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January 26, 2019

Latest discussion of fixing timing problems with expansion of good-time credit in the FIRST STEP Act

As noted in this post a couple of weeks ago, the expanded good time credits provision in the FIRST STEP Act, which many expected to be applied immediately, problematically got tucked within a section of the Act that is to become effective only when the Attorney General has created "a risk and needs assessment system" later this year.  Now the Washington Examiner has this new article, headlined Drafting error stalls inmate release under Trump plan," about the problem and efforts afoot to address it.  Here are excerpts:

Thousands of prisoners expecting to go home under the First Step Act are stuck behind bars indefinitely due to an apparent drafting error, frustrating families and leaving policy advocates pushing for a White House fix.

The bill, President Trump’s biggest bipartisan policy achievement, passed in December, but a key provision retroactively expanding "good time" credit landed in a section that could delay implementation by seven months.

Three sources who work closely with lawmakers and administration officials say it’s their understanding that the White House is looking for an administrative fix.

White House Counsel Pat Cipollone met with advocates in mid-January to discuss the issue, which is affecting roughly 4,000 people who expected to go home immediately. “I think [Cipollone] really understood the intent,” said a person with direct knowledge of the meeting. “I think they understood this was a key provision. … This was a key part of [legislative] negotiations.”

Present at the meeting were David Safavian of the American Conservative Union and Jessica Sloan of #Cut50, a bipartisan activist group that aims to lower incarceration levels in all 50 states....

The bill expands days off for good behavior from 47 to 54 for each year served. For people serving decades, seven additional days means release months early. Most provisions were not written to apply retroactively. The "good time" expansion was an exception, as was a provision allowing crack cocaine convicts to be resentenced. The crack change was implemented quickly.

It became clear, however, that an immediate “good time” expansion would not happen. The provision was placed in a part of the law that created “earned time” sentence reductions, allowing early transfer to a halfway house or home detention after anti-recidivism classes. The “earned time” provision allows the Justice Department up to 210 days to set up a risk assessment system, which will judge the requirements to participate.

“I think it was just an oversight,” said Kevin Ring, president of Families Against Mandatory Minimums. “People were focused on making sure the good time got increased and that it was retroactive. It ended up getting put in the section with ‘earned time.’”

A few fixes are being discussed. The easiest would be for the White House to order the Justice Department to apply the 54 days of "good time" credit immediately. Other fixes would require legislation — either a unanimous consent motion or a spending bill provision — but legislative gridlock amid a partial government shutdown makes neither likely.

“I don’t think it’s something that gets cleared up quickly,” said Sloan, who declined to comment on the White House meeting but said it’s her position that existing law allows 54 days of good time if the administration decides it does. “I’m hopeful the White House will issue some sort of directive to the DOJ, which will issue a directive to BOP, but there are a lot of administrative [steps] there,” Sloan said....

For people in prison, the delay is a major blow. “He’s ready to come home,” said Veda Ajamu, whose brother Robert Shipp, 46, has served 25 years and expected near-immediate transfer to a halfway house or home confinement, as is typical toward the end of sentences. “We’re talking now 25 years, 4 months, and 10 days for him. It makes me really sad, because I can’t do anything. For a person who's been in prison so long, that’s a hard pill to swallow,” Ajamu said.

Charles "Duke" Tanner, who has served 14 years of a 30-year sentence, does not expect to get out immediately but said other people are anxious to leave. “My cellie was all excited because he was looking at an immediate release. Some men even gave away their property because they thought they were out the door,” Turner said. “I have faith President Trump will fix this,” he added.

I have very little "faith" in anyone inside the Beltway fixing things these days, but it is encouraging that two very effective advocates had the opportunity to address the White House Counsel about potential fixes.

Prior related posts:

January 26, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Who Sentences | Permalink | Comments (2)

"Limiting Retributivism and Individual Prevention"

The title of this post is the title of this notable new book chapter authored by Christopher Slobogin now available via SSRN.  Here is its abstract:

Limiting retributivism, also known as modified desert theory, is a “mixed theory” of punishment that posits that retributive principles should set the outer bounds of a sentence, while the precise nature and duration of disposition should be designed to implement one or more independent criminal justice system goals.  This chapter focuses on a particular version of limiting retributivism, which it calls “preventive justice.”  A preventive justice regime adopts sentence ranges consistent with the offender’s desert and then relies on expert parole boards to determine the nature and duration of sentence within this range based on consideration of individual prevention goals (i.e., incapacitation, specific deterrence and rehabilitation).

The analysis of this chapter suggests that a system of relatively wide sentence ranges derived from retributive principles, in combination with short minimum sentences that are enhanced under limited circumstances by statistically-driven risk assessment and management, can alleviate many of the inherent tensions between desert and prevention, between deontology and political reality, and between the desire for community input and the allure of expertise.  If done properly, it should also significantly reduce prison populations.

January 26, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

January 25, 2019

Ohio's new governor delays first scheduled execution under his watch based on concerns about lethal-injection drugs

As reported in this local article, headlined "Gov. Mike DeWine delays killer’s execution, orders review of lethal-injection drugs," this afternoon brought some interesting news on the capital administration front from Ohio's capital. Here are the details:

Gov. Mike DeWine on Friday postponed the execution of murderer Warren Henness from Feb. 13 to Sept. 12 following a recent judicial ruling that Ohio’s lethal-injection cocktail will “very likely cause him severe pain and needless suffering.”  In a release, DeWine said that he has also directed Ohio’s prisons agency to assess the state’s current options for execution drugs and examine possible alternative drugs.

On Jan. 15, federal magistrate judge Michael Merz ruled that the three drugs Ohio has used since last year for executions — midazolam (as a sedative), a paralytic drug, and potassium chloride (to stop the heart) — are likely unconstitutionally “cruel and unusual punishment.” Merz cited testimony from medical witnesses that high doses of midazolam and other drugs cause pulmonary edema, causing a painful drowning sensation comparable to the torture tactic of waterboarding.

