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August 10, 2019

Another two more open access articles from FSR issue on "The Tyranny of the Trial Penalty"

In this post a few months ago, I highlighted the publication of the latest extraordinary (double) issue of the Federal Sentencing Reporter titled "The Tyranny of the Trial Penalty: The Consensus that Coercive Plea Practices Must End."  As mentioned before, this FSR issue includes 16(!) original pieces on various aspects of "The Trial Penalty," and it is fully available on-line at this link

As also mentioned before, though a full subscription to FSR is needed for full on-line access to all FSR content, the University of California Press has graciously agreed to make various articles from this special issue available to all on-line for a limited period.  Valuably, the issue's terrific introduction authored by Norman Reimer, executive director of NACDL, and his colleague Martín Sabelli, NACDL's second vice president, is to remain freely available for an extended period of time.  And \these two additional pieces are now accessible to all (with a paragraph quoted here):

The Insidious Injustice of the Trial Penalty: “It is not the intensity but the duration of pain that breaks the will to resist. by Emma Andersson and Jeffery Robinson

Like most abusive practices in the criminal legal system, the trial penalty has a greater impact on people of color and the poor than it does on others. Although wealthy clients cannot buy their way out of a trial penalty, they can mitigate its impact by paying higher fines or penalties in exchange for shorter sentences. Bail pending resolution of the case can also impact the ultimate sentence — people who are out of custody at the time of sentencing tend to get shorter sentences that those who are in custody. Money and race play out in the bail system like they do in every other part of the criminal legal system. In addition to shorter sentences, the conditions of confinement faced by wealthy people (who can hire consultants to try to improve placement in a prison system) can be extraordinarily better than those generally faced by people of color and the poor.

Innocents Who Plead Guilty: An Analysis of Patterns in DNA Exoneration Cases by Glinda S. CooperVanessa Meterko and Prahelika Gadtaula

Since 1989, the year of the first DNA exoneration, more than 360 people have been exonerated based on DNA evidence. The vast majority (> 98 percent) had been wrongfully convicted of serious felonies involving homicide or sexual assault. These DNA exonerations represent 15 percent of the 2,359 exonerations documented in the United States. Among the many insights drawn from these wrongful convictions is the realization that a guilty plea is not an uncommon outcome for innocent people who have been charged with a crime: 11 percent of the DNA exonerees recorded by the Innocence Project pleaded guilty.  This paper explores demographic, crime-related, and sentencing factors associated with the decision of people to plead guilty to a crime they did not commit.

Prior related posts:

August 10, 2019 in Procedure and Proof at Sentencing, Recommended reading | Permalink | Comments (0)

Fifth Circuit articulates limiting account of FIRST STEP Act crack resentencing

A helpful colleague made sure I did not miss the notable Fifth Circuit opinion on FIRST STEP Act resentencing this past week in US v. Hegwood, No. 19-40117 (5th Cir. Aug 8, 2019) (available here). Congress finally provided for complete retroactivity of the Fair Sentencing Act (FSA) in section 404 of the FIRST STEP Act, but the language of that section left unclear whether a sentencing court is to conduct a full resentencing under the Act or a more limited sentencing modification for eligible offenders. District courts have been dealing with this resentencing question in various ways, and the Fifth Circuit panel ruling in Hegwood may be the first to address the issue. Here is its key passages:

This appeal concerns the First Step Act, in which Congress permitted a sentencing court to “impose a reduced sentence as if . . . the Fair Sentencing Act of 2010 . . . were in effect at the time the covered offense was committed.” The issue is whether district courts are authorized to conduct a plenary resentencing, which would include recalculating the Sentencing Guidelines range as if the defendant were being sentenced for the first time under present law, or whether courts are limited to reductions resulting from the Fair Sentencing Act. Concluding that the First Step Act does not allow plenary resentencing, we AFFIRM....

Hegwood argues that a new sentence under the First Step Act requires a Guidelines calculation to be made that is correct as of the time of the new sentencing, and Section 3553(a) factors are to be applied anew....

It is clear that the First Step Act grants a district judge limited authority to consider reducing a sentence previously imposed. The calculations that had earlier been made under the Sentencing Guidelines are adjusted “as if” the lower drug offense sentences were in effect at the time of the commission of the offense. That is the only explicit basis stated for a change in the sentencing. In statutory construction, the expression of one thing generally excludes another. TRW Inc. v. Andrews, 534 U.S. 19, 28-29 (2001).  The express backdating only of Sections 2 and 3 of the Fair Sentencing Act of 2010 — saying the new sentencing will be conducted “as if” those two sections were in effect “at the time the covered offense was committed” — supports that Congress did not intend that other changes were to be made as if they too were in effect at the time of the offense.

