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December 21, 2019

Some (incomplete) metrics as we reach the one-year anniversary of the FIRST STEP Act becoming law

Today marks exactly one year since Prez Donald Trump signed the FIRST STEP Act into law.  To celebrate the occasion, I will begin by just linking to just a few posts from last year around this time:

I could have linked to a dozen more post-enactment posts to provide a fuller flavor for the range of implementation issues (and commentary) that swiftly followed this historic bill becoming law.  But just the titles of the half-dozen posts above provide a useful reminder of the tumult that preceded congressional passage as well as various hiccups created by the subsequent government shutdown and some confusing provisions in the Act.

A year later, there are some obvious metrics for highlighting the first-year impact of FIRST STEP Act.  For example, this Federal Bureau of Prisons page reports on this "FSA Numbers" as of today:

In addition, the US Sentencing Commission in October released this detailed report on "First Step Act of 2018 Resentencing Provisions Retroactivity Data."  That report states that the mean decrease in months for retroactive resentencings has been 70 months.  Multiplying this number by the 2443 resentencing grants results in a total of 171,010 months of reduced prison time.  That is roughly 14,250(!) reduced years of years of federal imprisonment saved by just the crack statutory retroactivity provision of the FIRST STEP Act.

This Federal Register notice states that the Fiscal Year 2018 "cost of incarceration fee" per inmate was $37,449 per year.  Multiplying this number by the 14,250 years of reduced prison time suggests that the the crack statutory retroactivity provision of the FIRST STEP Act has saved US taxpayers around $533,680,000, that is over half a billion dollars.  This calculation  leaves out savings from many the other significant prison-time-saving provisions of the FIRST STEP Act (especially the good-time credit expansion and coming earned-time opportunities).  I do not think it improper to assert that FIRST STEP will ultimately result in billions of taxpayer dollars saved by reducing excessive prison time.

But, of course, prison years converted to taxpayer savings is a very incomplete metric for judging the impact of the FIRST STEP Act.  Smiles on the faces of families of persons benefiting from the reform are likely too numerous to calculate, and it is hard to quantify the impact and import of the hope that the Act should help spread among all justice-involved individuals.  And a new focus on prisoner rehabilitation, the significant echo effects on state-level reform efforts, and the evolution of political and social discussions around the criminal justice are also huge part of the first-year legacy of the FIRST STEP Act.

In the coming days, I may try to do a round up of notable posts from my FIRST STEP Act and its implementation archive.  In the meantime, I welcome any and all input on useful reflections or reviews as we mark this notable federal sentencing reform anniversary.

December 21, 2019 in FIRST STEP Act and its implementation | Permalink | Comments (0)

December 20, 2019

Fair Chance Act, serving to "ban the box" for the federal hiring process, becoming law as part of military spending bill

Though not quite as consequential or contentious as last year's passage and signing of the FIRST STEP Act, Congress and Prez Trump this year are again getting another piece of federal criminal justice reform legislation done in late December.  This Reason piece provides the basics:

President Donald Trump is expected to sign a bill into law today that will bar the federal government and its contractors from asking about the criminal history of a job applicant prior to the extension of a conditional offer of employment.

The Fair Chance Act, which was tucked into the massive defense spending bill passed by Congress earlier this week, was part of a national campaign by criminal justice advocacy groups and like-minded lawmakers to "ban the box" — referring to the question on job applications about whether one has been convicted of a crime — and reduce barriers to employment for an estimated 70 million Americans with criminal records.

"After many fits and starts, we are finally about to give formerly incarcerated individuals a second chance by eliminating a major hurdle they face when job-searching," Sen. Cory Booker (D–N.J.), one of the bill's cosponsors, said in a press release. "This legislation will immediately change lives by allowing thousands of qualified people with criminal records to more meaningfully integrate into life outside prison walls."

The law was supported by a bipartisan group of criminal justice organizations. Holly Harris, the executive director of Justice Action Network, said it will open "tens of thousands of federal government and contracting jobs to people who have made mistakes, but just need a chance to get a foot in the door to present their skills and qualifications."

According to the National Employment Law Project, 35 states and more than 150 cities have passed similar legislation, including red states like Georgia, Kentucky, and Oklahoma. Thirteen states extend those hiring requirements to private businesses.

December 20, 2019 in Collateral consequences, Reentry and community supervision | Permalink | Comments (0)

"Punishing Pill Mill Doctors: Sentencing Disparities in the Opioid Epidemic"

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

Consider two pill mill doctors who flooded the streets with oxycodone and other dangerous opioids.  The evidence against both doctors was overwhelming.  They each sold millions of opioid pills.  Both doctors charged addicted patients hundreds of dollars in cash for office visits that involved no physical examinations and no diagnostic tests.  Instead, the doctors simply handed the patients opioids in exchange for cash.  To maximize their income, both doctors conspired with street dealers to import fake patients — many of them homeless — so that the doctors could write even more prescriptions.  Both doctors made millions of dollars profiting off the misery of people addicted to opioids.  Even though juries convicted both doctors of similar criminal charges, they received drastically different sentences.  The first doctor was sentenced to 5 years, while the second doctor received a 35-year-sentence.

This article reviews 25 of the worst opioid pill mill doctors to be sentenced in the last five years, and it details drastic sentencing disparities in the federal system.  In more than half the cases, judges departed well below the Federal Sentencing Guidelines to impose sentences that were decades less than would be expected.