However, Merz allowed Henness’ execution to proceed because, under a 2015 U.S. Supreme Court ruling, death row inmates challenging how they will be put to death must show that an alternative means of execution is “available,” “feasible,” and can be “readily implemented.”

Henness’ proposed alternatives -- drinking secobarbital in a sweet liquid such as apple juice, or an oral injection of four drugs – were rejected by Merz on the grounds that neither method has ever been used to carry out an execution, they would take more than an hour to kill Henness, and that there isn’t a proven way to obtain the drugs.

DeWine, in his statement, noted that Henness has appealed Merz’s ruling, but the governor said he delayed the execution because of the magistrate judge’s opinion.

David Stebbins, Henness’ attorney, said in a statement Friday: “We commend Governor DeWine for his leadership and for ensuring the justice system operates humanely in Ohio.”

Henness was convicted of murdering his drug-abuse counselor, Richard Myers, in 1992.  Prosecutors said Henness kidnapped Myers, shot him five times at an abandoned water-treatment plant, severed Myers’ finger to get his wedding ring, then drove around in Myers’ car for several days forging his checks and using his credit cards to get cash and buy crack cocaine....

Ohio, like many other states with the death penalty, has struggled to obtain lethal-injection drugs since European pharmaceutical companies cut off further sales on moral and legal grounds.  After the controversial execution of killer Dennis McGuire in January 2014, Ohio imposed a three-year moratorium on executions as it worked to find a new lethal-injection protocol — and suppliers willing to sell the state the drugs.

Since the moratorium was lifted in 2017, Ohio has executed three people using the current three-drug cocktail — all without complications or unexpected problems with the drugs.  However, the execution of a fourth condemned inmate, Alva Campbell, was postponed after several unsuccessful attempts to insert an IV.  Campbell died in his cell a few months later.

January 25, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Will the FIRST STEP Act's crack retroactivity provisions result in many reduced sentences beyond those serving mandatory-minimum terms?

The question in the title of this post is prompted by a notable "Order Reducing Sentence" entered earlier this week in US v. Tucker, No. 3:00-cr-00246-2 (S.D. Iowa, Jan. 23, 2019) (available for download below). A little background is need to explain the question and what seems especially notable about this Tucker order.

As many readers know, Section 404 of the enacted version of the FIRST STEP Act retroactively applies the Fair Sentencing Act of 2010. I have assumed this section entailed only that (many) federal prisoners still serving crazy-long mandatory minimum sentences for crack offenses could get their sentences reduced.  I figured the retroactivity benefits would be confined to those serving crack mandatory-minimum terms, rather than guideline sentences, because the US Sentencing Commission had already reduced the crack guidelines and made those reduced guidelines retroactive.

But, interestingly, though Logan Tucker was convicted and sentenced in 2001 for a crack offense, his original sentence of of nearly 22 years (262 months) was driven not by a statutory mandatory minimum provision, but rather by the career-offender provisions of the (then mandatory) guidelines.  Though Tucker's sentence for a crack offense was driven by the guidelines rather than a statutory mandatory minimum provision, he was not previously eligible for a reduced sentence based on retroactive crack guideline reductions because of his career offender status. 

But now, thanks to the FIRST STEP Act, Tucker can benefit according to the analysis of US District Judge Robert Pratt.  Specifically, because Tucker was originally sentenced under a "covered offense" and also because the Fair Sentencing Act the lowered the statutory maximum he would have faced which, in turn, lowered his guideline level under the career-offender guideline, Judge Pratt concludes he can and should impose a reduced sentence for Tucker set at "188 months, the low end of the new Guidelines Range" (which, in turn, entails "a sentence reduction of seventy-four months, more than enough to warrant immediate release").

In addition to the notable outcome, I think it important and notable that federal prosecutors in this case conceded that the FIRST STEP Act authorized Judge Pratt to impose a reduced sentence (though they did urge Judge Pratt to exercise his discretion not to reduce Tucker's original sentence).  In other words, federal prosecutors in this case did not claim that FIRST STEP retroactivity benefits must be confined only to those serving crack mandatory-minimum terms, rather than guideline sentences.

So, in addition to spotlighting this interesting echo of the FIRST STEP Act's crack retroactivity provisions, I am eager to hear if lots of other courts are now considering sentence reductions for lots of other crack defendants whose terms are not directly tethered to crack mandatory-minimum terms.  I would guess that this kind of "career offender" situation may be most likely to arise, but perhaps there are other important ways in which persons sentenced to long crack terms who missed prior retroactivity opportunities now can benefit.

Download Tucker sentence reduction order 07712866067  

UPDATEIt dawned on me after I did this post that the high-profile case of Matthew Charles, who secured release just a few days after the enactment of the FIRST STEP Act, is another example of a defendant sentenced under the career offender guideline getting retroactive relief.  Thus this Tucker ruling is not itself ground-breaking, but it further highlights the sorts of folks now able to benefit from a key sentencing provision that was added to the original prison-reform-only version of FIRST STEP.

January 25, 2019 in FIRST STEP Act and its implementation, New crack statute and the FSA's impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Timely questions on enduringly important topics via The Crime Report

I have praised and promoted work done over at The Crime Report for many years, and the site remains a daily must-read for criminal justice fans.  And in the last few days, TCR has had two new pieces headlined with two questions that are timely and enduring.  Here are the headlines, links and brief excerpts:

"Can the U.S. Abolish Life Sentences?" (Q&A with Ashley Nellis)

TCR: You write, “Perhaps the most glaring omission of relevant data was the failure of the Bureau of Justice Statistics (BJS), the well-regarded research arm of the Department of Justice, to document the scale of life imprisonment.” Do you think this omission was on purpose or by accident?  And why?

Nellis: I think it’s not on purpose, there just a lack of resources in the research arms.  There’s also a lack of general interest from the public, so there was no incentive to document the expansion of life sentences. We shouldn’t be surprised that there hasn’t been data on the expansion because it goes along with laws and policies of the 1990s.