These limits make the First Step Act similar to Section 3582(c), which opens the door only slightly for modification of previously imposed sentences for certain specified reasons, including the lowering by the Sentencing Commission of the sentencing range that was in effect for the defendant at the time of initial sentencing. 18 U.S.C. § 3582(c)(2).  The Supreme Court held that “Section 3582(c)(2)’s text, together with its narrow scope, shows that Congress intended to authorize only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding.” Dillon v. United States, 560 U.S. 817, 826 (2010).

We do not see any conflict in this interpretation of Section 404 of the First Step Act with the provisions of 18 U.S.C. §§ 3582 and 3553. The district court under Section 3582(a) is only required to consider the Section 3553(a) factors “to the extent that they are applicable.” The government, relying on the fact that the First Step Act gives the court discretion whether to reduce a sentence, argues that the ordinary Section 3553(a) considerations apply to determine whether to reduce the defendant’s sentence.

The mechanics of First Step Act sentencing are these.  The district court decides on a new sentence by placing itself in the time frame of the original sentencing, altering the relevant legal landscape only by the changes mandated by the 2010 Fair Sentencing Act.  The district court’s action is better understood as imposing, not modifying, a sentence, because the sentencing is being conducted as if all the conditions for the original sentencing were again in place with the one exception.  The new sentence conceptually substitutes for the original sentence, as opposed to modifying that sentence.

As a matter of statutory interpretation, I can understand why the Fifth Circuit is inclined in Hegwood to approach FSA retroactivity as only a modest sentence modification proceeding.  But as a matter of sound policy and practice, I think it makes more sense to approach these cases as full resentencings with all subsequent changes in both  applicable sentencing laws and relevant sentencing facts available for, an integral to, the judge's resentencing decision.  Otherwise, as seems to be the case in Hegwood, a defendant already subject to the undue harshness of the old 100-1 crack mandatory minimums is still forced to endure the undue harshness of other problems with the guidelines that have been fixed since his original sentencing.

I am hopeful, but not optimistic, that only a small number of defendants will be adversely impacted by the Hegwood approach to resentencing. And this case provides yet another example of how implementation of statutory sentencing reform can often be just as important for some defendants as the reform itself.

August 10, 2019 in FIRST STEP Act and its implementation, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

August 9, 2019

"Prisons are packed because prosecutors are coercing plea deals. And, yes, it's totally legal."

The title of this post is the title of this new commentary authored by Clark Neily, and it has this subheading: "American prosecutors are equipped with a fearsome array of tools they can and do use to discourage people from exercising their right to a jury trial." I recommend the full piece and here are excerpts:

America is the most prosperous country in the history of the world.  We excel at innovation and mass production — and nowhere is that more true today than our criminal justice system, which features a streamlined process for transforming millions of suspects into convicted criminals quickly, efficiently and without the hassle of a constitutionally prescribed jury trial.

It’s called coercive plea bargaining, and it’s the secret sauce that helps us maintain the world’s highest incarceration rate.

According to a recent study from the Pew Research Center, of the roughly 80,000 federal prosecutions initiated in 2018, just two percent went to trial.  More than 97 percent of federal criminal convictions are obtained through plea bargains, and the states are not far behind at 94 percent.  Why are people so eager to confess their guilt instead of challenging the government to prove their guilt beyond a reasonable doubt to the satisfaction of a unanimous jury?

The answer is simple and stark: They’re being coerced.

Though physical torture remains off limits, American prosecutors are equipped with a fearsome array of tools they can use to extract confessions and discourage people from exercising their right to a jury trial.  These tools include charge-stacking (charging more or more serious crimes than the conduct really merits), legislatively-ordered mandatory-minimum sentences, pretrial detention with unaffordable bail, threats to investigate and indict friends or family members, and the so-called trial penalty — what the National Association of Criminal Defense Lawyers calls the “substantial difference between the sentence offered prior to trial versus the sentence a defendant receives after a trial.”...

The framers of the U.S. Constitution put citizen participation at the very heart of our criminal justice system in the form of jury trials.  With coercive plea bargaining, prosecutors have ripped that heart right out of that system and made sure that ordinary citizens have almost nothing to do with the administration of criminal justice in America.

