the federal prison population and assisting offenders' transition back into their communities.

Rosen said Justice is on schedule to deliver a critical tool to assess the needs and risks of future recidivism for federal prisoners. The program, required under the First Step Act, a sweeping measure intended to reduce the nation's prison population, is due by July 19.

On the same date, the federal Bureau of Prisons is set to recalculate the amount of so-called "good time" earned by federal offenders, an action that is expected to result in the release of 2,200 offenders to their home communities.

Rosen, who was touring the federal prison in Englewood, Colo., earlier this week in advance of the actions slated for later this month, said Justice was "pushing hard" to abide by the requirements of the new legislation.

Since the First Step Act was signed into law in December, Rosen said 1,093 drug offenders have been released from federal prisons as part of a provision that reconciled overly harsh sentences issued to crack cocaine offenders.  Another 171 low-risk elderly inmates and 46 chronically-ill offenders also have been released under terms of the legislation.

"I’m putting my personal attention on that," Rosen said of the legislation. "The attorney general is, too."

I had heard from various sources that the Justice Department was on track to release the important risk and needs assessment tool on July 19, which in turn enabled the "good time fix" of the FIRST STEP Act to finally get implemented. I am pleased to hear somewhat officially that this will all be happening later this month, and that both AG Barr and DAG Rosen are invested in properly administering these parts of the FIRST STEP Act. The good time fix will immediately impact thousands of persons in federal prisons and impact hundreds of thousands more in the years to come. And the risk/needs tool should impact tens of thousands of federal prisoners as well.

A few of many prior related posts:

July 6, 2019 in Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (1)

July 5, 2019

"The rapid expansion of the US prison population since the 1970s might have contributed substantially to the ongoing increase in overdose deaths"

The quote in the title of this post is a line from this notable new Lancet Public Health study titled "Economic decline, incarceration, and mortality from drug use disorders in the USA between 1983 and 2014: an observational analysis."  This new study, authored by Elias Nosrati, Jacob Kang-Brown, Michael Ash, Martin McKee, Michael Marmot and Lawrence King, starts with this summary:

Background Drug use disorders are an increasing cause of disability and early death in the USA, with substantial geographical variation.  We aimed to investigate the associations between economic decline, incarceration rates, and age-standardised mortality from drug use disorders at the county level in the USA.

Methods In this observational analysis, we examined age-standardised mortality data from the US National Vital Statistics System and the Institute for Health Metrics and Evaluation, household income data from the US Census Bureau, and county-level jail and prison incarceration data from the Vera Institute of Justice for 2640 US counties between 1983 and 2014.  We also extracted data on county-level control variables from the US Census Bureau, the National Center for Health Statistics, and the US Centers for Disease Control and Prevention.  We used a two-way fixed-effects panel regression to examine the association between reduced household income, incarceration, and mortality from drug use disorders within counties over time.  To assess between-county variation, we used coarsened exact matching and a simulation-based modelling approach.

Findings After adjusting for key confounders, each 1 SD decrease in median household income was associated with an increase of 12·8% (95% CI 11·0–14·6; p<0·0001) in drug-related deaths within counties.  Each 1 SD increase in jail and prison incarceration rates was associated with an increase of 1·5% (95% CI 1·0–2·0; p<0·0001) and 2·6% (2·1–3·1; p<0·0001) in drug-related mortality, respectively.  The association between drug-related mortality and income and incarceration persisted after controlling for local opioid prescription rates.  Our model accounts for a large proportion of within-county variation in mortality from drug use disorders (R²=0·975).  Between counties, high rates of incarceration were associated with a more than 50% increase in drug-related deaths.

Interpretation Reduced household income and high incarceration rates are associated with poor health. T he rapid expansion of the prison and jail population in the USA over the past four decades might have contributed to the increasing number of deaths from drug use disorders.

UPDATE: I see now that this journal issue also has this related editorial titled "US mass incarceration damages health and shortens lives." Here is an excerpt:

The findings of this study support a plausible case that mass incarceration has added to the damaging effects of economic decline in increasing drug use and mortality. Incarceration can lead to drug addiction and death by feeding feelings of stigmatisation, by entrenching poor economic prospects, by breaking up families and communities, and by worsening individual mental health.