[The BJS] is not a political entity, but it seems to be. If you pass legislation at federal level that is bound to increase your incarcerated population… you should probably document the impact of those policies.  If you pass mandatory minimums with the elimination of parole, it seems wise to document how many people go to prison because you did that. Once a lot of the public sees the dramatic growth of life sentences— nearly five-fold increase over time — then they ask “why did nobody notice this before?” The answer is because nobody was recording it.

"Do We Really Need Probation and Parole?" (commentary by Vincent Schiraldi): 

Although “mass supervision” on probation or parole has not yet garnered the attention of “mass incarceration,” its impact is no small matter.  There are 4.5 million people under community supervision in America, twice as many as are incarcerated, a figure that amounts to more than the population in half of all U.S. states.  About four in ten people entering America’s prisons and jails each year are under supervision.  Many of those are incarcerated, not for committing new crimes, but for breaking a wide array of supervision rules.

January 25, 2019 in Criminal Sentences Alternatives, Data on sentencing, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (1)

January 24, 2019

En banc Fourth Circuit, splitting 8-7, finds key clause of § 924(c) mandatory-minimum statute unconstitutionally vague

A helpful reader made sure I did not miss the Fourth Circuit delivery today of over 100 pages of debate over vagueness challenges to the application of “crime of violence” as set forth in 18 U.S.C. § 924(c)(3)(B) in the form of an en banc ruling in US v. Simms, No. 15-4640 (4th Cir. Jan. 24, 2019) (available here). Here is the start of the majority opinion:

Joseph Decore Simms was convicted of brandishing a firearm in connection with a “crime of violence,” as defined in 18 U.S.C. § 924(c)(3)(B).  He appeals, contending that § 924(c)(3)(B), as long understood, is unconstitutionally vague. The Government concedes this point but urges us to abandon the settled meaning of the statute and employ a new definition of “crime of violence.”

We cannot do so. Neither the statutory language nor controlling precedent offer any support for the Government’s proposed reinterpretation.  Rather, the text and structure of § 924(c)(3)(B) plainly set forth a definition of “crime of violence” that fails to comport with due process.  Accordingly, we reverse and remand for further proceedings consistent with this opinion.

The majority needs about 40 pages to explain its conclusions, and then we get a lengthy concurrence and a series of dissents. Judge Wilkinson's dissent has this notable starting paragraph:

Once upon a time, now seemingly a geologic age ago, the federal judiciary appeared sold on the inherent advantages that trial courts and trial juries bring to fact-finding in our criminal justice system.  No longer.  My colleagues in the majority ably demonstrate that application of the categorical approach to 18 U.S.C. § 924(c)(3)(B) saddles that statute with a fatal constitutional infirmity.  My colleagues in dissent — whom I join — ably demonstrate why that infirmity need not exist; the better reading of the statute avoids it by applying the case-specific approach in place of the categorical.  I write separately to further explain how application of the categorical approach here is part of a troubling trend: the gratuitous conversion of issues of fact into questions of law; the usurpation of authority by appellate courts and the resultant atrophy of trial courts’ fact-finding function.

Notably, the issue in this case is now before SCOTUS after its grant three weeks ago in US v. Davis.  So, if you are not content with 100 pages on this issue today (coming a few months after the Eleventh Circuit gave us 150 pages coming out the other way), you can look forward to full SCOTUS briefing and more in the months ahead.

January 24, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences | Permalink | Comments (1)

US Sentencing Commission releases big new report on "Recidivism Among Federal Violent Offenders"

Cover_recidivism-violenceThe US Sentencing Commission has just released its fifth major report in a series reviewing the recidivism rates of federal offenders released back in 2005.  This 74-page report is titled simply "Recidivism Among Federal Violent Offenders.This USSC webpage provides links, and this "Report Summary" and "Key Findings":

Report Summary

Recidivism Among Federal Violent Offenders is the fifth report in a series examining a group of 25,431 federal offenders who were released from federal custody in calendar year 2005. This report analyzes the recidivism rates of federal offenders who engaged in violent criminal activity. The study identifies two groups of violent offenders:

  • "Violent instant offenders" who engaged in violent criminal conduct as part of their instant federal offense; and 
  • "Violent prior offenders" who were not categorized as violent offenders based on their instant federal offense, but who had been arrested for a violent offense in their past.

Taken together, these 10,004 “violent offenders” are analyzed in comparison to the remaining 15,427 “non-violent offenders” released from federal custody in calendar year 2005.  (Published January 24, 2019)

Key Findings

Consistent with the Commission’s previous research, this report shows that offenders who engaged in violent criminal activity — whether during the instant federal offense or as part of prior criminal conduct — generally recidivated at a higher rate, more quickly, and for more serious crimes than non-violent offenders.

Key findings of the Commission’s study of recidivism among violent offenders are: 

  • A substantial number of the 25,431 U.S. offenders released in calendar year 2005 — 39.3 percent — engaged in violent criminal activity as part of their instant federal offense or prior criminal conduct.

  • Violent offenders recidivated at a higher rate than non-violent offenders.  Over 60 percent (63.8%) of violent offenders recidivated by being rearrested for a new crime or for a violation of supervision conditions.  This compares to less than 40 percent (39.8%) of non-violent offenders who were rearrested during the follow-up period.

  • Violent offenders recidivated more quickly than non-violent offenders.  Of those violent offenders who recidivated, the median time from release to the first recidivism event was 18 months.  Comparatively, the median time from release to the first recidivism event for non-violent offenders was 24 months.

  • Violent offenders recidivated for more serious crimes than non-violent offenders. Over one-fourth (28.4%) of the violent offenders who recidivated had assault as their most serious new charge, followed by public order crimes (15.6%) and drug trafficking (11.1%).  Of the non-violent offenders who recidivated, public order crimes were the most common new charge (20.9%), followed by assault (17.9%) and drug trafficking (12.0%).

  • Violent offenders have higher recidivism rates than non-violent offenders in every Criminal History Category, however, the difference in recidivism rates between violent and non-violent offenders is most pronounced in the lower Criminal History Categories and among offenders designated as career offenders or armed career criminals.