Our system wasn’t designed to function that way, and growing public disillusionment suggests that it won’t — not for much longer, anyway.

August 9, 2019 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

You be the Prez: would you grant a commutation to former Gov Blago?

Prez Trump has a distinctive and sometimes disturbing way of keeping policy and political stories interesting, and his use of the clemency power is no exception.  The latest developments on this front, which prompt the question in the title of this post, concern imprisoned former Illinios Gov Rod Blagojevich. Prez Trump has been talking up a possible commutation for some time, and this Politico article, headlined "Illinois Republicans urge Trump to keep Blagojevich in prison," has me suspecting that the Prez may not be prepared to "walk the walk" after talking the clemency talk.  Here are excerpts:  

Illinois’ delegation of House Republicans on Thursday urged President Donald Trump not to commute the sentence of Rod Blagojevich, the state’s former governor, after the president told reporters he was considering doing so. In a statement, Reps. Darin LaHood, John Shimkus, Adam Kinzinger, Rodney Davis and Mike Bost said that commuting Blagojevich’s sentence “sets a dangerous precedent and goes against the trust voters place in elected officials.”

“It’s important that we take a strong stand against pay-to-play politics, especially in Illinois where four of our last eight Governors have gone to federal prison for public corruption,” the congressmen wrote.

The state’s Republican delegation previously wrote to Trump in June 2018, also to oppose a presidential commutation of Blagojevich’s sentence. The Thursday statement renewed the call after Trump told reporters a day earlier that he felt Blagojevich’s seven years in prison had been enough.

“I thought he was treated unbelievably unfairly,” Trump said Wednesday. “He’s been in jail for seven years over a phone call where nothing happens.”

Blagojevich, a Democrat who served in the House before he was elected governor, was impeached and removed from office in 2009, and was later convicted on multiple charges of corruption, including trying to sell the U.S. Senate seat vacated by Barack Obama. During his trial, a recorded phone conversation revealed him saying: “I've got this thing, and it’s fucking golden. I’m just not giving it up for fucking nothing.” He was sentenced to 14 years in prison in a case that became a media frenzy. His family has tried multiple times to appeal the sentence.

Trump dismissed the phone call as “braggadocio” and nothing outside the norm of what has been said privately by several other elected officials.

On Thursday night, he tweeted that “many people” had asked him about commuting the sentence on account of its severity and that White House staff were looking into the matter. Prosecutors at the time of his trial argued that Blagojevich qualified for 30 years to life, but they recommended less time out of concern for his family.

As president, Obama declined to commute the sentence, and the Supreme Court declined to hear the case on more than one occasion. Trump, however, has raised the possibility of commutation in the past. In their 2018 letter opposing such a move, the Illinois Republicans — then including Peter Roskam and Randy Hultgren — said commuting the sentence would compromise trust in American democracy.

Notably, former Gov Blago has already served the equivalent of more than eight years of a federal prison sentence, which is considerably longer than the prior Gov George Ryan served for seemingly more extensive official misdeeds.  And I have a hard time seeing just how public safety (or "American democracy") is really served by his service of another half decade in federal prison. But, as the question in this post is meant to prompt, I am eager to hear others' thoughts on this matter.

August 9, 2019 in Celebrity sentencings, Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Bold effort by reform advocates to get federal Fair Chance Act enacted via defense bill

This piece from The Hill, headlined "Advocates ramp up pressure on criminal justice measure," explains how and why criminal justice reform advocates have a bold strategy to get additional federal reforms into law expeditiously.  Here are the interesting details:

A coalition of advocacy groups is ramping up pressure on lawmakers to include criminal justice legislation in a must-pass defense bill. The push comes as staffers and lawmakers are expected to informally start merging the House and Senate National Defense Authorization Acts (NDAAs) during the August recess.

The House-passed NDAA includes the Fair Chance Act, which prohibits the federal government and federal contractors from asking about a job applicant's criminal history before making a conditional offer of employment. The Senate's defense bill doesn't include the legislation.

Supporters are rolling out a new poll, obtained exclusively by The Hill ahead of its release, showing most Americans support the ideas behind the Fair Chance Act.

The poll — conducted by GOP polling firm Public Opinion Strategies on behalf of the Justice Action Network, a coalition of outside groups supporting the bill — found that 83 percent of voters say they would support a proposal that allows employers to conduct background checks "but not until after applicants have had a chance to share their skills and qualifications."...