Over the past 40 years, US politicians of all stripes have sought to appear tough on crime, which has led to an over-reliance on incarceration across many types of offences and damaged public health.  Drastic changes to the justice system will be needed to seriously reduce the prison population.  Legislators need to repeal regressive sentencing laws that inflate the use of imprisonment (such as the three strikes law) and allow judges to pass sentences that are proportional to the crime.  Discriminatory policies and those that unfairly pull the poor into incarceration — such as money bail, plea bargaining, and arrests for crimes of poverty — must also be addressed.  Finally, chronic substance abuse should be confronted with treatment, not criminalisation.  As Natasa Gisev and colleagues' study shows, also in this issue, consistent opioid agonist treatment can reduce criminal involvement.  Drug misuse is a public health issue; more than a criminal one, and like many other petty crimes, it would be more effectively addressed by investment in social and community services, and not in steel bars.

July 5, 2019 in Data on sentencing, Drug Offense Sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (4)

Emphasizing why community supervision realities must be focal point for criminal justice reforms

As noted in this post, last month the the Council of State Governments Justice Center produced this dynamic report spotlighting that a large percentage of all state prison admissions "are due to violations of probation or parole for new offenses or technical violations" and that "technical violations, such as missing appointments with supervision officers or failing drug tests, account"for almost a quarter of all state prison admissions.  Fittingly, I have recently seen two commentaries highlighting this CSG report to stress the importance of criminal justice reform efforts giving attention to this piece of the system.  Here are links to these pieces and a snippet therefrom:

From The Hill, "Want to cut the prison population?  Start by tackling probation reform" by Nila Bala:

Sadly, imprisoning technical violators often drives them even deeper into the criminal justice system. With a prison sentence, individuals can lose their jobs, their homes, and their children, which are all of the important social supports they had formed in their community, making them more likely to return to crime.  Imprisoning individuals for technical violations is also costing taxpayers to the tune of $2.8 billion in incarceration costs.

We should save prison beds for those who have committed serious and violent offenses instead of for those who have broken curfew or failed to pay a probation fee. Instead of imprisoning technical violators, we should hold them accountable in the community in ways that do not harm public safety.  By eliminating prison terms for technical violations, or at least by capping the length of their prison stays, states can work to reduce their prison numbers in a significant way.  Along with the reform of supervision conditions, we can work to limit probation to those who really need it and to divert the many lower risk individuals away from the system altogether.

If there is one foundational value that we can adopt in the criminal justice system to change its ethos, it is human dignity. It should not fall by the wayside when people are released from prison.  It is even more important as we welcome individuals back into the social fabric of our communities. The Council of State Governments report guides states in asking how they can limit the supervision to prison pipeline.  With this data, states hold the potential to reform their supervision practices in ways that improve public safety, yield valuable cost savings, and respect the human dignity of all.

From USA Today, "As candidates search for criminal justice talking points, parole and probation reform should top list" by Megan Quattlebaum and Juliene James:

Instead of moving people away from prison, the use of parole and probation is a prime contributor to still stubbornly high incarceration rates. This undermines people’s ability to reintegrate into a free society after conviction.

The nation can and should focus efforts and resources on reducing new criminal behavior. By keeping people out of prison, we can better ensure that they keep their jobs, stay connected to their families and have a fair chance at contributing to society.

The nation's probation and parole disproportionately burdens poor and minority communities. Black Americans account for more than 30% of the people on probation and parole, despite being only 13% of the U.S. population. How can we expect people to live successful lives when they’re under the constant scrutiny of unforgiving criminal justice supervision?

Red and blue states alike have prison systems that are straining under the weight of incarcerating significant numbers of people who have violated their supervision.

State lawmakers need to start looking at their own statistics and asking whether probation and parole are serving their intended goals. What types of new offenses are responsible for supervision revocations? What practices and programs can discourage people under supervision from committing new crimes? What is a better way to handle technical violations?

A few prior recent related posts:

July 5, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

July 4, 2019

Imagining an Independence Day in which Governors and the President compete to use their clemency powers to enhance liberty and freedom

I was pleased my news feed this morning included this local article from Arkansas headlined "Gov. Hutchinson announces pardons for 10 people."   Here are the details from the article:

Arkansas Governor Asa Hutchinson announced Wednesday that he will grant pardons to 10 people, including two from right here in the Mid-South.

Larry Smith of Marion was convicted on felony drug and misdemeanor assault charges in Crittenden County in 2005.  Wayne Wilson of Gosnell was convicted in 1971 and 1995 on burglary, petit larceny and first-degree assault in Mississippi County.  In both cases the applicants have completed their jail sentences, fulfilled all parole requirements and paid all fines connected to their cases.