The sentencing variations in pill mill cases are not driven by traditional explanations such as the trial penalty or the defendant’s criminal history.  Instead, the sentencing variations are explained primarily by the age of the doctors.  Many pill mill doctors are in their 60s and 70s, and judges appear to be tailoring their sentencing decisions to ensure that older doctors will not spend the rest of their lives in prison.  Additionally, prosecutors face an uphill battle in proving the drug quantity against white-collar doctors (rather than street dealers) who can claim that some of their prescriptions were legitimate.  This article documents the difficulty of equitably punishing pill mill doctors, as well as the significance of age in sentencing older, white-collar offenders.

December 20, 2019 in Data on sentencing, Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (1)

Marshall Project and New York Times examining challenges for families of incarcerated persons

The Marshall Project has partnered this week with the New York Times on what will be a five part series of pieces exploring issues facing the families of persons who are incarcerated. Here are the headlines and links to the first three parts of this series:

"The Hidden Cost of Incarceration: Prison costs taxpayers $80 billion a year. It costs some families everything they have."

"The Long Journey to Visit a Family Member in Prison: Remote prison towns and strict visitation policies make it hard to stay in touch."

"Can You Hear Me Now?: Prison officials tout video visitation’s convenience. Families say they’re paying high rates for second-rate service"

December 20, 2019 in Collateral consequences, Prisons and prisoners | Permalink | Comments (0)

December 19, 2019

Might execution woes really lead Ohio's (deep red) General Assembly to repeal the death penalty?

The question in the title of this post is prompted by this remarkable new brief story in the Columbus Dispatch headlined "Householder says legislature may dump Ohio’s death penalty law." Here are the details:

House Republicans have started talking about whether the state should keep a death penalty law on its books if Ohio can’t buy the cocktail of drugs needed to carry out those sentences. “We don’t know that there is an option right now,” Ohio House Speaker Larry Householder told reporters Thursday. “We may have a law in place that allows for a death penalty that we can’t carry out. And the question is: Are the costs that are associated with that and retrials and all these things, at the end of the day, is it worth that?”

Ohio didn’t execute anyone in 2019, but the Buckeye State ranks seventh in the nation for number of people on death row. Republican Gov. Mike DeWine pushed back six execution dates this year, in part because of the problems Ohio has had with drug companies that are increasingly adamant that their drugs not be used in executions.

“We have been talking about, you know, is there support today to get rid of the death penalty or not,” Householder said. “We’ve been having those discussions.” But the speaker made clear that as of yet there’s been no resolution on the best way forward.

Though Ohio is still a bellwether state and though I still think of it as a purple state, its General Assembly is very red as Republicans outnumber Democrats in the Ohio Senate 24 to 9 and in the Ohio House of Representatives 61 to 38.  Consequently, it is a big story and a sign of the times that such a GOP-dominated legislature is even talking openly about possibly repealing the death penalty.  I doubt repeal will really move forward anytime soon, but it is still very telling and significant that GOP state leaders seem more interested in talking about repeal than in talking about possible alternative execution methods.

December 19, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Split Second Circuit panel grants feds request for mandamus to preclude a jury nullification instruction in child porn case involving 15-year mandatory minimum

A helpful reader made sure I did not miss this How Appealing post flagging the fascinating split Second Circuit panel ruling yesterday in US v. Manzano, No. 18-3430 (2d Cir. Dec. 18, 2019) (available here).  The start of the majority opinion sets forth the basics:

Respondent Yehudi Manzano stands charged with production of child pornography, an offense punishable by a mandatory minimum term of fifteen years’ imprisonment, and transportation of child pornography, which is punishable by a mandatory minimum term of five years’ imprisonment.  Shortly before trial, he filed motions requesting permission to argue for jury nullification — in essence, that the jury should render a verdict not in accordance with the law — and to present evidence regarding the sentencing consequences of a conviction in this case.  On the eve of trial, the district court (Underhill, Chief Judge) granted Manzano’s request to argue jury nullification, but reserved decision on the admissibility of evidence regarding the sentencing consequences of a conviction.

The government now seeks a writ of mandamus directing the district court to (1) preclude defense counsel from arguing jury nullification, and (2) exclude any evidence of sentencing consequences at trial.  Applying settled law in this circuit, we hold that the government has a clear and indisputable right to a writ directing the district court to deny defense counsel’s motion for leave to argue jury nullification, and that the other conditions for mandamus relief are satisfied.  We further hold that, at this time, the government does not possess a clear and indisputable right to a writ directing the district court to exclude any evidence of sentencing consequences.

Here is the start of Judge Barrington Parker's partial dissent:

We are fortunate that the prosecutors in this Circuit nearly always bring a high degree of professionalism, good judgment, and common sense to bear in the exercise of their responsibilities.  This case presents the unusual circumstance where a conscientious jurist is confronted with a charging decision that, in his considered judgment, reflects an abuse of prosecutorial power.  Charging decisions are, of course, by and large the exclusive province of prosecutors. 

There is a straightforward solution that could avoid the problems raised by the petition and discussed in this dissent.  The petition should be held in abeyance and the case remanded to the District Court, at which time the prosecutors could revisit their charging decision. If they chose not to do so, they could provide information as to why they believed their decision was appropriate. If this approach did not resolve the problem, this Court could then revisit the petition.