"We've shown overwhelming public support, the administration has shown its support, and now we just need the Senate to include the amendment," said Holly Harris, the executive director of Justice Action Network. She added that she's "really hopeful that the leaders and those negotiating the bill will see both the policy value and the political value."...

The push to include the legislation in the NDAA comes as lawmakers are out of Washington until September. When they return, they'll have a packed floor schedule, including funding the government by Oct. 1 to prevent a second shutdown.

Jason Pye, the vice president of legislative affairs at FreedomWorks, noted that putting the criminal justice measure in the mammoth defense bill prevents it from having to compete with other items on the Senate's agenda. Senate Majority Leader Mitch McConnell (R-Ky.) is likely to prioritize nominations and appropriations when making decisions about the chamber's limited floor time in the fall. "The House could pass Fair Chance and send it over to the Senate and absent the White House saying 'hey McConnell, please take up this bill,' he's not going to do it," Pye said.

Neither the House nor Senate have named which senators will be on the conference committee that will ultimately sign off on the final version of the defense bill. In one potential hurdle to the Fair Chance Act, Sens. Rick Scott (R-Fla.) and Josh Hawley (R-Mo.) both asked to be recorded as "no" on the measure when it passed the Senate Homeland Security and Governmental Affairs Committee earlier this year. They are both members of the Armed Services Committee, making it possible that they end up on the NDAA conference committee.

The criminal justice bill comes after Congress passed long-stalled sentencing and prison reform legislation in late 2018. The bill had wide bipartisan support, but had stalled for years until President Trump threw his support behind it and publicly urged McConnell to give it a vote.

Rep. Doug Collins (R-Ga.), who is sponsoring the Fair Chance Act in the House along with Rep. Elijah Cummings (D-Md.), said he hopes the Fair Chance Act makes it into the NDAA. "The Fair Chance Act builds off the success of the First Step Act and goes one step further by helping rehabilitated men and women gain meaningful employment nationwide," he said. "This bill has the potential change lives and help communities everywhere by reducing recidivism and bringing hope to families from coast to coast.”

August 9, 2019 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

August 8, 2019

Lots of stories and commentary catching my eye as I am on the road

Blogging has been a bit lighter than usual for the first part of August because I am on the road for a last bit of summer fun before the new school year kicks into gear.  As a result, I have lacked time to blog about, but have today found some time to round up here, a a number of stories and commentaries that have caught my eye in recent days in my newsfeed:

From BuzzFeed News, "The Criminal Justice System Is Bad For Your Health, Warns New York City’s Health Department"

From The Crime Report, "The Redemption of Teen Killers: Why ‘Miller’s Children’ Deserved Their Second Chance"

From Forbes, "NAACP, ACLU And Allies Demand Congress Pass Marijuana Bill With Justice Focus"

From Governing, "America Has a Health-Care Crisis — in Prisons"

From The Hill, "Criminal justice reform should extend to student financial aid"

From the Los Angeles Times, "Once tough-on-crime prosecutors now push progressive reforms"

From the New York Times, “A Relentless Jailhouse Lawyer Propels a Case to the Supreme Court

From Reuters, "U.S. federal death penalty protocol faces fresh legal scrutiny"

From the San Francisco Chronicle, "First inmate released under new California resentencing law"

From Simple Justice, "Kopf: A 'Second Look' Option Might Lessen Federal Sentencing Disparity"

From the Washington Post, "Edward Simms is living proof that defenders of mandatory minimum sentences are wrong"

As always, I welcome reader input on criminal justice stories and reform commentaries here or elsewhere that should be getting more (or less) attention here and elsewhere.

August 8, 2019 in Recommended reading | Permalink | Comments (0)

August 7, 2019

"A Partial Fix of a Broken Guideline: A Proposed Amendment to Section 2G2.2 of the United States Sentencing Guidelines"

The title of this post is the title of this notable new article now available via SSRN and authored by Brent Evan Newton. Here is its abstract:

Except for the federal criminal penalties for crack cocaine offenses, no specific non-capital penalty structure has been more widely criticized than USSG § 2G2.2 and the corresponding federal penal statutes, 18 U.S.C. §§ 2252 & 2252A. Together, those provisions govern penalties for child pornography offenses other than those involving actual production of child pornography.  Indeed, one of the leading sources of criticism has been the United States Sentencing Commission, whose 300-plus-page report to Congress in December 2012 made a compelling case for changing both the guideline and, to a lesser degree, the statutes.

