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January 4, 2020

Despite creating lots of clemency hope, NY Gov Cuomo delivers little clemency relief

This New York Daily News article, headlined "Gov. Cuomo grants clemency to abused upstate woman convicted of murder as advocates call for more action," reports on the clemency grants issued yesterday by New York Andrew Cuomo. Here are the details:

An upstate woman convicted of murder after suffering physical and emotional abuse at the hands of her husband had her 50-year prison sentence commuted by Gov. Cuomo on Friday. Monica Szlekovics, along with her abusive husband, was found guilty of a 1996 murder in Rochester.

Szlikovics, 42, had a traumatic childhood and endured “extreme, ongoing physical and psychological abuse from her husband,” said a statement from Cuomo’s office. She suffered from complex post-traumatic stress disorder and trauma bonding when her husband forced her to take part in the slaying, the statement said.

In her more than two decades behind bars, Szlekovics has expressed remorse for her role in the murder, completed a bachelor’s degree in sociology, worked as a clerk for the prison college program and participated in domestic violence classes. She also has the support of domestic violence groups and women’s justice advocates....

Cuomo also commuted the sentence of Ryan Brice, 32, who turned to crime to make money after his family lost their home and possessions from flooding during Hurricane Irene in 2011. Albany cops caught Brice trying to raise cash by selling a loaded assault rifle for $1,200, leading him to plead guilty to a charge of criminal weapons possession. He was sentenced to prison as a violent offender — even though he never committed any violent acts, the governor’s office said.

Cuomo pardoned nine others convicted of a variety of charges who have remained crime-free since serving their time. Most of those pardoned were convicted of misdemeanor drug charges. He called those who he granted clemency "deserving New Yorkers who have proven their remorse and undergone successful rehabilitation.”

Advocacy groups say Cuomo has failed to follow through on promises to assist more convicted criminals who have demonstrated remorse and accountability. The Release Aging People in Prison Campaign issued a scathing statement Friday calling on Cuomo to show mercy to more of the thousands of prisoners who have applied to have their sentences shortened....

Since 2011, Cuomo has commuted the sentences of only 21 people — most famously that of Judith Clark, who drove a getaway car in the 1981 Brink’s robbery that left three people dead. The commutation in 2016 move made Clark eligible for parole; she was released from prison last June. In 2018, Cuomo issued around 30 pardons, mostly to immigrants who were at risk of deportation. He also commuted the sentences of nine prisoners.

The official statement from Gov Cuomo about the 11 clemency grants can be found here, and the statement from The Release Aging People in Prison Campaign can be found here. Here is an excerpt from that later statement:

As New York celebrates a new year and decade, thousands of New Yorkers continue to languish behind prison bars in 2020 because the governor continually refuses to use his executive clemency power in a meaningful way.  While governors in Kentucky, Oklahoma, Pennsylvania, California, and other states have recently used their executive power to promote freedom and reunite families, Cuomo continues to keep people in despair and families apart.

In 2015, Cuomo invited pro bono attorneys to help incarcerated people put together clemency petitions with the goal of granting more clemencies to worthy candidates.  More than 6,000 New Yorkers in prison responded by applying for clemency in ways that demonstrated their remorse, accountability, many accomplishments, family and reentry support, and more.  Yet to date, Cuomo has granted only 21 total commutations, an average of two per year since taking office in 2011.

If New York is to be a leader in the movement to end mass incarceration and the nationwide effort to resist President Trump’s racist agenda, then we need a progressive governor to show bold courage and leadership. Justice for one or two individuals isn’t enough.

More than a few notable folks have used Twitter (such as Profs Rachel Barkow and Steve Zeidman) to expresss similar disappointment at Gov Cuomo's failure to walk the clemency walk after having long talked up his clemency powers.