Faced with the Government’s charging decision, Judge Underhill could, I suppose, have acquiesced in whatever the prosecutors wanted.  But he is not a piece of Steuben glass. Instead, witnessing what he perceived to be abuse, he pushed back.  I believe that most conscientious jurists would have done the same.  I have no difficulty concluding that Judge Underhill was right to do so.  “[F]ederal courts have authority under their supervisory powers to oversee the administration of criminal justice within federal courts.”  United States v. Johnson, 221 F.3d 83, 96 (2d Cir. 2000) (quoting Daye v. Attorney Gen., 712 F.2d 1566, 1571 (2d Cir. 1983)).  They should use these powers “to see that the waters of justice are not polluted” and “to protect the integrity of the federal courts.” United States v. Payner, 447 U.S. 727, 744 (1980); accord United States v. HSBC Bank USA, N.A., 863 F.3d 125, 135 (2d Cir. 2017).  Their supervisory powers are not restricted to the protection of explicit constitutional rights.  McNabb v. United States, 318 U.S. 332, 341 (1943).  The powers exist “in order to maintain respect for law” and to “promote confidence in the administration of justice.”  Olmstead v. United States, 277 U.S. 438, 484 (1928) (Brandeis, J., dissenting); accord Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974); United States v. Getto, 729 F.3d 221, 229 (2d Cir. 2013).  The supervisory powers should be sparingly exercised.  HSBC, 863 F.3d at 136.  Judges are not, of course, free to disregard the limitations of the law they are charged with enforcing under the guise of exercising supervisory powers or at other times.  Payner, 447 U.S. at 737.  But since Payner, we have recognized that within their supervisory powers, courts should “not hesitate to scrutinize the Government’s conduct to ensure that it comports with the highest standards of fairness.” Johnson, 221 F.3d at 96 (quoting United States v. Lawlor, 168 F.3d 633, 637 (2d Cir. 1999)). This requirement applies with particular force in contexts such as charging and sentencing, especially those involving mandatory minimum sentences, where the Government plays an “often decisive role.” Id.

Whether Judge Underhill went too far is debatable.  But because this case does not come close to meeting the exacting standards for mandamus, I respectfully dissent from the majority’s grant of a writ directing the District Court to allow no arguments for jury nullification.  I concur to the extent that the majority denies a writ directing the District Court to exclude at trial evidence of sentencing consequences.

This local article about the ruling reports that the defendant's lawyer is going to seek en banc review. I am not optimistic the full Second Circuit will take up this matter or resolve it different, but I would like to see these issues get a lot more attention particularly in light of recent Sixth Amendment jurisprudence.  Notably, in the recent Haymond case, Justice Gorsuch spoke broadly about the Framers' vision of the jury right and explained: "Just as the right to vote sought to preserve the people's authority over their government's executive and legislative functions, the right to a jury trial sought to preserve the people's authority over its judicial functions." But how can the people have authority over the judicial function if they are not fully informed of their rights and authority as jurors and not made aware of the possible consequences of their decisions?

December 19, 2019 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences | Permalink | Comments (2)

PPI releases "Youth Confinement: The Whole Pie 2019"

Youth_pie_2019The Prison Policy Initiative has today posted the latest of its remarkable pie charts and reports providing an extraordinary look at confinement realities in the United States.  This new report by Wendy Sawyer is focused on youth confinement, and here is part of the report's introductory text and some other excerpts (along with the great infographic):

On any given day, over 48,000 youth in the United States are confined in facilities away from home as a result of juvenile justice or criminal justice involvement. Most are held in restrictive, correctional-style facilities, and thousands are held without even having had a trial. But even these high figures represent astonishing progress: Since 2000, the number of youth in confinement has fallen by 60%, a trend that shows no sign of slowing down.

What explains these remarkable changes? How are the juvenile justice and adult criminal justice systems different, and how are they similar? Perhaps most importantly, can those working to reduce the number of adults behind bars learn any lessons from the progress made in reducing youth confinement?

This report answers these questions, beginning with a snapshot of how many justice-involved youth are confined, where they are held, under what conditions, and for what offenses. It offers a starting point for people new to the issue to consider the ways that the problems of the criminal justice system are mirrored in the juvenile system: racial disparities, punitive conditions, pretrial detention, and overcriminalization. While acknowledging the philosophical, cultural, and procedural differences between the adult and juvenile justice systems, the report highlights these issues as areas ripe for reform for youth as well as adults.

This updated and expanded version of our original 2018 report also examines the dramatic reduction in the confined youth population, and offers insights and recommendations for advocates and policymakers working to shrink the adult criminal justice system....

Black and American Indian youth are overrepresented in juvenile facilities, while white youth are underrepresented.  These racial disparities are particularly pronounced when it comes to Black boys and American Indian girls.  While 14% of all youth under 18 in the U.S. are Black, 42% of boys and 35% of girls in juvenile facilities are Black.   And even excluding youth held in Indian country facilities, American Indians make up 3% of girls and 1.5% of boys in juvenile facilities, despite comprising less than 1% of all youth nationally.

Racial disparities are also evident in decisions to transfer youth from juvenile to adult court.  In 2017, Black youth made up 35% of delinquency cases, but over half (54%) of youth judicially transferred from juvenile court to adult court. Meanwhile, white youth accounted for 44% of all delinquency cases, but made up only 31% of judicial transfers to adult court.  And although the total number of youth judicially transferred in 2017 was less than half what it was in 2005, the racial disproportionality among these transfers has actually increased over time.  Reports also show that in California, prosecutors send Hispanic youth to adult court via "direct file" at 3.4 times the rate of white youth, and that American Indian youth are 1.8 times more likely than white youth to receive an adult prison sentence.