Theodis Akins of Hampton, Virginia; Shakeylla Allen of Alexander; Miranda Jones Childers of Charlotte; John Dougan of North Little Rock; LaToya Hopson of Hot Springs; Rommie McDaniel of Bradford;Pierre Newman of Little Rock; and Robert Seay III will also receive a pardon, Hutchinson said

I often use Independence Day as an opportunity to encourage everyone to think about Americans who could benefit from more liberty -- see, e.g., Hey Prez Trump, how about honoring Independence Day by using your clemency power to give some more Americans more liberty? and  "What to the American imprisoned is the Fourth of July?" -- and this news out of Arkansas got me to imagining an America in which Governors and the President compete to enhance freedom through all sorts of clemency grants.  In a country in which we have managed to make a July 4th tradition of eating hot dogs and competing over who can eat the most hot dogs, I do not think it is such a bad idea to imagine competition around enhancing freedom on the day we celebrate out country's declaration about the importance of freedom.

July 4, 2019 in Clemency and Pardons, Who Sentences | Permalink | Comments (1)

July 3, 2019

Spotlighting challenges at intersection of trying kids as adults and sexual offenses

The decision to try a juvenile offender as an adult often serves as a kind of sentencing decision. That reality, plus the always wrought policy and politics surrounding sex offenses, leads me to be interested in reactions to this new New York Times piece headlined "Teenager Accused of Rape Deserves Leniency Because He’s From a ‘Good Family,’ Judge Says." Here are excerpts from the lengthy front-page story:

The 16-year-old girl was visibly intoxicated, her speech slurred, when a drunk 16-year-old boy sexually assaulted her in a dark basement during an alcohol-fueled pajama party in New Jersey, prosecutors said.

The boy filmed himself penetrating her from behind, her torso exposed, her head hanging down, prosecutors said. He later shared the cellphone video among friends, investigators said, and sent a text that said, “When your first time having sex was rape.”

But a family court judge said it wasn’t rape. Instead, he wondered aloud if it was sexual assault, defining rape as something reserved for an attack at gunpoint by strangers.  He also said the young man came from a good family, attended an excellent school, had terrific grades and was an Eagle scout.  Prosecutors, the judge said, should have explained to the girl and her family that pressing charges would destroy the boy’s life.

So he denied prosecutors’ motion to try the 16-year-old as an adult. “He is clearly a candidate for not just college but probably for a good college,” Judge James Troiano of Superior Court said last year in a two-hour decision while sitting in Monmouth County.

Now the judge has been sharply rebuked by an appeals court in a scathing 14-page ruling that warned the judge against showing bias toward privileged teenagers.  In doing so, the appeals court cleared the way for the case to be moved from family court to a grand jury, where the teenager, identified only as G.M.C. in court documents, will be treated as an adult. New Jersey law allows juveniles as young as 15 to be tried as adults when accused of serious crimes, and the grand jury will weigh whether to indict him on the sexual assault accusation.

In recent years, judges across the country have come under fire for the way they have handled sexual abuse cases. One of the most notorious was in 2016, when a judge in California sentenced a Stanford University student to six months in jail after he was found guilty of sexually assaulting an unconscious woman.  After an intense public backlash, California voters recalled the judge.

Judge Troiano, who is roughly 70, was one of two family court judges whom appeals courts in New Jersey have criticized in recent weeks over relatively similar issues.

In the other case, the appellate division reversed another judge’s decision not to try a 16-year-old boy as an adult after he was accused of sexually assaulting a 12-year-old girl in 2017.  The second family court judge, Marcia Silva, sitting in Middlesex County, denied a motion to try the teenager as an adult and said that “beyond losing her virginity, the State did not claim that the victim suffered any further injuries, either physical, mental or emotional.”

The appellate judges also upbraided Judge Silva, overturning her decision and noting that the teenager could be culpable because the 12-year-old was not old enough to provide consent in the first place.

The judge in Monmouth County, Mr. Troiano, was scolded by the appellate court, according to the panel’s decision.  “That the juvenile came from a good family and had good test scores we assume would not condemn the juveniles who do not come from good families and do not have good test scores from withstanding waiver application,” the panel wrote in its decision.

Family court cases are typically closed to the public, but the judges’ comments surfaced in June when the appeals court decisions were made public, joining a series of contentious sexual assault cases that have ignited outrage over a legal system that advocates for victims say is warped by bias and privilege.

In the first case, heard by Judge Troiano, it is unclear from court documents when and specifically where in New Jersey the incident involving the two 16-year-olds took place. But prosecutors said it occurred during a party packed with 30 other teenagers.  The case was highlighted by a New Jersey radio station, 101.5....