  • Recidivism rates for violent offenders in every age group at the time of release from custody were higher than the rates for non-violent offenders.  Violent offenders recidivated at twice the rate of non-violent offenders among those released after age 40.

  • Analyzed separately, violent instant offenders and violent prior offenders both recidivated at a higher rate and for more serious crimes than non-violent offenders.

January 24, 2019 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Reentry and community supervision | Permalink | Comments (3)

January 23, 2019

Parole and probation reforms now the focus for powerful players

A couple of days ago, Amy Solomon of the Laura and John Arnold Foundation and Jake Horowitz of The Pew Charitable Trusts’ public safety performance project together penned this notable Hill commentary headlined "US needs bold reforms to transform probation and parole." Here are excerpts:

The scale of American incarceration has been in the news recently, with growing bipartisan agreement that this challenge needs to be addressed. Yet a related issue continues to operate below the radar: The number of people on probation or parole supervision in the United States, which has tripled in the past three decades.

Although it might seem counterintuitive, this rapid growth in supervision can serve to increase jail and prison populations — an outcome that should concern policymakers and taxpayers alike. While about half of the nearly 4.5 million people on probation or parole will successfully complete their sentences, onerous supervision requirements can become a tripwire, resulting in incarceration. In 2016, for example, 350,000 people exited supervision by entering a jail or prison — often for violating rules such as failing a drug test or missing a required meeting, rather than for a new criminal offense.

In an effort to transform community supervision and shift the focus from punishing failure to promoting success, the Laura and John Arnold Foundation and The Pew Charitable Trusts recently announced an initiative to work with leading experts on community supervision policy, practitioners at the state and local levels, and advocates and stakeholders such as victims’ family members, to adopt evidence-backed reforms.

Over the past two decades, research has shown that current probation and parole practices often deliver less-than-optimal results. We know, for example, that supervision with a large number of conditions can interfere with an individual’s progress of reintegrating into the community. Some jurisdictions have responded to this research. Since the community supervision population reached its peak in 2007, both the crime rate and the rate of community supervision have gone down in 37 states. Texas and South Carolina, among other states, have had declines in crime and supervision of 20 percent or more.

Yet despite the growing body of evidence that supervision can be counterproductive, too many jurisdictions continue to emphasize surveillance and impose standard, one-size-fits-all rules, rather than utilizing an integrated approach with treatment and conditions tailored to the individual. These rules include frequent in-person reporting requirements, which often conflict with job or family responsibilities, and costly fines and fees that disproportionately affect poor people, impeding their ability to rebuild their lives....

The good news is that many states have adopted policy changes aimed at shrinking the number of people on supervision, reducing revocations for technical violations, and investing in community-based treatment. But there’s a long way to go, and we must help states and supervision agencies adopt even bolder reforms.

A new report by our two organizations shows that a smaller correctional footprint and less crime can go hand-in-hand. Supervision for the 21st century will require that probation and parole agencies boost the public safety value of community corrections. That means addressing areas that support reintegration such as strengthening family ties and connections to the community, improving workforce development, and increasing access to drug treatment, as well as repairing the harm inflicted on victims.

On theme, today come the news that a group of celebrities and business leaders have formed a new organization, the REFORM Alliance, to work on these issues. This NBC News piece, headlined "Meek Mill, Jay-Z headline alliance to reform U.S. parole, probation laws," provides these details:

Sports, entertainment and business leaders announced the launch of an organization aimed at reforming the United States’ criminal justice system. Meek Mill and Jay-Z are among the group of leaders who pledged approximately $50 million to create the Reform Alliance.  Its mission is to drastically reduce the number of people living under unjust parole and probation sentences, “while keeping communities safe by changing laws and public opinion.”

Other founding partners include Philadelphia 76ers co-owner Michael Rubin; Kraft CEO and New England Patriots owner Robert Kraft; Brooklyn Nets co-owner Clara Wu Tsai; Vista Equity Partners founder Robert F. Smith; Galaxy Digital founder Michael E. Novogratz; and Third Point LLC founder Daniel S. Loeb. CNN host and activist Van Jones will serve as CEO.

In an interview with NBC News’ Lester Holt, Mill said he hopes the Reform Alliance will shed light on the issues within the criminal justice system. “This is not us going against the system, this is us trying to fix the system,” the rapper said. “These problems affect America, they affect families, they affect taxpayers. ... I hope we bring real change to help fix the problem.”

January 23, 2019 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

"Mass Incarceration Paradigm Shift?: Convergence in an Age of Divergence"

The title of this post is the title of this notable new article just posted to SSRN and authored by Mugambi Jouet. Here is its abstract:

The peculiar harshness of modern American justice has led to a vigorous scholarly debate about the roots of mass incarceration and its divergence from humanitarian sentencing norms prevalent in other Western democracies.  Even though the United States reached virtually world-record imprisonment levels between 1983 and 2010, the Supreme Court never found a prison term “cruel and unusual punishment” under the Eighth Amendment.  By countenancing extreme punishments with no equivalent elsewhere in the West, such as life sentences for petty recidivists, the Justices’ reasoning came to exemplify the exceptional nature of American justice.  Many scholars concluded that punitiveness had become its defining norm.

Yet a quiet revolution in Eighth Amendment jurisprudence, a wave of reforms, and other social developments suggest that American penal philosophy may be inching toward norms — dignity, proportionality, legitimacy, and rehabilitation — that have checked draconian prison terms in Europe, Canada, and beyond.  In 2010, the Supreme Court began limiting the scope of life imprisonment without parole for juveniles in a series of landmark Eighth Amendment cases.  Partly drawing upon the principles in these decisions, twenty-one states have abolished life without parole categorically for juveniles, providing them more protections than under the Eighth Amendment.  The narrow focus on the differences between juveniles and adults in the aftermath of these reforms obscured American law’s increasing recognition of humanitarian norms that are hardly age-dependent — and strikingly similar to those in other Western democracies.  Historiography sheds light on why the academy has largely overlooked this relative paradigm shift.  As America faced mass incarceration of an extraordinary magnitude, research in recent decades has focused on divergence, not convergence.