December 19, 2019 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

December 18, 2019

After serving more than 13 years in federal prison, former WorldCom CEO Bernie Ebbers secures compassionate release thanks to FIRST STEP Act

Regularly readers know that I have been regularly extolling the significance of the FIRST STEP Act's changes to the so-called compassionate release provisions of federal law. In many prior posts I have stressed the provision which now allows federal courts to directly reduce sentences under the statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons; this provision is such a big deal because, if applied appropriately and robustly, this provision could and should enable many hundreds, and perhaps many thousands, of federal prisoners to have excessive prison sentences reduced.

Today, as reported in this Bloomberg piece, the highest-profile defendant to date has benefited from this FIRST STEP Act change: "Bernard Ebbers, the former WorldCom Inc. chief executive officer, was ordered freed from prison, almost eight years before he was due to be released." Here is more from the press piece:

A federal judge in Manhattan on Wednesday granted compassionate release to Ebbers, who is serving a 25-year sentence for an $11 billion fraud that bankrupted the company. U.S. District Judge Valerie E. Caproni said Ebbers’s health is failing and that letting him out early doesn’t minimize the impact of his punishment.

Relatives of the 78-year-old reacted with jubilation in court. “We’re elated and just very grateful not only for Mr. Ebbers but especially for his family,” lawyer Graham Carner said after the hearing. “All they wanted was for him to live out his time with them.”

Ebbers has served more than 13 years for overseeing the fraud, which was the biggest in U.S. history at the time. He was scheduled to be released in July 2028 with credit for good behavior. It isn’t immediately clear when he will leave prison.

Attorneys for Ebbers asked Caproni in September to free him due to his many medical problems, including macular degeneration that has left him legally blind and a heart condition that makes him vulnerable to cardiac arrest. The U.S. Bureau of Prisons had denied a request from Ebbers’s daughters for compassionate release under the 2018 First Step Act, which allows some federal inmates to be released if they are over 60 years old and face terminal illnesses.

While Caproni noted that records “suggest some exaggeration of his mental condition” that led her to believe Ebbers was trying to manipulate her, she also expressed concern that he’s malnourished and appears to have lost almost 60 pounds since last year.

Some of many prior related posts:

December 18, 2019 in FIRST STEP Act and its implementation, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Drug Policy Alliance releases big new report titled "Rethinking the 'Drug Dealer'"

As detailed in this press release, yesterday "the Drug Policy Alliance released a new report making the case for rethinking the way the United States responds to the 'drug dealer'."  Here is more from the press release that serves as a kind of summary of the full report:

The report demonstrates how the United States’ punitive approach to people who sell or distribute drugs — rooted in stigma, ignorance and fear, rather than evidence — has done nothing to reduce the harms of drug use or improve public safety, while instead creating new problems and compounding those that already exist....

“With a record 70,000 deaths from accidental overdose in 2017, people are understandably searching for solutions, but applying harsh penalties to drug sellers scapegoats people who are more often than not drug users as well, while ignoring the larger issue,” said Lindsay LaSalle, Managing Director of Public Health Law and Policy at the Drug Policy Alliance.  “Instead, we should be using the same resources and determination to reduce the actual harms of both drug use and drug prohibition, repair the criminal legal system’s discriminatory response to the drug trade, and increase access to evidence-based treatment and support services that benefit health, public safety and economic opportunity in the long term.”

Among the flaws in the current system, the report highlights the following:

  • Current laws were created on the premise that they would reduce overall supply, and in turn, consumption. In reality, the opposite has occurred. We have increased the number of people incarcerated for selling or distribution offenses by 3000% — from 15,000 in 1980 to 450,000 today — and drugs are more readily available, at significantly lower prices.
  • Nearly half of people who have reported selling drugs also meet the criteria for a substance use disorder, supporting the idea that they are selling drugs, to an extent, to support their own dependency.
  • Laws against drug selling are so broadly written that people arrested with drugs for personal use can get charged as “dealers,” even if they were not involved in selling at all.
  • While the criminal legal system purports to focus on high-level sellers, the data show that supply-side criminalization disproportionately impacts the lowest-level people on the supply chain.
  • The current system has a discriminatory impact on communities of color, despite the fact that data suggest white people are slightly more likely than Black or Latinx people to report having sold drugs....

Accordingly, DPA has provided a set of tailored recommendations based on three broad principles:

  • First, to the maximum extent possible, society should deal with drug involvement outside the destructive apparatus of criminalization — and to the extent that the criminal justice system continues to focus on drug selling and distribution, it must do so with a commitment to proportionality and due process.
  • Second, we should focus on reducing the harms of drug distribution (for example, reducing drug market-related violence), rather than attempting to eliminate drug market activity.
  • Third, we must take seriously the criminal justice system’s discriminatory response to the drug trade and work toward reforms that both repair the harm already done while preventing further harm to communities of color and poor communities.  With the report public, DPA aims to expand the current public dialogue around drug reform, to focus on who the people now labeled “drug dealers” in the United States really are and how we, as a society, can respond to them in ways that will keep people and communities safer and healthier.

The full 76-page report can be accessed at this link and a two-page executive summary is available here.