January 4, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

January 3, 2020

"The Effectiveness of Prison Programming: A Review of the Research Literature Examining the Impact of Federal, State, and Local Inmate Programming on Post-Release Recidivism"

The title of this post is the title of this notable new research document authored by James Byrne on Behalf of the First Step Act Independent Review Committee. (Backgound on this important Committee can be found at this link.)  I do not believe that this Committee has yet produced much original substantive material, and I am not sure if this new 42-page research document (which is dated Dec. 2019) is a sign of more to come.  In any event, here is its introduction:

The First Step Act emphasizes the importance of BOP programming as a recidivism reduction strategy and includes sentence-reduction incentives for eligible inmates who participate in “evidence-based recidivism reduction programs.”  This memorandum reviews available research about the recidivism reduction effects of federal, state, and local prison programming in an attempt to determine to what extent such programming can fairly be described as evidence-based.  There are three distinct types of reviews that can be used to establish evidentiary criteria and determine “what works” in the area of prison programming (Byrne and Luigio, 2009).  The most rigorous such review would focus narrowly on the results of high quality, well-designed randomized control trials (RCTs) conducted during a specified period.  A minimum of two RCTs demonstrating effectiveness (and a preponderance of lower-level research studies producing similar results) would be necessary before a determination could be offered about whether a particular program or strategy “worked.”  This is the type of review strategy and scientific evidence relied on in the hard sciences.

A second review strategy allows identification of a program as evidence-based (or working) if there are at least two quasi-experimental studies with positive findings, and the majority of lower-quality studies point in the same direction.  This is the approach used in the reviews produced by the Campbell Collaborative.  A variation on this approach — representing a third type of evidence-based review — is found on the DOJ CrimeSolutions.gov website, where a program will be described as effective based on a rating of each applicable research study by two independent reviewers.

To be rated as effective, at least one high quality evaluation — RCT or well-designed quasi-experiment — needs to be identified.  This memorandum adopts the second standard described above to summarize the research under review (see Appendix B), but we have also examined all studies and reviews of prison programs identified by CrimeSolutions.gov.

Included in this review is a careful look at the available evaluation research on the BOP programming, focusing on the 18 “national model” prison programs identified by BOP.  Also included in this review is an examination of the much larger body of evaluation research conducted on the recidivism reduction effects of state and local prison programs.  This memorandum offers summary assessments of all relevant evaluation research and corresponding recommendations for DOJ and BOP to consider as they move to implement high quality, evidence-based programming in the federal prison system.

And here is a key paragraph labelled "Conclusion" after a detailed substantive discussion (with emphasis in original):

Completion of prison programming by federal prisoners does appear to provide an important signal that these individuals have begun to address — via BOP programming — problems that we know are linked to criminality: substance abuse, mental health deficits, and lack of education and/or employment skills.  However, a careful review of the evaluation research strongly suggests that the likely effects of participation in current prison programming on both treatment outcomes (i.e. improvement in identified need areas) and post release behavior are—statistically speaking—significant but marginal (i.e. about a .10 absolute difference between treatment and control groups is the likely result were these programs rigorously evaluated).  While prison programming is certainly one piece of the desistance puzzle, it appears that individuals will desist from crime upon release from prison based on a variety of individual and community level factors not directly related to the availability and/or quality of prison programming.  For this reason, accurate prison-based risk/need classification that links inmates at different risk/need levels to appropriate evidence-based prison programming should be followed by evidence-based reentry programming (Cullen, 2013).  While this report focuses on prison programming, we recognize the critical role of reentry programming and community context (e.g. structure, support, resources, location) in the desistance process.

January 3, 2020 in Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (2)

January 2, 2020

Deep dive into parole history and modern parole practice in California

The New York Times Magazine has this very long new piece on parole under this full headline "Can You Talk Your Way Out of a Life Sentence?: California is giving a second chance to thousands of inmates who had no hope of parole. But first they have to prove to a panel of strangers that they’ve truly changed." The lengthy piece merits a full read, and here is a snippet from its early sections:

The modern idea of basing a prisoner’s release on evidence of his or her rehabilitated character can be traced to 1870, when the inaugural meeting of the newly formed American Prison Association took place in Cincinnati. There, representatives from 25 states, Washington, D.C., and Canada adopted a declaration of principles, among them that prisoners should be rewarded for good conduct and that a “prisoner’s destiny should be placed, measurably, in his own hands.” To achieve this, they argued, “sentences limited only by satisfactory proof of reformation should be substituted for those measured by mere lapse of time.”

By 1922, nearly every state in the union had adopted indeterminate sentencing, in which judges hand out sentences that are formulated as a range of years — a minimum and a maximum amount of time to be served. The responsibility for deciding exactly when in this range an inmate had been rehabilitated enough to be released was vested in state parole boards. (The federal penal system has its own early-release process.)