This Article advances a comparative theory of punishment to analyze these developments.  In the United States and throughout the West, approaches toward punishment are impermanent social constructs, as they historically tend to fluctuate between punitive and humanitarian concerns.  Such paradigm shifts can lead to periods of international divergence or convergence in penal philosophy.  Notwithstanding the ebb and flow of penal attitudes, certain long-term trends have emerged in Western societies.  They encompass a narrowing scope of offenders eligible for the harshest sentences, a reduction in the application of these sentences, and intensifying social divides about their morality. Restrictions on lifelong imprisonment for juveniles and growing social polarization over mass incarceration in the United States may reflect this movement.  However, American justice appears particularly susceptible to unpredictable swings and backlashes.  While this state of impermanence suggests that the reform movement might reverse itself, it also demonstrates that American justice may keep converging toward humanitarian sentencing norms, which were influential in the United States before the mass incarceration era.

Two patterns regarding the broader evolution of criminal punishment ultimately stand out: cyclicality and steadiness of direction.  The patterns evoke a seismograph that regularly swings up or down despite moving steadily in a given direction.  American justice may cyclically oscillate between repressive or humanitarian aspirations; and simultaneously converge with other Western democracies in gradually limiting or abolishing the harshest punishments over the long term.

January 23, 2019 in Assessing Miller and its aftermath, Scope of Imprisonment, Sentencing around the world, Who Sentences | Permalink | Comments (0)

What arguments are being made by defendants on direct appeal seeking to benefit from the FIRST STEP Act's sentencing reforms?

In this post not long after the passage of the FIRST STEP Act, I noted that Congress directly spoke to so-called "pipeline cases" by saying expressly that defendants who have not yet been sentenced, are clearly to get the benefits of the new and lowered mandatory minimums (section 401) and would avoid stacked 924(c) charges (section 403).  But, asks a lawyer who corresponded with me recently, could there still be a way for a defendant who has been sentenced, but whose case is now on direct appeal, to also get the benefit of the FIRST STEP Act's provisions?   

I have seen a recent brief filed in the Third Circuit that argues that the FIRST STEP Act ought to apply to cases on direct appeal given the "long-standing rule" that a sentence is not final until fully reviewed on appeal.  And perhaps other are developing distinct arguments as this important issue arises presumably in dozens, if not hundreds, of cases current on direct appeal around the country.  I welcome links to or copies of filed briefs on this issue; I will add them to this post if helpful.

In addition to seeking information on pipeline litigation, I must note the broader reality that the international norm is to allow past offenders to benefit from ameliorative changes in criminal laws and punishments.  Specifically, a colleague of mine pointed me to third clause of paragraph 1 of Article 15 of the International Covenant on Civil and Political Rights: "If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby."  The United States is a party to ICCPR, but it lodged this key reservation: "because U.S. law generally applies to an offender the penalty in force at the time the offence was committed, the United States does not adhere to the third clause of paragraph 1 of article 15."

Prior related post:

January 23, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2)

FAMM writes extended letter to Prez Trump to "strongly discourage" re-nomination of Bill Otis to US Sentencing Commission

As reported in this prior post, back in March 2018 Prez Trump announced this notable slate of nominations to the US Sentencing Commission.  Though it is usually only hard-core sentencing nerds like me who pay much attention to USSC nominations, this slate of nominees, especially the nomination of Bill Otis, prompted considerable critical commentary from various sources (which I covered in posts here and here).  Perhaps in part because these nominees were controversial, the Senate never acted on them in 2018 and the nominations lapsed when the "old" Senate officially adjourned.

It is fairly common, once a new Senate is in place, for a President to simply renominate many past nominees who were not acted upon by a prior Senate.  The folks at FAMM, however, are now actively advocating that Prez Trump not follow this tradition in the case of Bill Otis.  Specifically, this new FAMM press release reports that "FAMM sent a letter to President Donald J. Trump discouraging the re-nomination of William Otis to the U.S. Sentencing Commission."  Here are some passages from the start and end of the four-page letter, which is authored by FAMM President Kevin Ring:

I am writing to strongly discourage you from nominating William Otis to serve on the U.S. Sentencing Commission. Mr. Otis’s long and controversial record, marked by hostility to evidence-based criminal justice reform, contradicts your administration’s leadership in passing the First Step Act....

Given these roles the Commission is expected to play, it is vital that the individuals appointed to serve on the Commission approach their job with an open mind and a willingness to consider fully all of the data and evidence available to them.  Over the years, FAMM has disagreed with the policy views held by nominees to the Commission, but we did not oppose their confirmation because we believe that, once confirmed, they would be persuaded and guided by data and evidence.

The very extensive public record of Mr. William Otis gives us no such hope.  Mr. Otis is an ideologue who seems impervious to evidence and data....

When you nominated Mr. Otis last year, FAMM broke its 27-year-long policy against taking a position on nominees to the Commission.  We believed then, and continue to believe today, that Mr. Otis would damage the Commission’s ability to tackle initiatives in a collaborative and thoughtful way.

We do not wish to silence Mr. Otis and his views. Mr. Otis certainly has a place in the public policy debate on criminal justice policy.  That place, we respectfully submit, is not one of the seven seats on the U.S. Sentencing Commission, where an openness to evidence and data is crucial.  Please do not nominate him again.

The final paragraph of this letter really struck me because of two practical ironies.  First, the decision by Prez Trump to nominate Bill Otis to the USSC actually did serve to effectively silence him as he stopped blogging at Crime & Consequences and did not make any public statements amidst all the debates over federal criminal justice reform that raged in 2018.  Second, because there are currently only two active Sentencing Commissioners and four are needed to form a quorum, the US Sentencing Commission is itself effectively silenced right now with respect to making any changes to the sentencing guidelines until at least two more members are nominated by the President and confirmed by the Senate.