December 18, 2019 in Drug Offense Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

SCOTUS grants cert on a couple more criminal justice matters to round out 2019

As reported here at SCOTUSblog, late last week the Supreme Court "added five new cases, for a total of four hours of argument, to their docket for this term .... but this morning the justices added five more new cases, again for a total of four hours of argument, to their docket."  Two of the grants involve criminal justice matters, and here are descriptions of those via SCOTUSblog:

In Torres v. Madrid, the justices will weigh in on what it means to be “seized” for purposes of the Fourth Amendment’s ban on unreasonable seizures.  The case arose when Roxanne Torres dropped off a friend at the apartment complex where police in Albuquerque were attempting to serve an arrest warrant on a different person.  When police approached her car, Torres — not realizing that they were police officers — believed that she was about to be the victim of a carjacking and drove her car forward.  The officers shot her twice while she was still in her car; Torres managed to continue to drive away from the scene and was later treated at a hospital for her injuries.  When Torres sued the officers for using excessive force, the U.S. Court of Appeals for the 10th Circuit threw out her case.  It ruled that Torres had not been “seized” because she continued to drive away after being shot, rather than being arrested.  Torres asked the justices to review that ruling, which they agreed to do today....

And in Pereida v. Barr, the justices will decide whether a noncitizen who is convicted of a state crime can apply for relief from deportation — such as asylum or cancellation of removal — when the state-court record is ambiguous about whether his conviction corresponds to an offense listed in the Immigration and Nationality Act.  The question arises in the case of Clemente Pereida, who was convicted in Nebraska of “attempted criminal impersonation,” a misdemeanor for which he was fined $100.  The dispute centers on whether the conviction was a “crime of moral turpitude,” which would bar Pereida from applying for relief from deportation.  The federal government agreed with Pereida that review should be granted, although it agrees with the U.S. Court of Appeals for the 8th Circuit that Pereida is not eligible for relief from deportation.

December 18, 2019 in Who Sentences | Permalink | Comments (0)

AG William Barr announces "Operation Relentless Pursuit" to combat violent crime in seven US cities

This new press release from the Justice Department reports that today "Attorney General William P. Barr announced the launch of Operation Relentless Pursuit, an initiative aimed at combating violent crime in seven of America’s most violent cities through a surge in federal resources."  Here is more from the press release:

Joined at a press conference in Detroit, Michigan, by Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) Acting Director Regina Lombardo, Drug Enforcement Administration (DEA) Acting Administrator Uttam Dhillon, FBI Director Christopher A. Wray, and U.S. Marshals Service Director Donald W. Washington, Attorney General Barr pledged to intensify federal law enforcement resources into Albuquerque, Baltimore, Cleveland, Detroit, Kansas City, Memphis, and Milwaukee — seven American cities with violent crime levels several times the national average.

“Americans deserve to live in safety,” said Attorney General William P. Barr.  “And while nationwide violent crime rates are down, many cities continue to see levels of extraordinary violence. Operation Relentless Pursuit seeks to ensure that no American city is excluded from the peace and security felt by the majority of Americans, while also supporting those who serve and protect in these communities with the resources, training, and equipment they need to stay safe.”

“The men and women of ATF are deeply committed to and focused on reducing crime gun violence in our communities,” said ATF Acting Director Regina Lombardo.  “We are proud that our efforts have significantly contributed to the historic reductions in violence that our nation has realized in recent years.  Operation Relentless Pursuit combines the resources of ATF, DEA, FBI, and U.S. Marshals to support our state and local law enforcement partners in those cities that — regrettably — continue to be plagued by rates of violent crime that are simply too high.  Through Relentless Pursuit, we pledge to hold accountable the trigger-pullers, firearm traffickers, violent criminals and those who supply them the guns to terrorize our communities.  ATF will aggressively utilize every available tool, including our crime gun enforcement teams, National Integrated Ballistic Information Network and firearms tracing to identify, investigate and support the prosecution of the most violent firearm offenders.”

“Drug traffickers — including cartels and street gangs — will stop at nothing to turn a profit, often using violence and intimidation to expand their reach,” said DEA Acting Administrator Uttam Dhillon.  “This targeted surge of resources will further strengthen our ability to work with our federal, state, and local partners to pursue the worst offenders and make our communities safer.” 

“The FBI remains committed to providing our specialized expertise and resources to assist our federal, state and local partners fighting violent crime,” said FBI Director Christopher A. Wray.  “We are here today to reaffirm our dedication to reducing violent crime in the cities selected for Operation Relentless Pursuit to combat the threats that arise from gangs and criminal enterprises that drive violence in the communities we are sworn to protect.”...

The operation will involve increasing the number of federal law enforcement officers to the selected cities, as well as bulking up federal task forces through collaborative efforts with state and local law enforcement partners.  The surge in federal agents will be complemented by a financial commitment of up to $71 million in federal grant funding that can be used to hire new officers, pay overtime and benefits, finance federally deputized task force officers, and provide mission-critical equipment and technology.  

December 18, 2019 in Offense Characteristics, Who Sentences | Permalink | Comments (0)

"Opioids, Addiction Treatment, and the Long Tail of Eugenics"

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

Our attitude, treatment, and punishment of opioid addiction partly results from the long, intertwined history of eugenics and incarceration.  There is a thread of eugenics-based philosophy undergirding our widespread imprisonment of the poor, disabled, and dependent.  The current approach to opioid addiction in the criminal justice and sentencing worlds reflects this bias, hindering our ability to best treat the opioid crisis.  Our 21st century tactics to combat the opioid addiction crisis unwittingly track the methods used to address the widespread use of opioids in the late 19th and early 20th centuries, with equally troubling results.  Indeed, addiction to pharmaceutical opiates is no recent problem; historically, iatrogenic drug use has been far more extensive than illicit drug use.  Old errors are being re-enacted as we attempt to solve the problems of opioid-addicted offenders during sentencing, inside correctional facilities, and on release.  Accordingly, before we craft workable policies to combat the opioid crisis, we must fully explore and understand the history of iatrogenic opioid addiction, to avoid making the same mistakes.