In an interview, Christopher J. Gramiccioni, the county prosecutor said, “This is conduct that should be punished in adult court.” “We subscribe to the idea that the juvenile system is supposed to be rehabilitative,” he said.  “But when you’re dealing with charges as serious as these, it’s a whole different ball of wax.”...

Mr. Gramiccioni said New Jersey has a progressive juvenile system: Juvenile cases are not shown to juries, juvenile records are kept from public view and sentences are typically more lenient than when a person is tried as an adult.  A recent law made it illegal to try defendants younger than 15 as adults.

July 3, 2019 in Offender Characteristics, Sex Offender Sentencing, Who Sentences | Permalink | Comments (2)

"Language matters for justice reform"

The title of this post is the headline of this notable recent Hill commentary authored by Deanna Hoskins. I recommend the whole piece, and here is an excerpt:

Words such as offenders, convicts, prisoners and felons have existed in our lexicon for decades if not centuries.  But in recent years people have begun speaking out against the use of these dehumanizing terms.  Eddy Ellis, the late justice reform leader, penned a letter more than 15 years ago that ignited a movement demanding an end to dehumanizing language. He wrote, “The worst part of repeatedly hearing your negative definition of me is that I begin to believe it myself ‘for, as a man thinketh in his heart, so is he.’ It follows, then, that calling me inmate, convict, prisoner, felon, or offender indicates a lack of understanding of who I am, but more importantly what I can be.”

Movement leaders have long-recognized Mr. Ellis’s call to use humanizing language — but journalists, elected officials, and people new to the field must recognize this and make the shift as well.  In some state corrections systems, offensive terms such as “inmate” and “offender” have been banned from prisons.  A few years ago, the Department of Justice Office of Justice program that oversees criminal justice efforts announced that it would no longer use the word felon or convict in any of its communications and grant solicitations, instead using “a person who committed a crime.”  Resources including Mr. Ellis’ letter, the Social Justice Phrase Guide and The Opportunity Agenda’s toolkit are readily available to help people understand humanizing “people-first” language and why it’s important.

When we no longer define someone in the media or other arenas as “other,” we shift culture and policies toward human rights and dignity.  By making a conscious effort to change, we can use language that addresses injustice without dehumanizing people — especially black and brown people facing disproportionate discrimination after a record. Several years ago racial justice advocates, successfully stopped media outlets such as the Associated Press from using the phrase “illegal immigrant” which implied that a person’s existence violated the law.  Doing so brought attention to the mistreatment and human rights violations experienced by immigrants seeking refuge in this country.

We can achieve the same in the justice space. We must all commit to using terms such as “formerly incarcerated or incarcerated person” or “person with a felony conviction” instead of “ex-con,” “felon,” or “inmate.”  By doing so we make a conscious effort to recognize and respect people’s humanity.  To do otherwise only reinforces the second-class status we relegate upon many people in this country and therefore stalls our efforts toward equal justice for all.

I am quite sympathetic to the spirit and substance of this commentary, but I fear I will continue to struggle to move away from short-hand terminology like offender and prisoner (rather than person who committed an offense or person in prison).  

July 3, 2019 in Offender Characteristics, On blogging, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (2)

State judge finds Kentucky still failing to implement properly death penalty exemption for defendants with intellectually disability

A helpful reader sent me this news story from Kentucky headlined "Kentucky judge declares state's death penalty protocol unconstitutional."  Here are the basics:

A Kentucky judge has struck down the state's death penalty protocol as unconstitutional because it does not explicitly prohibit the execution of prisoners with intellectual disabilities.

Ruling on a motion brought by a dozen inmates on death row, Franklin Circuit Judge Phillip Shepherd ruled Tuesday that the regulation is invalid because it doesn't automatically suspend an execution when the state corrections department’s internal review shows a condemned person has an intellectual disability.

Granting a motion filed by the Department of Public Advocacy, Shepherd said the state's rules are flawed because they would allow a prisoner with intellectual disabilities to be executed if he or she declines further appeals.  The U.S. Supreme Court “categorically prohibits the execution of intellectually disabled persons,” Shepherd noted.

Assistant Public Advocate David Barron said all executions in Kentucky already had been stayed because of questions about the state's means of lethal injection, as well as other issues. Tuesday's ruling continues that stay, he said.

Barron called the opinion "a sound ruling that recognizes what we have been arguing for years."  He said the corrections department has “doggedly persisted” in refusing to recognize the U.S. Supreme Court’s ruling 17 years ago by taking “reasonable steps to ensure that an intellectually disabled person is not executed.”