Prior related posts:

January 23, 2019 in Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (1)

January 22, 2019

"Shifting how journalists talk about people in prison"

Given that I sometimes feel a bit like a journalist when doing certain types of blogging, I found interesting and effective this new Columbia Journalism Review piece (which carries a headline that I used as the title of this post).  Here are excerpts from the piece:

Prisons are often “dangerous and inhumane spaces of abuse and degradation,” Bryan Stevenson, founder and director of the Equal Justice Initiative and a law professor at NYU, says.  Yet a great deal of mainstream media prison reporting, in his view, is “misleading and dehumanizing” and “presented with no context or insight.” At a time when the flaws in our criminal justice system are well-known and well-documented, experts and advocates say a shift in how the media covers prison and people impacted by incarceration is long overdue.

It’s bad enough when the story in question is about food (which in prison is hardly known for its quality, Stevenson notes).  It’s worse, though, when it comes to more grave matters, such as murder, suicide, and abuse, which are unfortunately common in prisons.  Then, Stevenson says the impact of language is all the more damaging. “Instead of reporting in a way that exposes the tragedy of prison violence, we get headlines like, ‘Convicted rapist stabbed to death,’” he explains.  “The media presents the victim as if he could only be the crime he was convicted of. It happens all the time, over and over again.”

Last spring, for example, a Newsweek article asked, “Who were the South Carolina inmates killed in deadliest U.S. prison riot in 25 years?”  By way of answer, the story offered only the men’s names, sentences, and crimes.  “Cornelius McClary, 33, was serving 25 years for first-degree burglary and battery, firearms provision and criminal conspiracy in Williamsburg County in 2011,” read one mini-obituary. When a person is reduced to their crime at the outset, advocates say, it’s no surprise when challenges to their worth and dignity follow....

Alex Gudich, deputy director of the criminal justice reform group #cut50, gives the media some credit for tracking and exposing the failures of today’s criminal justice system, as well for helping champion reform, in the case of some outlets.  Even well-meaning stories can fall short, however, he says, by leaning on stereotypes and failing to count the perspectives of those who are incarcerated or who have been impacted by incarceration.

Among fixes for journalists, Gudich and his colleagues at #cut50 — which was founded in 2014 with the goal of reducing America’s prison population by half within ten years —recommend starting with person-centered language.  That is, “people in prison” or “incarcerated persons,” as opposed to “convicts” or “inmates.”  This is an ongoing culture shift that began in the criminal justice reform community several years ago but that hasn’t yet caught on in media, Gudich says....

But it’s not just a matter of semantics. “One of the reasons prison and criminal justice reform have been so difficult to achieve is how we talk about people who are incarcerated in this society,” says Jelani Cobb, a New Yorker staff writer and director of the Ira A. Lipman Center for Journalism and Civil and Human Rights at Columbia Journalism School. “As long as we’re talking about people only in terms of what they’ve done wrong, it’s easy to camouflage the fact that we’re talking about human beings.”...  

Advocates also recommend doing more to incorporate information other than what is provided by prison workers and the police. This presents challenges, they acknowledge, given the famous opacity of prisons and jails, the reticence of defense attorneys to allow clients to speak with the press, and the general business of public defenders.  But direct access to people who have been accused or convicted isn’t the only way to introduce balance into prison stories: experts on prison conditions abound, as do family members of prisoners.  In the wake of the holiday meal stories, Chandra Bozelko, a formerly incarcerated writer and reporter who comments frequently on prison-related issues, received calls from only a handful of small podcasting outfits. “If a tiny little podcast with, like, no staff at all can find me, so can a major newspaper,” Bozelko says...

Bozelko, by her description, is less of a “word hawk” than some advocates.  She’s not as offended by the word “felon,” for instance, as she is by factual inaccuracies in stories by reporters who seem to never have stepped foot inside a prison.  As for the inaccessibility of American prisons, she proposes an easy solution: hire more reporters with criminal records. Bozelko points to Keri Blakinger of the Houston Chronicle, who spent time in prison between 2010 and 2012 — and whose reporting has recently netted changes to dental care for prisoners in Texas, in addition to the firing or resignation of five prison workers involved in a scheme to plant evidence in prisoners’ cells.

None of this is to say it’s a reporter’s job to swing to prisoners’ defense, Bozelko says.  Ultimately, she just wants to see more nuance from mainstream outlets and an acknowledgement of the circumstances, bad luck, and structural factors that often feature heavily into the real stories prisoners have to tell: “Regardless of what a person did, prison wasn’t in their plan, and it’s not who they are.”

January 22, 2019 in On blogging, Prisons and prisoners | Permalink | Comments (1)

Anyone eager to speculate about Oklahoma capital cases with cert finally denied after so many relists?

I often like to make much of legal dogs that fail to bark (hat tip, Sherlock), and the Supreme Court's order list this morning had a couple of notably silent capital case canines in the form of Wood v. Oklahoma, No. 17-6891, and Jones v. Oklahoma, No. 17-6943 at the very top of the SCOTUS order list entries of cert denied.  Of course, silent and unexplained denials of even capital cert petitions without any comment are not usually noteworthy, but Kent Scheidegger over at Crime & Consequences has this new post sking "Why Did SCOTUS Sit on 2 Capital Cases for a Year?."  Here is part of Kent's lament, with emphasis in the original:

Wood v. Oklahoma, No. 17-6891, and Jones v. Oklahoma, No. 17-6943, involve the same issue the Supreme Court appropriately put to rest over 30 years ago in McCleskey v. Kemp....  Now they want to dredge it back up with yet another study conducted by notorious anti-death-penalty advocates. Note that this is a claim that has nothing whatever to do with whether they committed the crimes and only a very remote relation to whether death is a just and proportionate penalty for their conduct.  The Oklahoma courts said, correctly, that such a claim could not be raised for the first time in a successive post-conviction petition -- Wood's third and Jones's second.  Such petitions should be reserved for true miscarriages of justice.