The current sentencing guideline for non-production offenses is fundamentally broken, as evidenced by the fact that only 28.4 percent of defendants sentenced under section 2G2.2 receive within-range sentences and 69.1 percent of defendants receive downward variances or departures (unrelated to their substantial assistance or participation in a fast-track program).  The vast majority of child pornography defendants receive downward variances from their guideline ranges based on sentencing judges’ subjective senses of what appropriate sentences should be.  Because judges have no meaningful national benchmark from which to render sentencing decisions, widespread sentencing disparities exist -- in conflict with the central purpose of the Sentencing Reform Act of 1984. In addition, because the current guideline fails to offer any meaningful benchmark, federal prosecutors around the country engage in a wide variety of different charging and plea-bargain practices resulting in significant sentencing disparities among similar defendants.

Although the best solution to the problems with the current child pornography sentencing scheme would require congressional intervention, Congress appears unwilling to make any changes in the statutory handcuffs currently on the Commission.  Therefore, I have set forth a detailed proposed amendment to section 2G2.2 that could be adopted by the Commission without congressional authorization.  If the Commission does not amend the guideline, then my proposal provides a detailed roadmap for federal district judges to “vary” from the current, broken guideline pursuant to the authority granted by the Supreme Court in United States v. Booker and Kimbrough v. United States.

August 7, 2019 in Booker in district courts, Federal Sentencing Guidelines, Sex Offender Sentencing, Who Sentences | Permalink | Comments (1)

Has anyone been tracking the record of Trump judges on sentencing and other criminal justice issues?

The question in the title of this post is prompted in part by this new NPR article headlined "Trump's Impact On Federal Courts: Judicial Nominees By The Numbers." Here is an excerpt:

President Trump can be a master of distraction, but when it comes to judges, his administration has demonstrated steely discipline. In the 2.5 years that Trump has been in office, his administration has appointed nearly 1 in 4 of the nation's federal appeals court judges and 1 in 7 of its district court judges....

Legal observers say Trump and his Republican allies in the Senate have placed an unmistakable stamp on the federal judiciary, not only in ideology but in identity.

"What stands out to me is that President Trump is deliberately nominating the least diverse class of judicial nominees that we have seen in modern history," said Kristine Lucius, executive vice president for policy at the Leadership Conference on Civil and Human Rights. "It is stunning to me that 2 1/2 years in, he has not nominated a single African American or a single Latinx to the appellate courts."

In all, around 70% of Trump's judicial appointees are white men....

Russell Wheeler, a visiting fellow at the Brookings Institution, said Trump has mostly replaced judges appointed by Republican presidents with his own candidates, adding to conservative majorities in courts based in the South and narrowing the margin in the 9th Circuit in San Francisco — a frequent target of the president's attacks.

All the same, Wheeler said, the new judges of the Trump era are generally more conservative than the older ones winding down their careers. "When you replace a 70-year-old George W. Bush appointee who is slightly to the right of center with a 45-year-old movement conservative, obviously you're not trading apples for apples," Wheeler said.

On the Supreme Court, the record of Trump Justices on sentencing and other criminal justice issues has been interesting and intricate and not easily summarized.  I suspect the same is true for all the Trump judges on the district and circuit courts, especially because the impact of "movement conservatives" on sentencing and other criminal justice issues can be quite unpredictable.

August 7, 2019 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (2)

August 6, 2019

"The short-run effects of marijuana dispensary openings on local crime"

The title of this post is the title of this notable new empirical article authored by Jesse Burkhardt and Chris Goemans. Here is its abstract:

The recent legalization of marijuana in several states has led to increased public interest regarding the effect of legalization on crime.  Yet, there is limited empirical evidence relating the legalization of marijuana use and distribution to criminal activity.  This paper uses a difference-in-differences design to estimate the effect of marijuana dispensary openings on local crime rates in Denver, Colorado. 

We find that the opening of dispensaries actually decreases violent crime rates in above median income neighborhoods, an important finding in light of increased political debate surrounding legalization.  We also find robust evidence that non-marijuana drug-related crimes decrease within a half-mile of new dispensaries but do not simultaneously increase within a half-mile to mile of new dispensaries, with one possible explanation being that legal marijuana sales and hard drug sales are local substitutes.  Finally, in line with previous research, we find that vehicle break-ins increase up to a mile away from new dispensaries.