The Kentucky attorney general’s office, which defended the regulations, is reviewing the ruling, spokesman Kenneth Mansfield said.

July 3, 2019 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

July 2, 2019

"The Founders' Forfeiture"

The title of this post is the title of this new paper by Kevin Arlyck now available via SSRN that seems like especially good Fourth of July week reading. Here is its abstract:

Civil forfeiture is, in a word, controversial.  Critics allege that law enforcement authorities use forfeiture as means of appropriating valuable assets from often-innocent victims free of the constraints of criminal process.  Yet despite recent statutory reforms, a significant obstacle to meaningful change remains: Under longstanding Supreme Court precedent, the Constitution imposes few limits on civil forfeiture.  Relying on a perceived historical tradition of unfettered government power to seize and keep private property in response to legal violations, the Court has consistently rejected claims to constitutional protections.  Faced with an unfriendly historical tradition, forfeiture’s critics have tried to limit history’s relevance by asserting that forfeiture was traditionally used for limited purposes, but such arguments have fallen on deaf ears.

As this Article explains, forfeiture’s critics are right, but for the wrong reasons.  Based on original research into more than 500 unpublished federal forfeiture cases from 1789 to 1807, this Article shows — for the first time — that forfeiture in the Founding era was significantly constrained.  But not by judges. Instead, concern over forfeiture’s potential to impose massive penalties for minor and technical legal violations spurred Alexander Hamilton and the First Congress to establish executive-branch authority to return seized property to those who plausibly claimed a lack of fraudulent intent.  What is more, Hamilton and subsequent Treasury Secretaries understood themselves to be obligated to exercise that authority to its fullest extent — which they did, remitting forfeitures in over 90% of cases presented to them.   The result was an early forfeiture regime that was expansive in theory, but in practice was constrained by a deep belief in the impropriety of taking property from those who inadvertently broke the law.

Understanding early forfeiture’s true nature has significant implications for current debate about its proper limits.  The existence of meaningful constraints in the Founding era calls into question key historical propositions underlying the Court’s permissive modern jurisprudence, and suggests that history may offer an affirmative basis for identifying greater constitutional protections today.  This is also an opportune moment to reexamine forfeiture’s historical bona fides.  In addition to a growing public outcry over civil forfeiture, there are hints that members of the current Supreme Court may be willing to reconsider its constitutionality.

July 2, 2019 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"The Gendered Burdens of Conviction and Collateral Consequences on Employment"

The title of this post is the title of this notable paper recently posted to SSRN and authored by Joni Hersch and Erin Meyers.  Here is its abstract:

Ex-offenders are subject to a wide range of employment restrictions that limit the ability of individuals with a criminal background to earn a living.  This Article argues that women involved in the criminal justice system likely suffer a greater income-related burden from criminal conviction than do men.  This disproportionate burden arises in occupations that women typically pursue, both through formal pathways, such as restrictions on occupational licensing, and through informal pathways, such as employers’ unwillingness to hire those with a criminal record.

In addition, women have access to far fewer vocational programs while incarcerated.  Further exacerbating this burden is that women involved in the criminal justice system tend to be a more vulnerable population and are more likely to be responsible for children than their male counterparts, making legal restrictions on access to public assistance that would support employment more burdensome for women.  We propose programs and policies that may ameliorate these gendered income burdens of criminal conviction, including reforms to occupational licensing, improved access to public assistance, reforms to prison labor opportunities, improvements in labor market information sharing, and expanded employer liability protection.

July 2, 2019 in Collateral consequences, Race, Class, and Gender | Permalink | Comments (0)

July 1, 2019

Two more notable imprisonment reductions using § 3582(c)(1)(A), one for LWOP term and another to remedy BOP's "abysmal health care"

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 a defendant presents "extraordinary and compelling reasons" supporting the reductions.  Earlier this month, I posted here and posted here two notable examples of judges finding notable reasons sufficient to reduce a sentence while 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.  US v. Cantu, No. 1:05-CR-458-1, 2019 WL 2498923 (S.D. Tex. June 17, 2019) (finding extraordinary that government urged release to home confinement); see also US v. Cantu-Rivera, Cr. No. H-89-204, 2019 WL 2578272 (SD Tex. June 24, 2019) (finding FIRST STEP Act amendment of LWOP sentences supported finding of "extraordinary and compelling reasons").