December 18, 2019 in Drug Offense Sentencing, Offender Characteristics | Permalink | Comments (0)

December 17, 2019

Fifth Circuit joins others saying offense of conviction, not claims about underlying conduct, determines eligibility for retroactive relief under FIRST STEP Act

A helpful reader made sure I did not miss a notable opinion from a Fifth Circuit panel yesterday in US v. Jackson, No. 19-20346 (5th Cir. Dec. 16, 2019) (available here).  The defendant in Jackson ultimately loses in his battle to benefit from the Fair Sentencing Act retroactivity provision of the FIRST STEP Act, but in so doing the Fifth Circuit addresses an important eligibility war that has been ranging in courtrooms nationwide.  Here is part of the panel's discussion:

The first inquiry in evaluating a motion under section 404 is whether the defendant has a “covered offense.”  See FSA, § 404(a).  The FSA defines such an offense as “a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010 . . . that was committed before August 3, 2010.” Id.

The government’s view of the meaning of “covered offense” is less than clear.  At the district court, the government appeared to contend that Jackson’s offense wasn’t covered because the presentence investigation report (“PSR”) found him responsible for 402.2 grams of crack, meaning that he exceeded even the new 280-gram requirement.  But the government’s briefing on appeal seems to concede that Jackson’s offense is covered.

In other cases, the government has contended that “what counts as a covered offense necessarily turns on facts specific to the defendant’s offense, not limited to what was charged in the indictment.”  United States v. White, 2019 WL 3228335, at *2 (S.D. Tex. July 17, 2019) (quotation marks removed).  On that theory, if the jury convicts on a count requiring a showing of fifty or more grams, but the PSR later finds that, say, 500 grams were involved, then the defendant doesn’t have a “covered offense,” since the drug quantity as stated in the PSR exceeds even the new 280-gram threshold.  See id.

That approach doesn’t comport with the ordinary meaning of the statute, however.  As stated above, a “covered offense” is “a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010 . . . that was committed before August 3, 2010.” FSA, § 404(a) (emphasis added). The “penalties clause” is the portion in italics. For the government’s approach from previous cases to work, the penalties clause must modify “violation,” not “Federal criminal statute.” But for at least three reasons, the better reading is that it modifies “Federal criminal statute.”  It follows that whether an offense is “covered” depends only on the statute under which the defendant was convicted....

We thus conclude that whether a defendant has a “covered offense” under section 404(a) depends only on the statute under which he was convicted.  If he was convicted of violating a statute whose penalties were modified by the Fair Sentencing Act, then he meets that aspect of a “covered offense.”  The only other circuits to have confronted these arguments agree.

December 17, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

DPIC releases year-end report asserting that "capital punishment continued to wither across the United States in 2019"

2019SentenceTrendsThis new press release from the Death Penalty Information Center, titled "Death Penalty Erodes Further in 2019 as New Hampshire Abolishes and California Imposes Moratorium," provides a summary of the DPIC's on-line 2019 year-end report on the administration of the death penalty in the United States.  Here are excerpts from the report's introduction:

Capital punishment continued to wither across the United States in 2019, disappearing completely in some regions and significantly eroding in others.  New Hampshire became the 21st state to abolish the death penalty and California became the fourth state with a moratorium on executions.  With those actions, half of all U.S. states have abolished the death penalty or now prohibit executions, and no state in New England authorizes capital punishment at all.

The use of the death penalty remained near historic lows, as states conducted fewer than 30 executions and imposed fewer than 50 new death sentences for the fifth year in a row.  Seven states executed a total of 22 prisoners in 2019.  With several penalty-phase outcomes still undetermined, DPIC projects that between 35 and 37 new death sentences will be imposed in 2019.

In the Midwest, Ohio suspended executions in the wake of a court decision comparing its execution process to waterboarding, suffocation, and being chemically burned alive.  On December 11, Indiana marked the ten-year point without an execution.  Death sentences in the American West set a record low, Oregon substantially limited the breadth of its death-penalty statute, and — also for the fifth straight year — no state west of Texas carried out any executions.  32 U.S. states have now either abolished the death penalty or have not carried out an execution in more than a decade.

Public opinion continued to reflect a death penalty in retreat.  Support for capital punishment remained near a 47-year low and 60% of Americans — a new record — told Gallup they preferred life imprisonment over the death penalty as the better approach to punishing murder.

While most of the nation saw near-historic lows in death sentences and executions, a few jurisdictions bucked the national trend. Death sentences spiked in Cuyahoga County (Cleveland), Ohio to three in 2019 and five in the last two years, more than in any other county in the country.  The U.S. government attempted to restart federal executions after a 16-year hiatus, using an execution protocol that had not been submitted to the public for comment or the courts for review.  However, its plan to carry out five executions in a five-week period fizzled when the U.S. Supreme Court declined to disturb a lower court injunction temporarily halting the executions....