Cross-posted at Marijuana Law, Policy and Reform

August 6, 2019 in Marijuana Legalization in the States, National and State Crime Data | Permalink | Comments (0)

Notable Govs make the case for pressing forward with additional criminal justice reforms

Jerry Brown, former governor of California, and Matt Bevin, current governor of Kentucky, have this new Hill commentary under the headline "The US has barely scratched the surface on criminal justice reform."  Here are excerpts:

In these highly polarized times, our nation is awash in loud and public fights about immigration, health care, global warming, and other daunting challenges. Criminal justice used to be on that list of divisive topics.  But now Americans of nearly every political and demographic perspective agree — we need a public safety approach that works better and costs less.

As current and former governors who prioritize greater justice and safety, we believe this historic moment carries great opportunity, but even greater responsibility.  We must ensure that our momentum does not slip away, and we must push forward with nonpartisan purpose toward a criminal justice system worthy of our nation.

Our states of Kentucky and California are very different.  But we and other leaders across the country have coalesced around the principle that while people must be held accountable for breaking our laws, we cannot build our way to a safer society with ever-more prisons....

But while several dozen states and the federal government have made laudable progress, we’ve barely scratched the surface of all that must be done.  Taxpayers spend a quarter trillion dollars per year to arrest, try, sentence, and supervise the 7 million adults behind bars or on probation and parole.  Yet return-to-prison rates remain high, too many communities struggle with violence and substance abuse, and new technologies are increasing our vulnerability to cybercrime and other threats.

Fortunately, we know a lot more about what works in criminal justice than we did 40 years ago, when our nation began an incarceration boom that has exacted a heavy toll, in both fiscal and human costs.  While there are no magic bullets, research has spotlighted effective strategies to stop the cycle of reoffending and better equip people leaving prison to resume stable lives....

We’ve witnessed the power of shifting political winds, and we know that, particularly with criminal justice reform, we must double down on our efforts and guard against backward-looking proposals that are borne of emotion or recycle failed ideas of the past.

August 6, 2019 in Elections and sentencing issues in political debates, Reentry and community supervision, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

August 5, 2019

Are pretrial risk assessment algorithms really part of "socialist agendas that are sweeping this country"?

The question in the title of this post is prompted by this curious new Fox News commentary authored by US Senator John Kennedy under the headline "Bail, bond decisions are being made today with algorithms -- That puts your safety at risk."  Here are excerpts:

Jurisdictions across the U.S. are snapping up algorithms as tools to help judges make bail and bond decisions. They’re being sold as race- and gender-neutral assessments that allow judges to use science in determining whether someone will behave if released from jail pending trial.

Really, they’re a dangerous collision of the poorly vetted cost cuts and socialist agendas that are sweeping this country.

The algorithms scare me because they’re being implemented for the same reason as the early release programs that are getting people killed.  The goal isn’t to protect public safety.  It’s to empty jail cells and release dangerous criminals on their own recognizance.

As a member of the Senate Judiciary Committee, I’m concerned about the recklessness of public policy that endangers people’s lives, especially in minority communities, where crime often is such a scourge.  These algorithms -- called pretrial assessment release tools -- are the equivalent of using a Magic 8 ball in courtrooms.  The results are disastrous to communities and great for criminals.

In my home state of Louisiana, New Orleans decided a few years ago to reduce the jail population. City officials started using a pretrial assessment release tool that was available for free from a nonprofit founded by a former hedge fund manager who became a billionaire through risky investments that turned into gold.

Do you know what happens when you allow a hedge fund manager to restructure your criminal justice system? You get a model that’s fraught with risk.

The new tool comes into play when someone is arrested on a felony charge, such as robbery or rape. The tool comes up with a score of one to five based on the defendant’s age, criminal history and several other factors. A “one” is considered a low risk to public safety. A “five” is considered justification for maximum supervision.

You would think that a risk level of “one” would be limited to people who jaywalk or shoplift. You would be wrong. In practice, a “five” apparently is reserved for people who kill busloads of nuns.  Ordinary thugs get a “one” as long as they promise that they’ll spend all their time in church and attend every court appearance.  They don’t have to regularly check in with a court officer or even call once a month....

The Metropolitan Crime Commission found that 37.6% of the people arrested for violent felonies in New Orleans during the third and fourth quarters of 2018 received the lowest risk level of “one.”  That included more than 32% of the people arrested for homicide and 36.5% of the people arrested for rape.