Now I see that just late last week, at least two more district court issues two more important reductions in prison terms based on § 3582(c)(1)(A).  First, in US v. Johns, No. CR 91-392-TUC-CKJ, 2019 WL 2646663 (D. Ariz. June 27, 2019), a judge decided to reduce an LWOP drug conspiracy term because the defendant was 81 years old, now 81 years old, had served almost 23 years of his sentence and is "is rapidly deteriorating due to his age." Though an emphasis on old and and health is not unusual in this setting, I think the reduction of any federal LWOP sentence is noteworthy. 

Second, and even more interesting, US v. Beck, No. 1:13-CR-186-6, 2019 WL 2716505 (M.D.N.C. June 28, 2019).  In Beck, the judge authored a lengthy explanation for her reduction of the sentence to time served, and the start and conclusion provides an overview of the court's thinking:

Angela M. Beck is a federal prisoner serving a sentence for drug and firearms offenses.  She has cancer in her left breast and the Bureau of Prisons has not provided appropriate medical care for her disease, with repeated delays that have prevented her from timely obtaining urgent tests and treatment.  In the meantime, her cancer spread to her lymph nodes and possibly to her right breast.  Ms. Beck has filed a motion under the First Step Act of 2018 seeking immediate compassionate release.  Because Ms. Beck’s invasive cancer and BoP’s history of indifference to her treatment constitute extraordinary and compelling reasons, and because the § 3553(a) factors support a sentence reduction to time served, the motion for compassionate release will be granted....

Ms. Beck committed serious drug and firearms offenses with her husband in 2012 and 2013 that warrant substantial punishment.  She has served over six years of her sentence, nearly two of them with breast cancer treated so untimely as to significantly reduce her chances of survival.  Ms. Beck’s invasive cancer and the abysmal health care BoP has provided qualify as “extraordinary and compelling reasons” warranting a reduction in her sentence to time served.  See 18 U.S.C. 3582(c)(1)(A)(i).  While the old policy statement is not directly applicable to motions filed by defendants, a reduction is consistent with its general guidance and the Sentencing Commission’s intent.  With appropriate supervision, Ms. Beck poses little risk of recidivism or danger to the community.  She has already served an arduous sentence, and the § 3553 factors support a sentence reduction.  As such, Ms. Beck is entitled to compassionate release.

Just a few more remarkable stories made possible by the FIRST STEP Act.  I know many advocates hoped and wanted for the FIRST STEP Act to go a lot further and do a lot more.  But I continue to see a number of provisions of the Act as passed, particularly 18 U.S.C. § 3582(c)(1)(A) and a few other provisions, as have a whole lot of potential to do a whole lot of good if used well.  (Indeed, I am hoping folks hoping to get retroactive relief from recent SCOTUS decisions like Rehaif and Davis and Haymond come to see the power and potential of § 3582(c)(1)(A)(i).

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

July 1, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Beyond the Algorithm Pretrial Reform, Risk Assessment, and Racial Fairness"

The title of this post is the title of this notable new report released by the Center for Court Innovation and authored by by Sarah Picard, Matt Watkins, Michael Rempel and Ashmini Kerodal. Here is its introduction: 

Pretrial detention, often resulting from a defendant’s inability to afford bail, is one of the primary drivers of incarceration nationwide. The Bureau of Justice Statistics estimates that two out of three people in local jails in 2016 were held while awaiting trial, having not yet been convicted of a crime.  Jurisdictions looking to safely reduce their use of bail and pretrial detention have increasingly turned to automated or actuarial risk assessments.  These tools employ a mathematical formula, or algorithm, to estimate the probability of a defendant incurring a new arrest or failing to appear in court.  Typically, in a risk assessment, defendants’ criminal history, criminogenic needs, and/or basic demographic information, such as age and gender, are weighted and combined, generating a score which can be used to group defendants into risk categories ranging from low to high.

With the aid of better information about the defendants who appear before them, judges, in theory, can make more consistent decisions regarding pretrial release and bail.  For example, jurisdictions that use risk assessments may be more likely to consider pretrial release for defendants in lower-risk categories, or pretrial supervision in the community for higher-risk defendants.  In cases where victim or community safety is a concern, risk assessment may provide guidance regarding the need for bail or detention hearings.

The appeal of pretrial risk assessment — especially in large, overburdened court systems — is of a fast and objective evaluation, harnessing the power of data to aid decision-making.  Research suggests that actuarial risk assessments are more accurate than decisions made by criminal justice officials relying on professional judgment alone.  By intervening in a process historically driven by subjective decisionmaking, risk assessments arguably act as a corrective to a system plagued by bias, as witnessed in the racial disparities long seen in incarceration rates across the country.