The State filed its brief in opposition in Wood on January 29, 2018.  The case was distributed for conference twenty-six times.  This extraordinary number of relists has been the subject of considerable speculation.  What on earth could possibly be taking so long?  It does not take a year to say "Yes, we will hear it" or "No, we will not."  It couldn't be that the Court was going to summarily reverse and was writing a per curiam opinion.  The Court does not summarily reverse a decision when it rests on a valid state procedural ground and especially when deciding the merits in the petitioner's favor would require overruling a landmark precedent.

So the only possibility that seemed to be left was that one or more Justices were writing opinions concurring or dissenting from denial of certiorari.  But for nearly a year?

Today, the Court denied certiorari without comment and with no separate opinions. What?!  They held up long-overdue justice for a year for nothing?

Notably, Kent finishes his post with this expression of his frustration with these non-barking capital case canines: "This is conduct unbecoming the high court, or any court for that matter. Victims deserve more respect, even if the statute does not specifically apply to this proceeding."   I welcome reader reaction to what SCOTUS has done here or what Kent has to say about it, and I am especially interested in just thoughts about what might have been going on behind closed SCOTUS doors through 2018 here.

January 22, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Supreme Court grants cert in potentially big Second Amendment case out of New York City

In this post from over the weekend, I commented again on the Second Amendment's second-class status as evidenced by how its protections are general understood and applied in lower courts.  In that post, I might also have noted how long it has been since the Supreme Court has even taken up Second Amendment issues given that District of Columbia v. Heller was decided a way back in 2008 and McDonald v. Chicago was back in 2010. But, via this order list today, the Supreme Court has now given itself another opportunity to develop Second Amendment jurisprudence through a grant of certiorari in New York State Rifle & Pistol Association Inc. v. City of New York, New York. Here is how the cert petition sets up the Question Presented in this case:

New York City prohibits its residents from possessing a handgun without a license, and the only license the City makes available to most residents allows its holder to possess her handgun only in her home or en route to one of seven shooting ranges within the city.  The City thus bans its residents from transporting a handgun to any place outside city limits—even if the handgun is unloaded and locked in a container separate from its ammunition, and even if the owner seeks to transport it only to a second home for the core constitutionally protected purpose of self-defense, or to a more convenient out-of-city shooting range to hone its safe and effective use.

The City asserts that its transport ban promotes public safety by limiting the presence of handguns on city streets.  But the City put forth no empirical evidence that transporting an unloaded handgun, locked in a container separate from its ammunition, poses a meaningful risk to public safety.  Moreover, even if there were such a risk, the City’s restriction poses greater safety risks by encouraging residents who are leaving town to leave their handguns behind in vacant homes, and it serves only to increase the frequency of handgun transport within city limits by forcing many residents to use an in-city range rather than more convenient ranges elsewhere.

The question presented is:

Whether the City’s ban on transporting a licensed, locked, and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the Commerce Clause, and the constitutional right to travel.

Though debates over gun rights on not always germane to sentencing issues, the various ways gun possession and gun use are approached in constitutional law can have many echo effects on criminal justice systems and case processing. So, though not as big a case for sentencing fans as a few others this Term, New York State Rifle Pistol Association is still one I will be watching closely.

January 22, 2019 in Gun policy and sentencing, Second Amendment issues | Permalink | Comments (3)

January 21, 2019

What might Martin Luther King seek as the next step in federal criminal justice reform?

A busy day has meant that I only just now finished my annual MLK day tradition of listening to the full "I Have A Dream" speech Dr. King delivered in the "symbolic shadow" of Abraham Lincoln in August 1963. (I like to think that the fact I still get choked up is says more about MLK than about me.)  In prior posts on this day, some of which are linked below, I have quoted from Dr. King's speeches and writings and also have asked questions about the intersection of the civil rights movement and criminal justice reform.  Today I will do both by first briefly quoting from Dr. King's famous Letter from a Birmingham Jail

I am in Birmingham because injustice is here.  Just as the prophets of the eighth century B.C. left their villages and carried their "thus saith the Lord" far beyond the boundaries of their home towns, and just as the Apostle Paul left his village of Tarsus and carried the gospel of Jesus Christ to the far corners of the Greco Roman world, so am I compelled to carry the gospel of freedom beyond my own home town....

I cannot sit idly by in Atlanta and not be concerned about what happens in Birmingham.  Injustice anywhere is a threat to justice everywhere.  We are caught in an inescapable network of mutuality, tied in a single garment of destiny.  Whatever affects one directly, affects all indirectly.  Never again can we afford to live with the narrow, provincial "outside agitator" idea.  Anyone who lives inside the United States can never be considered an outsider anywhere within its bounds....

How does one determine whether a law is just or unjust?  A just law is a man made code that squares with the moral law or the law of God.  An unjust law is a code that is out of harmony with the moral law.  To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law.  Any law that uplifts human personality is just.  Any law that degrades human personality is unjust.... Sometimes a law is just on its face and unjust in its application....

Human progress never rolls in on wheels of inevitability; it comes through the tireless efforts of men willing to be co workers with God, and without this hard work, time itself becomes an ally of the forces of social stagnation.  We must use time creatively, in the knowledge that the time is always ripe to do right.  Now is the time to make real the promise of democracy and transform our pending national elegy into a creative psalm of brotherhood.  Now is the time to lift our national policy from the quicksand of racial injustice to the solid rock of human dignity.

In the near aftermath of the enactment of the FIRST STEP Act, I am eager to praise Congress for passing a law that "uplifts human personality" and seeks to lift our national prison policy from the quicksand of too many petty injustices to a more solid rock of human dignity.  But, to be true to its name, the FIRST STEP Act should be only the first of a number of federal criminal justice reforms that could further "make real the promise of democracy and transform our pending national elegy into a creative psalm of brotherhood."  Especially because I sincerely believe we all exist in an "inescapable network of mutuality, tied in a single garment of destiny," I am eager to hear what others think the great Martin Luther King would advocate as the next step in federal criminal justice reform.