Algorithms diminish public safety in this country.  They ask us to pretend that lengthy arrest records and violent crimes don’t matter. They ask police to scoop up the bad guys only for the courts to immediately release them.  They turn us into a bad joke.

The use of risk assessment algorithms, whether pretrial or at sentencing or in the prison system, is an important modern criminal justice development that justifies much scrutiny and can be criticized on many grounds. But this commentary by Senator Kennedy reads a bit like a parody.

For starters, one of the main reasons risk assessments are appealing is because judicial decision-making without the help of data can itself often seem a lot like "Magic 8 ball" decision-making.  Moreover, all sound risk-assessment tools factor in arrest records and violent crimes, so they cannot properly be attacked for pretending that these past acts "don’t matter."  And, most amusingly, I cannot  quite fathom how efforts to make criminal justice decisions based on useful and relevant data amounts to part of "socialist agendas." 

I would welcome Senator Kennedy encouraging the Senate Judiciary Committee to hold hearings about the pros and cons of using risk assessment algorithms in modern criminal justice systems.  But, since he suggests giving judges more information is part of "socialist agendas that are sweeping this country," I worry he might think informing Senators more about these matters also somehow has mysterious sinister socialist undertones.

August 5, 2019 in Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Technocorrections, Who Sentences | Permalink | Comments (6)

“MAGA Bomber” Cesar Sayoc sentenced to 20 years in prison despite LWOP guideline range

As reported in this CNBC piece, "'MAGA Bomber' Cesar Sayoc was sentenced to 20 years in prison on Monday for sending 16 mail bombs to 13 people around the United States last year, including leading critics of President Donald Trump such as former President Barack Obama, ex-Vice President Joe Biden, former Secretary of State Hillary Clinton, actor Robert De Niro and financier George Soros." Here is more about this high-profile sentencing:

“I am beyond so very sorry for what I did,” Sayoc said before he was sentenced in U.S. District Court in Manhattan by Judge Jed Rakoff, according to the Courthouse News service.

“Now that I am a sober man, I know that I a very sick man,” Sayoc reportedly said. “I wish more than anything that I could turn back time and take back what I did ... I feel the pain and suffering of these victims.”

But Rakoff said, “The nature and cirumstances of the instant offenses are, by any measure, horrendous.”

“While none of the devices exploded ... at the very least they were intended to strike fear and terror into the minds of their victims and to intimidate those victims, mostly prominent political figures, from exercising their freedom.” Rakoff noted that Sayoc, even if he proves to be a model prison, “will be about 75 years old before he can be released.”

“No one can pretend this is not, in real terms, substantial punishment; but in the Court’s view, it is no more, and no less, than [what] he deserves,” Rakoff said.

Sayoc, a 57-year-old Florida resident whose own lawyers called him “a Donald Trump super-fan,” pleaded guilty on March 21 to 65 criminal counts, which included using weapons of mass destruction and illegal mailing of explosives with intent to kill or injure. Prosecutors said Sayoc’s crimes amounts to a “domestic terrorist attack.”

Prosecutors had asked Rakoff to sentence the former exotic dancer and steroid abuser to life in prison for the mail bombing spree....

None of the home-made bombs exploded, and “would not have functioned as designed,” according to prosecutors. But they noted that Sayoc packed PVC pipes with explosive powder and glass shards, along with pool chemicals to “increase the chances of burning the skin of” his targets....

Sayoc’s lawyers had asked that he be sentenced to just 10 years in prison, the mandatory minimum for his crimes. In their own sentencing submission, defense lawyers wrote that, “a series of traumatic events pushed Cesar Sayoc further and further into the margins of society.”

Valuably, Judge Rakoff authored this nine-page sentencing opinion explaining why he found the sentencing recommendations of the prosecution and defense not quite right and why he settled on a 20-year prison term for these crimes.

August 5, 2019 in Booker in district courts, Celebrity sentencings, Purposes of Punishment and Sentencing | Permalink | Comments (4)

Expressing concern about potential capital distraction from bipartisan criminal justice reform momentum

Laura Arnold has this notable new commentary at Law360 under the headline "Death Penalty Return May Undermine Criminal Justice Reform."  Here are excerpts:

Reasonable minds vociferously differ on, and will continue to debate, the morality of the death penalty. At this critical juncture and moment of opportunity for criminal justice, we must resist the urge to allow this debate to derail large-scale reform.

From a public policy, public safety and cost perspective, the federal death penalty pales in comparison to larger-scale reforms that we could enact today — areas where the White House could add to its bipartisan accomplishments.