That said, important objections have been raised that, far from disrupting racial biases in the criminal justice system, risk assessments unintentionally amplify them, only this time under the guise of science.  The debate is still unresolved, but from a justice system practitioner’s perspective — let alone that of a defendant — the stakes are urgent.

What follows are the results of an empirical test of racial bias in risk assessment and, based on an original analysis, a consideration of whether there are policy-level solutions that could conserve the benefits of risk assessment, while also addressing valid concerns over racial fairness.

July 1, 2019 in Procedure and Proof at Sentencing, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (0)

Urging US Sentencing Commission to "undertake a top-to-bottom review" of harsh federal sentencing guidelines

I am very pleased to see US District Judge Lynn Adelman taking to the pages of the Washington Post to pen this new opinion piece under the headline "There’s another tough-on-crime law Democrats should focus their criticism on." I recommend the piece in full, and here are excerpts:

Some of the Democratic presidential candidates have criticized the tough-on-crime legislation enacted during the 1980s and 1990s, arguing that it contributed to the mass incarceration that shames the country today.  The candidates and other critics have focused on the 1994 crime bill, which provided incentives for states to build more prisons and impose longer sentences, and the 1986 Anti-Drug Abuse Act, which established harsh sentences for drug offenses, particularly those involving crack cocaine.

The criticism of these provisions is entirely justified.  But not enough attention has been paid to another 1980s-era tough-on-crime law that is still very much with us, causing substantial unnecessary incarceration, particularly of African Americans and Hispanics: the 1984 Sentencing Reform Act.

Among its “reforms,” the law eliminated parole for federal offenders and created the U.S. Sentencing Commission that then promulgated the Federal Sentencing Guidelines.  The act, the commission and the guidelines have been a disaster, and a debate by lawmakers about their status is long overdue.  As a result of the sentencing guidelines, as well as sentencing practices in state courts, the United States is now an outlier not just among democracies but among all nations....

The commission established harsh sentencing guidelines and barred judges from putting defendants on probation except in rare instances.  Over the next 20 years, the commission regularly amended the guidelines, making them even more severe.

The average federal sentence increased from 28 to 50 months afterward and, with the abolition of parole, the average time that a defendant served increased from 13 to 43 months....   Between 1987 and 2019, the federal prison population increased from about 50,000 to 219,000 before dropping to about 180,000.  In 2005, with the landmark decision in United States v. Booker, the Supreme Court struck down the mandatory feature of the guidelines, giving judges the opportunity to establish a less punitive sentencing regime.  In subsequent decisions, the court made clear that judges had no obligation to follow the guidelines.

Unfortunately, district court judges have largely failed to take advantage of Booker to ameliorate the harshness of the federal sentencing system.  After Booker, judges slightly reduced the length of sentences, from 47.9 months in fiscal 2003, to 44 months in 2018.  Shockingly, the number of offenders receiving prison-only sentences actually increased, from 83.3 percent in fiscal 2003 to 87.8 percent in fiscal 2018.  The sentencing commission could lead the way in pressing judges to take Booker to heart, given the commission’s considerable authority regarding federal sentencing policies, but it has provided little leadership.  For too long, the commission has focused instead on trying to minimize inter-judge disparities in sentencing.

The commissioners might better understand the impact of its policies if they ventured outside Washington and held public hearings in urban and rural America about federal sentencing guidelines.  Hearing firsthand about the devastating effect on families of the United States’ punitive approach, particularly in drug cases, might open some commissioners’ eyes.

Ideally, the commission would then undertake a top-to-bottom review of the guidelines, with an eye toward recommending as many noncustodial sentences as possible and reducing the length of prison sentences.  Putting a dent in federal mass incarceration would set an example for state correctional systems.

In fairness, the commission in recent years has taken some important steps in the right direction.  Particularly significant was its 2014 decision to reduce all drug guidelines by two levels and to make the policy retroactive, thereby reducing sentences for some 32,000 prisoners.  Congress’s recently enacted First Step Act was another move in the right direction, addressing the disparity in punishment for offenses involving crack and powder cocaine. But more needs to be done to reset a system that has done untold harm over the past three decades.  At a minimum, the Sentencing Reform Act should be substantially revised.  Congress was foolish to have abolished parole and should overturn that decision.