Links to some prior MLK Day posts:

January 21, 2019 in Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Challenges facing federal prisons and prisoners ... from FIRST STEP Act implementation to shutdown dynamics

It is pure coincidence that the day Prez Trump signed the FIRST STEP Act into law was also the last day the federal government was fully funded before the current government shutdown. That day was December 21, 2018, which means today marks officially one month into both the shutdown and the implementation of the FIRST STEP Act.  Though I have done a few prior FIRST STEP Act implementation posts here and here and here and here, I figured it would be timely to do this round-up of some recent articles and commentary about both FIRST STEP implementation and shutdown echoes:

January 21, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (0)

January 20, 2019

"Sharks and Minnows in the War on Drugs: A Study of Quantity, Race and Drug Type in Drug Arrests"

The title of this post is the title of this important new article authored by Joseph Kennedy, Isaac Unah and Kasi Wahlers now available via SSRN. Here is its abstract:

Conventional wisdom has it that in the war on drugs you have to catch small fish in order to catch big fish.  But what if the vast majority of drug arrests were for very small fish, and disproportionately brown ones at that?  This Article is the first to conclusively establish that the war on drugs is being waged primarily against those possessing or selling minuscule amounts of drugs.  Two out of three drug offenders arrested by non-federal law enforcement possess or sell a gram or less at the time of arrest.  Furthermore, about 40% of arrests for hard drugs such as cocaine, heroin, and meth/amphetamine are for trace amounts — a quarter of a gram or less. These findings are the result of a first of its kind study of drug arrest data from National Incident-Based Reporting System (“NIBRS”) that analyzed all drug arrests reported for the years 2004, 2008, and 2012.  The resulting data set contained over a million cases, and useable quantity data was found in over 700,000 cases, making this study the most comprehensive study of drug arrest quantity undertaken to date by orders of magnitude.

This Article also challenges assumptions that the disproportionate representation of offenders of color among those incarcerated for drug offenses results from their greater involvement in selling larger quantities of drugs.  Offenders of color are by and large not more serious offenders in terms of quantity.  They just possess and sell drugs that are the most frequent target of arrest.  Blacks are disproportionately arrested overall because we arrest more for “Black drugs” than for “White drugs.”  Racial disparities might vanish or reverse if we were to make as many meth/amphetamine and heroin arrests as crack cocaine arrests.

After confirming that felony liability is typically triggered for selling — and in the case of hard drugs even possessing — such minuscule amounts, this Article argues that such offenses should be downgraded to misdemeanors for political, criminological and philosophical reasons.  Such liability is doubly unjust in light of the racial disparities revealed in the patterns of arrest.  A drug war premised on hunting great white sharks instead scoops up mostly minnows, and disproportionately ones of color. Felony liability for the two-thirds of offenders arrested for these gram-or-less amounts should be eliminated.

January 20, 2019 in Drug Offense Sentencing, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0)

DC Circuit showcases Second Amendment's second-class status by holding very old, non-violent felony eliminates right to keep arms

A few days ago at PrawfsBlawg, Gerard Magliocca touched off a debate over the reach and application of the Second Amendment via this post titled "The Bill of Rights Has First-Class and Coach Tickets."  His post riffs off a recent Third Circuit opinion upholding a New Jersey ammunition limit that prompted lengthy dissent by Judge Bibas.  And, as noted in this post from last year, Justice Thomas has lamented in a cert denial that the Second Amendment has become "constitutional orphan."  Long-time readers likely know that this discussion engages sentencing and collateral consequences in a variety of ways, and I have long noted that the Second Amendment seems to be the only (so-called) fundamental right in the Bill of Rights that can be permanently and categorically lost by a single old prior offenses.

The status of the Second Amendment as a second-class right, at least for those with any felony record, was reinforced just last Friday by the DC Circuit through an unanimous opinion in Medina v. Whitaker, No. 17-5248 (DC Cir. Jan 18, 2019) (available here). Here is how the opinion starts and a key paragraph toward the end of the panel's analysis:

Jorge Medina was convicted of falsifying his income on mortgage applications twenty-seven years ago.  Now, as a convicted felon, he is prohibited from owning firearms by federal law.  He argues that the application of this law to him violates the Second Amendment because he poses no heightened risk of gun violence.  Because we conclude that felons are not among the law-abiding, responsible citizens entitled to the protections of the Second Amendment, we reject his contention and affirm the district court’s dismissal order....

On balance, the historical evidence and the Supreme Court’s discussion of felon disarmament laws leads us to reject the argument that non-dangerous felons have a right to bear arms.  As a practical matter, this makes good sense.  Using an amorphous “dangerousness” standard to delineate the scope of the Second Amendment would require the government to make case-by-case predictive judgments before barring the possession of weapons by convicted criminals, illegal aliens, or perhaps even children.  We do not think the public, in ratifying the Second Amendment, would have understood the right to be so expansive and limitless.  At its core, the Amendment protects the right of “law-abiding, responsible citizens to use arms in defense of hearth and home.” Heller, 554 U.S. at 635.  Whether a certain crime removes one from the category of “law-abiding and responsible,” in some cases, may be a close question.  For example, the crime leading to the firearm prohibition in Schrader — a misdemeanor arising from a fistfight — may be open to debate.  Those who commit felonies however, cannot profit from our recognition of such borderline cases.  For these reasons, we hold that those convicted of felonies are not among those entitled to possess arms.

I do not at all dispute the notion that the Second Amendment was not intended to be limitless.  But I do like to highlight how jarring it would be if a state or the feds were to claim that any persons falsifying income on a mortgage application years ago should never again have a right to go to church or to write a book (First Amendment) or never again have a right to due process or against property takings (Fifth Amendment) or never again have a right to a trial or a to lawyer in a criminal prosecution (Sixth Amendment).  In other words, I see the Second Amendment as so obviously a second-class right because we so readily tolerate and even find "good sense" in dramatic categorical restrictions on this right that we would never contemplate with respect to other prominent rights in the Bill of Rights.

January 20, 2019 in Collateral consequences, Offender Characteristics, Second Amendment issues | Permalink | Comments (0)