There are roughly 171,000 convicted inmates in federal facilities and yet [AG Barr's restarting of executions] decision wastes precious political capital and national attention on a mere 62. Even if we end executions, those 62 will likely never set foot outside a prison for the rest of their lives. Their hearts will continue to beat, but their exile from the living world is immutable.

Meanwhile, there is much greater value in getting the system right for those among the 171,000 federal inmates and nearly 2 million in state and local facilities who have a chance of getting out. Those are the people helped by the First Step Act, and that is where we should continue to focus our efforts....

The death penalty raises a confluence of serious concerns that aren’t easily solved, ranging from constitutional questions to sheer public expense. No wonder that jurisdictions from coast to coast have stopped pursuing capital punishment. The number of death sentences declined by 50% between 2009 and 2015. In fact, only 16 counties out of 3,143 imposed five or more death sentences between 2010 and 2015.

Many advocates want to lower that number to zero. It’s a debate worth having, both at the federal level and in every state. Jurisdictions should, and will, make their own determinations, as they do on numerous issues of policy relevance.

But now is not the time to stoke this fight. We should focus all our bipartisan efforts on positively affecting the more than 2 million lives currently under incarceration nationwide, and on systemic improvements that will result in fewer people facing incarceration in the first place.

The Trump administration has demonstrated a passion for this mission, and a keen skill at building momentum amid an otherwise chaotic political atmosphere. Let’s not lose that momentum by derailing the conversation.

I very much like the message and spirit of this commentary, and long-time readers know I have long discussed in various settings the various problems I see from advocates and others giving so much attention to capital cases. (Some examples of my writings in this vein include A Capital Waste of Time? Examining the Supreme Court’s “Culture of Death,” 34 OHIO N.U. L. REV. 861 (2008) (available here) and Reorienting Progressive Perspectives for Twenty-First Century Punishment Realities, 3 Harv. L.& Pol'y Rev. (2008) (available here).)

But, at the same time, I am not sure AG Barr's decision to try to kick-start the death penalty necessarily will or should have to negatively impact other bipartisan criminal justice reform efforts.  Though this may be wishful thinking, one might hope that the recent death penalty move by the Trump Administration may help mollify the "tough-and-tougher" crowd (likely Senators Cotton and Kennedy and certain pundits) who always pose challenges for further federal reforms.  

In months ahead, robust engagement with the federal death penalty will be taking place in federal courts, and I think it somewhat unpredictable whether and how this litigation will impact broader criminal justice reform politics.  But this commentary rightly flags an issue worth watching in the months and years ahead.

August 5, 2019 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (1)

August 4, 2019

"Charging As Sentencing"

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

This Article connects two uncontroversial claims to support a novel and momentous thesis.  The first familiar claim is descriptive.  The most important determinant of an offender’s sentence is the discretionary selection of charges before guilty plea or trial.  The second familiar claim is doctrinal.  The Supreme Court has held that procedural due process requires that the discretionary selection of a sentence from within a statutory range be made by a neutral tribunal after notice and hearing.  Together, these humdrum observations imply that statutes delegating sentencing power to prosecutors — so-called “mandatory” minimum sentences -- are unconstitutional.  Part I presents the descriptive claim that charging, in many cases, simply is sentencing.  Part I also reviews the Supreme Court’s jurisprudence rejecting constitutional challenges to prosecutorial discretion, decisions premised on a statutory baseline, the long-discredited right-privilege distinction.  Part II reviews the Court’s sentencing cases.  These decisions rejected the right-privilege distinction by substituting a procedural for a statutory baseline.  These cases hold that procedural due process permits legislative delegation of sentencing discretion only to neutral tribunals.

The sentencing cases condemn sentencing by prosecutors as a violation of procedural due process.  Yet the Court has sustained prosecutorial charging discretion against multiple challenges, albeit not the one raised by this Article.  There are at least four possible resolutions of the conflict in the cases. Courts might: (1) deny the equation of charging and sentencing, because the effect of charging on sentencing is contingent; (2) bless the inconsistency in the cases by appealing to history; (3) regulate charging decisions via administrative law, or (4) declare prosecutorial discretion to bring charges carrying mandatory minimum penalties unconstitutional.  The rest of the Article argues against options (1), (2) and (3), and in favor of option (4).  Replies are offered to objections based on pragmatism or on politics.

August 4, 2019 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)