Over the next half century, it became clear that there was an intrinsic tension between the high-minded notion that inmates should be in control of their own destinies, by deciding whether or not to reform, and the practical difficulty of determining whether they had actually done so. By the 1970s, the discretionary parole system was under attack. Liberals argued that a parole board’s broad leeway allowed racial and class biases to rule unchecked. Conservatives argued that parole boards were releasing dangerous felons who then went on to commit more crimes. A rising national crime rate made the public increasingly dubious of the paternalistic promises of a rehabilitative system.

Over time, some states got rid of parole entirely, while others drastically increased the minimum amount of time an inmate would need to serve before becoming eligible to go before a board. In Georgia, for example, inmates who received a life sentence for a serious crime committed before January 1995 became eligible for parole after seven years. Those who have received a life sentence for a crime committed after June 2006 don’t become eligible for parole until they’ve served 30 years.

But discretionary parole continues to exist in most states, even if it’s often limited to a small pool of longtime inmates whose lengthy periods of incarceration have consigned them to near-oblivion. Conducted by panels of political appointees with varying levels of professional expertise, little accountability and almost unlimited discretion, parole hearings rarely garner attention except when a high-profile inmate comes up for parole.

The United States Supreme Court ruled in 1987 that inmates who have been sent to prison for life have no due-process right to be released unless the wording of their state’s parole statute created one. In the absence of such rights, parole decisions can be remarkably arbitrary. A 2017 survey of paroling authorities by the Robina Institute of Criminal Law and Criminal Justice at the University of Minnesota Law School found that 41 percent of parole boards never make public the logic behind a parole denial, and at least seven states don’t require their parole boards to provide a written explanation for their denial to the parole-seeking inmate. Prisoners are often unable to see the file that the parole board bases its decisions on — in Alabama and North Carolina, inmates are not even allowed to be present for the hearing. While every state except Kentucky and New Mexico allows inmates to have a lawyer at their hearing, very few states will pay for one, which means only a tiny minority of inmates have a lawyer with them at their hearings. “You have about 3 percent of the procedural rights before a parole board as you would in a courtroom,” says Kevin Reitz, the Robina Institute’s former co-director.

All of this makes discretionary parole a far cry from the equation proposed in 1870, in which demonstrated behaviors would result in predictable outcomes. Instead, Reitz has found that parole commissioners are dominated by fears of releasing an inmate who goes on to commit a terrible crime. That’s exactly what happened on March 19, 2013, when a parolee, Evan Ebel, murdered Tom Clements, the executive director of Colorado’s Department of Corrections. When he interviewed parole board members in Colorado, Reitz says, he found the specter of that murder loomed over every decision they made: “Board members told me, ‘If I let someone out and he does something horrible, that’s on me.’ ” So parole-board members have little motivation to release inmates, no matter how deserving they seem.

January 2, 2020 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Two jurisdictions to watch closely in 2020 for the future of the US death penalty

Though I am surely biased by my proximity, I do not think I am wrong to have long viewed Ohio as an especially interesting and important state with respect to the modern administration of the death penalty.  And this recent Columbus Dispatch column, headlined "Will the new year bring an end to Ohio’s elusive death penalty?," suggest reasons why the Buckeye State might be an especially interesting potential capital punishment bellwether this year.  Here is how the piece starts and ends:

Among the new year's possibilities, 2020 may see Ohio end its death penalty.  Reason One is that the state has run out of places to buy the substances specified for administering lethal injections.  Reason Two is the colossal cost to taxpayers of defending in the appeals courts virtually every death sentence that Ohio metes out (with some of those costs for compensating public defenders representing, as is only right, death row inmates).

As to practicality and cost, two of Ohio's most powerful leaders, Republican Gov. Mike DeWine and Ohio House Speaker Larry Householder, a Republican from Perry County's Glenford, have expressed serious concerns.  The unavailability of execution drugs means, in practice, that Ohio is facing a de facto moratorium on executions.

Meanwhile, Householder said this in mid-December, as The Dispatch reported: "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?"...

In courtroom after courtroom, what an Ohio death sentence might really mean is imprisonment for life — if you can call that a life — without any possibility of liberty. The question is whether Ohio should admit the reality of its death penalty, or, at a cost of millions of taxpayer dollars in legal fees, keep denying the obvious.