This commentary provides a terrific and needed reminder that the Booker decision did not considerably mute the punitive impact of harsh sentencing guidelines (even though I think it has tended to considerably mute the amount of criticism of these guidelines). As mentioned in this post last week, right now the US Sentencing Commission is unable to function fully because it only has two of seven Commissioner slots filled. So "public hearings in urban and rural America" in conjunction with a "top-to-bottom review" of the guidelines cannot really happen unless and until we get a slate of new Commissioners with an interest in such an agenda. I hope this piece gets those folks in the campaigns and on Capitol Hill who are really committed to criminal justice reform to be thinking about the potential that a reform-oriented Commission might have.

July 1, 2019 in Campaign 2020 and sentencing issues, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Based on statutory proportionality review, split New Mexico Supreme Court dismiss death sentences for two murderers left on state's death row a decade after legislative abolition

As well reported in this Courthouse News Service piece, headlined "New Mexico Supreme Court Vacates Two Remaining Death Sentences," the final anti-death penalty shoe finally dropped in New Mexico a full decade after the state's legislature repealed its death penalty.  Here ere are the basics:

A divided New Mexico Supreme Court Friday set aside the death sentences of the last two men awaiting execution in the state, ruling that the penalties were disproportionate in comparison to sentences in similar murder cases.  The death penalty was abolished in New Mexico in 2009, but the death sentences of Timothy Allen and Robert Fry remained in place, because they were convicted and sentenced years before the change.

Allen and Fry were sentenced under a New Mexico law that requires the state’s highest court to review “comparative proportionality” in capital punishment cases.  State lawmakers adopted the 1976 law to ensure that the death penalty was not being imposed in ways that would violate inmates’ constitutional protections against cruel and unusual punishment.

Writing for the majority Friday, New Mexico Supreme Court Justice Barbara J. Vigil said justices found “no meaningful distinction” between the circumstances of Allen and Fry’s cases and those of similar murder cases.  “The absence of such a distinction renders the ultimate penalty of death contrary to the people’s mandate that the sentence be proportionate to the penalties imposed in similar cases,” Vigil said in the 147-page opinion.

Retired Justices Edward L. Chávez and Charles W. Daniels joined the majority decision, which did not address concerns over potential violations to Allen and Fry’s constitutional rights. Daniels wrote in a concurring opinion that “equally culpable” defendants in murder cases escaped the death penalty, adding that New Mexico has not imposed the death penalty in a “proportionate” way.  “A killer’s crimes reflect who he is,” Daniels said.  “What we do to the killer reflects who we are.”

Chief Justice Judith K. Nakamura wrote in the dissenting opinion that the majority misinterpreted the law.  “The Majority misstates the governing law and has done what our Legislature would not: repeal the death penalty in its entirety for all defendants in New Mexico,” said Nakamura, who was joined in dissent by retired Justice Petra Jimenez Maes.  “They perceive in the language authority to conclude that, because so few offenders in New Mexico have ever been sentenced to die, no offenders shall ever again be sentenced to die in New Mexico.”

The full 147-page ruling is available at this link, and here is how the Court's opinion gets started:

In this case we revisit our statutory responsibility to ensure that the death penalty is reserved for the most heinous crimes.  Since 1979, the New Mexico Legislature has directed this Court to ensure that “the death penalty shall not be imposed if . . . the sentence of death is excessive or disproportionate to the penalty imposed in similar cases.” NMSA 1978, § 31-20A-4(C)(4) (1979, repealed 2009).

In 2009, the Legislature abolished the death penalty as a sentencing option for murders committed after July 1, 2009.  Today, Petitioners Robert Fry and Timothy Allen, who committed their crimes before 2009, are the last inmates who remain on death row in New Mexico.  Fry and Allen filed Petitions for Writs of Habeas Corpus seeking to dismiss their death sentences in light of the prospective-only application of the repeal.

In this consolidated appeal of the district court’s denial of Petitioners’ motions to dismiss their death sentences, we hold that Petitioners’ death sentences are disproportionate and violate Section 31-20A-4(C)(4).  Guided by our recognition that our Legislature intended for comparative proportionality review to protect against the arbitrary imposition of the death penalty, we conclude that there is no meaningful basisfor distinguishing Fry and Allen from the many similar casesin which the death penalty was not imposed.  Because Petitioners’ death sentences are statutorily disproportionate to the penalties imposed in similar cases, we remand each case to the district court to impose a sentence of life imprisonment.

Though taking longer in New Mexico than elsewhere, this ruling continues the well-established trend of state courts finding one way or another to give retroactive effect to the statutory repeal of the death penalty even when a legislature has sought to explicitly provide for the carrying out of prior lawful death sentence.

July 1, 2019 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)