Executions continued to be geographically isolated, with 91% of all executions taking place in the South, and 41% in Texas alone.  Scott Dozier, a mentally ill death-row prisoner who gave up his appeals and unsuccessfully attempted to force Nevada to execute him, committed suicide on death row....

In an unusually rancorous Supreme Court year, the Justices sparred over the circumstances in which stays of execution should be granted.  The Court ruled that potentially torturous executions were not unconstitutional unless they involved “superadded pain” and the prisoner — even if impeded by state secrecy practices — proved that an established and less painful alternative method to execute him was available to the state.  There were few decisions on the substance of death penalty law and the term was more notable for significant allegations of discriminatory practices that the Court chose not to review.

I have reprinted here the DPIC graphic on number of death sentences imposed, as the steep decline in the number of death sentences strikes me as the most telling and consequential aspect of the decline of the modern use of the death penalty. But there is a lot of other notable data in the DPIC report that ought to hearten those who disfavor capital punishment.

December 17, 2019 in Baze and Glossip lethal injection cases, Data on sentencing, Death Penalty Reforms, Detailed sentencing data | Permalink | Comments (1)

Rick Gates gets sentence of 45 days in jail and a fine and community service (while co-defendant Paul Manafort has five more years in prison)

As reported in this CBS News piece, "Rick Gates, the former Trump campaign official and onetime business partner of Paul Manafort, was sentenced to 45 days in jail on counts of conspiracy and lying to federal investigators." Here is more:

Gates, 47, appeared in federal court in Washington to learn his sentence Tuesday. U.S. District Judge Amy Berman Jackson sentenced him to 36 months probation and 45 days behind bars, which he will be allowed to serve on weekends or under a schedule set by probation officers. He must also pay a fine of $20,000 over the course of 20 months, and complete 300 hours of community service.

Gates was one of six Trump associates charged in connection to special counsel Robert Mueller's investigation into Russian interference in the 2016 election. He pleaded guilty to two counts in February 2018, admitting he lied to federal investigators and helped Manafort conceal millions of dollars in overseas payments. Gates agreed to cooperate with the government, becoming the star witness in high-profile trials of three others charged in the Mueller probe: Manafort, Roger Stone and Greg Craig.

Because of his extensive cooperation with the government, federal prosecutors recommended that Jackson sentence Gates to probation, a much lighter punishment than the maximum 10 years in prison the charges allowed under federal guidelines.

Gates was Manafort's right-hand man and became his deputy when Manafort was named chairman of the Trump campaign in 2016. After Manafort was forced to step down over revelations about his work in Ukraine, Gates stayed on, becoming a liaison between the campaign and the Republican National Committee. He helped plan President Trump's inauguration before leaving for a job with a pro-Trump outside group.

At Manafort's trial on charges of bank fraud and other financial crimes, Gates provided crucial testimony against his former boss, telling jurors Manafort had instructed him to forge financial documents and IRS forms.

As folks may recall, Manafort was convicted at trial of some counts, pleaded guilty to another set of charges and he ultimately received 7.5 years in total imprisonment after two sentencings.  And, according to the Bureau of Prisons inmate locator, Manafort now has a release date of Christmas Day 2024.

Prior related post:

December 17, 2019 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences | Permalink | Comments (1)

The Sentencing Project publishes short analysis, "One Year After the First Step Act: Mixed Outcomes"

I have been thinking lately about how best to explore and "celebrate" the coming one-year anniversary of the enactment of the FIRST STEP Act.  Helpfully, The Sentencing Project got the party started with the release of this two-pager titled "One Year After the First Step Act: Mixed Outcomes."  Here is how it gets started:

Congress passed and President Donald Trump signed the First Step Act one year ago on December 21, 2018, to limit mandatory minimums for low-level drug offenses, provide retroactive sentence reductions to people imprisoned under the 100 to 1 crack cocaine disparity, and expand rehabilitation in federal prisons. Implementation of the new law has been mixed.

While sentence reductions have been approved by judges, the Department of Justice (DOJ) has attempted to block hundreds of eligible beneficiaries.  There has also been a problematic rollout of the risk and needs assessment tool to determine earned-time credit eligibility and limited programming for rehabilitation.

Since 2013, the federal prison population has declined by almost 43,000 people because of reductions to the federal sentencing guidelines for drug offenses promulgated by the U.S. Sentencing Commission and changes to mandatory minimum sentences for crack cocaine offenses enacted by Congress in 2010.  Full implementation and robust funding for the First Step Act can contribute to further reducing the federal prison population, but Congress and the Department of Justice have more work to do to end overcrowding, ensure fairness in sentencing and improve prison conditions.

On the one-year anniversary of the First Step Act, The Sentencing Project applauds the bill’s achievements but cautions that additional reforms are necessary if we are to see a substantial long-term population reduction.