During most of the past 15 years when Ohio death penalty stories have been very dynamic, the federal death penalty was largely dormant. But the Trump Administration took efforts to gear up the federal federal machinery of death in summer 2019. Executions were temporarily block by court order right before the end of this year, but this long Intercept article, headlined "In The Shadow Of The Federal Death Chamber, Executions Are On Hold — For Now," highlights how the possible return of federal executions in 2020 may impact folks near the site of the federal execution chamber and in lots of other places.

January 2, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

January 1, 2020

The Principle of Prosocial Punishment

Hello everyone, and thanks, Doug, for inviting me to guest-blog.  I'm Joshua Kleinfeld, and I teach and write about criminal law and procedure, on the one hand, and political, legal, and moral philosophy on the other.  Doug was kind enough to give me a somewhat open-ended mandate with regard to topic, and I thought I’d take the opportunity to do something I’ve always wanted to do: share my inchoate philosophical musings about criminal justice with others—to think aloud and in public, as it were—and thus learn how my half-formed ideas strike other criminal lawyers, find out about relevant literature, uncover strong objections before publishing in more formal venues, and generally invite communication while my ideas are still in diapers.  I would never have done this before tenure.  Even now, I confess to some nervousness.  But, well, here goes…

In an article a few years ago, I was analyzing the roots of America’s harsh and continental Europe’s more mild criminal punishment.  After noting certain patterns of banishment and devaluation on the American side, I found myself writing these sentences: “Crime is supposed to be antisocial; punishment should be prosocial.  But American punishment has morphed into its own enemy: it has become antisocial itself.”  That felt like an epiphany.  In a later piece, I tentatively sketched a principle of punishment entitled, “The Principle of Prosocial Punishment”:

The principle of prosocial punishment holds that criminal punishment should aim, both expressively and functionally, to protect, repair, and reconstruct the normative order violated by a crime while at the same time minimizing the damage to the normative order caused by punishment itself….

Consider the effect on society’s normative order of torturing offenders as a form of punishment. The ordinary objection is that torture violates the human rights of the offender.  [The principle of prosocial punishment] observes that torturing an offender would also have collateral effects on the prevailing moral culture.  A community that tortures as punishment is one in which a set of Enlightenment humanist values related to the infliction of pain will be unable to take hold of the culture or will lose their cultural grip.  Torturing thieves, for example, might succeed in affirming society’s commitment to property rights, but in so doing it would undermine a series of collateral values that are also necessary to maintaining social life.  Torturing thieves would also damage the emotional basis of social life, especially if anyone in the society loves the offender or cares about others like the offender….

The principle of prosocial punishment … thus has both an affirmative, justificatory dimension and a negative, prohibitory dimension.  Affirmatively, the principle means that punishment must be of such a form and such severity as is necessary to overcome culturally the message of the crime.  In its negative, prohibitory dimension, the principle means that punishment cannot itself become antisocial, cannot itself express norms contrary to maintaining shared ethical life…. The fundamental challenge of punishment is thus to take action against offenders sufficient to deny the messages of their crimes without thereby undermining collateral norms. The principle of prosocial punishment centers on that challenge.

Although published, that definition and explanation of the principle was explicitly just a sketch; the book or article entitled “Prosocial Punishment” has yet to be written.  I have high hopes for the principle.  It seems to me that it is distinct from any retributive and any conventionally utilitarian idea of what punishment is supposed to be or do.  Neither desert, nor deterrence, nor incapacitation, nor rehabilitation is punishment's point on a prosocial view.  If the principle is right, the conventional list of four purposes or justifications of punishment must make way for a fifth. 

But those are the giddy thoughts.  Can the principle of prosocial punishment really carry that much weight?  Does it seem obvious or uninteresting to those not in the grip of my assumptions?  Does it seem unhelpful to those engaged in the practical work of criminal justice reform?  Is the definition above—“criminal punishment should aim, both expressively and functionally, to protect, repair, and reconstruct the normative order violated by a crime while at the same time minimizing the damage to the normative order caused by punishment itself”—optimally phrased? 

The question that troubles me most is how to effectively formulate the addition to the list of four purposes or justifications of punishment.  In the published sketch, I wrote, to my embarrassment: “Criminal law judges, lawyers, and teachers, philosophical punishment theorists, and penal codes themselves commonly list four justifications for punishment: retribution, deterrence, rehabilitation, and incapacitation.  Some include a fifth: expressive condemnation.  There should be a fifth principle, but it should be a different fifth principle than 'expressive condemnation.’ The five should be: retribution, deterrence, rehabilitation, incapacitation, and normative reconstruction, where the last is understood according to the principle of prosocial punishment.”  Yuck.  “Normative reconstruction … understood according to the principle of prosocial punishment” is not exactly compelling prose—or even particularly intelligible.  I can't imagine real penal codes, judges, or lawyers talking that way.  How can I fix that?

January 1, 2020 in Guest blogging by Professor Joshua Kleinfeld | Permalink | Comments (9)

Welcoming the a new year with a new guest blogger, Professor Joshua Kleinfeld

One reason my 2019 went out on a high note is because I received a note earlier this week from Professor Joshua Kleinfeld who reported that he had been "working on a set of ideas and jottings about criminal punishment that are ... essentially blog posts looking for a blog."  I was pleased that he thought of this blog as a potential locus for his "ideas and jottings," and regular readers know that I am always eager to utilize this digital soap-box in all sorts of ways to provide a platform for all sorts of voices.

So, I am excited to welcome in 2020 by welcoming Prof Kleinfeld as a guest blogger here.  Prof Kleinfeld has already indicated to me that he has some evocative thoughts on the Supreme Court's work on mens rea issues, as well as "more philosophical musings ... about 'intelligibility' as a principle of punishment."  Needless to say, I am eager to read what he has to say on these topics and perhaps others, and I am pleased to be able to share his writing here.  Prof Kleinfeld noted to me that he looking to initiate conversation around his ideas and jottings, so I hope readers will share my eagerness to interact with him in via this forum.

January 1, 2020 in Guest blogging by Professor Joshua Kleinfeld | Permalink | Comments (1)

Chief Justice's "2019 Year-End Report on the Federal Judiciary" again provides federal criminal caseload highlights

The Chief Justice of the United States always closes out a calendar year by releasing a year-end report on the federal judiciary.  The 2019 version from Chief Justice John G. Roberts can be found at this link, and here are a few sentences that capture the spirit of its timely substantive message:

In our age, when social media can instantly spread rumor and false information on a grand scale, the public’s need to understand our government, and the protections it provides, is ever more vital. The judiciary has an important role to play in civic education, and I am pleased to report that the judges and staff of our federal courts are taking up the challenge.

The report includes an Appendix on the "Workload of the Courts" which includes some notable federal criminal justice caseload data.  Here are excerpts:

In the regional courts of appeals, filings fell two percent to 48,486.... Criminal appeals rose two percent....

Criminal defendant filings (including those for defendants transferred from other districts) [in U.S. district courts] rose six percent to 92,678.  Defendants charged with immigration offenses went up 13 percent, largely in response to an 81 percent increase in defendants accused of improper entry by an alien.  The southwestern border districts received 81 percent of national immigration crime defendant filings.  Drug crime defendants, who accounted for 28 percent of total filings, grew five percent, although defendants accused of crimes associated with marijuana decreased 28 percent.  Defendants prosecuted for firearms and explosives offenses climbed eight percent, continuing an upward trend that began in 2014.  Increases also were reported for filings involving general offenses, regulatory offenses, justice system offenses, and violent offenses.  The number of filings related to traffic offenses and sex offenses decreased....

Cases activated in the pretrial services system, including pretrial diversion cases, rose nine percent to 108,606.  A total of 128,904 persons were under post-conviction supervision on September 30, 2019, a reduction of less than one percent from the total a year earlier.  Persons on that date serving terms of supervised release after leaving correctional institutions changed little, increasing by 9 persons to 113,198.