December 17, 2019 in FIRST STEP Act and its implementation | Permalink | Comments (0)

December 16, 2019

"Algorithmic Risk Assessment in the Hands of Humans"

The title of this post is the title of this new empirical paper authored by Megan Stevenson and Jennifer Doleac.  Here is its abstract:

We evaluate the impacts of adopting algorithmic predictions of future offending (risk assessments) as an aid to judicial discretion in felony sentencing.  We find that judges' decisions are influenced by the risk score, leading to longer sentences for defendants with higher scores and shorter sentences for those with lower scores.  However, we find no robust evidence that this reshuffling led to a decline in recidivism, and, over time, judges appeared to use the risk scores less.
Risk assessment's failure to reduce recidivism is at least partially explained by judicial discretion in its use.  Judges systematically grant leniency to young defendants, despite their high risk of reoffending.  This is in line with a long standing practice of treating youth as a mitigator in sentencing, due to lower perceived culpability.  Such a conflict in goals may have led prior studies to overestimate the extent to which judges make prediction errors.  Since one of the most important inputs to the risk score is effectively off-limits, risk assessment's expected benefits are curtailed. 
We find no evidence that risk assessment affected racial disparities statewide, although there was a relative increase in sentences for black defendants in courts that appeared to use risk assessment most. We conduct simulations to evaluate how race and age disparities would have changed if judges had fully complied with the sentencing recommendations associated with the algorithm.  Racial disparities might have increased slightly, but the largest change would have been higher relative incarceration rates for defendants under the age of 23.  In the context of contentious public discussions about algorithms, our results highlight the importance of thinking about how man and machine interact.

December 16, 2019 in Data on sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Vera Institute produces new report highlighting big increases in rural jail populations

This recent New York Times piece, headlined "‘A Cesspool of a Dungeon’: The Surging Population in Rural Jails," fills out the picture presented by the statistical story set out in this new Vera Institute report on jail populations in the United States. Here is part of the NY Times piece:

Jail populations used to be concentrated in big cities. But since 2013, the number of people locked up in rural, conservative counties such as Hamblen has skyrocketed, driven by the nation’s drug crisis.

Like a lot of Appalachia, Morristown, Tenn., about an hour east of Knoxville, has been devastated by methamphetamine and opioid use. Residents who commit crimes to support their addiction pack the 255-bed jail, which had 439 inmates at the end of October, according to the latest state data. Many cities have invested in treatment options and diversion programs to help drug users. But those alternatives aren’t available in a lot of small towns.

“In the big city, you get a ticket and a trip to the clinic,” said Jacob Kang-Brown, a senior research associate at the Vera Institute of Justice, which released a report on Friday analyzing jail populations. “But in a smaller area, you might get three months in jail.”

The disparity has meant that while jail populations have dropped 18 percent in urban areas since 2013, they have climbed 27 percent in rural areas during that same period, according to estimates in the report from Vera, a nonprofit group that works to improve justice systems. The estimates are drawn from a sample of data from about 850 counties across the country.

There are now about 167,000 inmates in urban jails and 184,000 in rural ones, Vera said. Suburban jail populations have remained about the same since 2013, while small and midsize cities saw a 7 percent increase.

Rural jails now lock up people at a rate more than double that of urban areas. And increasingly, those inmates are women.

Here is part of the summary from the Vera report, which is titled "People in Jail in 2019":

At midyear 2019, there were an estimated 758,400 people in local jails, up 13,200 (1.8 percent increase) from midyear 2017, which is the most recently available BJS data.  This is the highest number of people in jail since midyear 2009, and the number is up 31,000 since the recent trough in 2015 (4.3 percent increase).  Most people in jail have not been convicted of the charges they are facing, and many are being detained in civil matters, such as people incarcerated pretrial for immigration cases or those incarcerated due to unpaid child support or fines and fees.

The jail incarceration rate in the United States was an estimated 230 people in jail per 100,000 residents, up from 229 per 100,000 in 2017, representing a 0.5 percent increase. This brings the rate of jail incarceration up 1.3 percent since the recent trough in 2015.  Jail incarceration rates are 2.8 times higher than they were in 1960.

The national increase in the local jail population hides stark diverging trends across the urban to rural continuum.  Since 2013, jail populations have grown 27 percent in rural counties and 7 percent in small and mid-sized metropolitan areas.  During the same period, jail populations have declined 18 percent in large urban counties and are down 1 percent in the suburban counties surrounding those large urban counties.  In 2019, rural counties’ jail incarceration rates were more than double those of urban counties.

December 16, 2019 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

December 15, 2019

"The progressive prosecutor movement is great — but without funding public defenders it won't work"

The title of this post is the headline of this new Salon commentary authored by Premal Dharia.  Here are excerpts:

This growing support for public defense funding highlights a glaring missed opportunity: the inclusion of this issue on the policy platforms of the growing number of so-called progressive prosecutors. In counties and cities around the country, campaigning and newly elected prosecutors have highlighted plans to end cash bail, increase diversion programs, stop prosecuting certain drug or minor cases, and stop seeking the death penalty.  These policy changes are all important. But many of them won’t have nearly the impact they could because a critical piece of the infrastructure is missing: resourced public defenders.  If prosecutors truly want to bring about meaningful change, they must make the funding of public defenders a centerpiece their platforms. Indeed, the failure to include indigent defense funding in platforms for progressive change lays bare the failure to envision what is actually needed for change to happen.  Public defenders are essential to implementing the policy changes proposed by so many prosecutors. They are the other half of the adversarial system; for every lever set up by prosecutors, they are necessary for pushing or pulling it....

Public defenders are on the front lines of the devastation wrought by our system of mass criminalization and they are guided by an unwavering dedication to the very people being devastated.  The failure to fund them is part and parcel of the very same culture that allows excessive fines and fees to be imposed on the poor and money bail systems to flourish in courthouses around our country.  It’s time that the people claiming to want reform — including a new wave of prosecutors and hopeful prosecutors around the country — advocate for the resources that are essential to making real change happen.

December 15, 2019 in Who Sentences | Permalink | Comments (3)