January 1, 2020 in Data on sentencing, Offense Characteristics | Permalink | Comments (0)

December 31, 2019

Illinois Gov pardons more than 11,000 people convicted of low-level marijuana crimes

As reported in this local article, "On the day before recreational cannabis becomes legal in Illinois, Gov. J.B. Pritzker announced he was pardoning more than 11,000 people who had been convicted of low-level marijuana crimes." Here is more:

“When Illinois’ first adult use cannabis shops open their doors tomorrow, we must all remember that the purpose of this legislation is not to immediately make cannabis widely available or to maximize product on the shelves, that’s not the main purpose, that will come with time,” Pritzker said to a crowd at Trinity United Church of Christ on the Far South Side. “But instead the defining purpose of legalization is to maximize equity for generations to come.”

Pritzker, who has touted the social equity elements of the recreational pot law he signed this summer, was joined Tuesday by state, county and local leaders including Cook County State’s Attorney Kim Foxx, who has already begun the process of clearing the records of those with low-level marijuana convictions in her jurisdiction.

The 11,017 people pardoned by Pritzker will receive notification about their cases, all of which are from outside Cook County, by mail. The pardon means convictions involving less than 30 grams of marijuana will be automatically expunged.

Pritzker and other elected officials said they believe Illinois is the first state to include a process for those previously convicted of marijuana offenses to seek relief upon legalization of cannabis. “This is justice,” said Lt. Gov. Juliana Stratton. “And this is what equity is all about, righting wrongs and leveling the playing field.”...

Officials estimate there are hundreds of thousands of people with marijuana-related convictions in Illinois who could be eligible for relief. Those with criminal convictions can get a copy of their criminal record and start the process, though many of the cases will be automatically expunged by the state in the next couple of years.

The Illinois State Police are searching criminal records to identify eligible cases, which are then sent to the state’s Prisoner Review Board. After the board reviews the cases, the names of those eligible for relief are sent to the governor’s office to be considered for pardon. After Pritzker issues the pardon, the attorney general’s office automatically files petitions on the person’s behalf to expunge the records.

State’s attorney offices across the state are also being notified of eligible cases, which can then be vacated by a local judge. In Cook County, prosecutors are working with California-based Code for America to search for convictions involving less than 30 grams of cannabis. Those cases have resulted in both misdemeanor and Class 4 felony convictions....

Individuals with cases involving 30 to 500 grams of cannabis can also be eligible for relief, but the process won’t be automatic, instead requiring the person to file motions to vacate the conviction, according to the governor’s office.

While a pardon forgives a conviction, an expungement erases it from the public record. When a judge vacates a conviction, it overturns it as if it never happened. When a case is expunged, the case is hidden from public view, but it could be viewed by law enforcement if they obtained a court order.

Many of the elected officials noted that enforcement of marijuana-related offenses have disproportionately affected minorities. The Rev. Michael Pfleger, of St. Sabina Church on the South Side, said the elected officials on the stage had done their job, but it would be up to business leaders in the new industry to provide financial mobility for those individuals. “Employ these individuals," Pfleger said to the crowd. “Give them a job.”

Ald. Walter Burnett Jr., of the 27th Ward, noted that a pardon for an armed robbery conviction decades ago changed his life and allowed him to serve in public office. He invoked Martin Luther King Jr.'s words to describe how he felt when his record was expunged and how others might feel when they hear news of the pardons. “Free at last,” Burnett said. “Free at last. Thank God almighty, they are free at last.”

Cross-posted at Marijuana Law, Policy and Reform.

December 31, 2019 in Clemency and Pardons, Marijuana Legalization in the States, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Looking back on state criminal justice reform and significant reporting of 2019

I fear I may not find time to do a full "2019 blog in review" post in the coming days, though I hope to soon do a post noting some highlights from this past year as I imagine what 2020 might bring in the sentencing universe.   I certainly can find time here to spotlight some other notable "year in review" efforts.  Specifically, a must-read for anyone focused on state-level reforms in this Appeal piece by Daniel Nichanian headlined "From marijuana to the Death Penalty, States Led the Way in 2019: A retrospective on the year that was on criminal justice reform. Seven maps. 16 issues. 50 states."  Here is how this great lengthy piece gets started:

State legislatures this year abolished the death penalty, legalized or decriminalized pot, expanded voting rights for people with felony convictions, restricted solitary confinement, and made it harder to prosecute minors as adults, among other initiatives.

But criminal justice reform remains an uneven patchwork. States that make bold moves on one issue can be harshly punitive on others.  And while some set new milestones, elsewhere debates were meager — and in a few states driven by proposals to make laws tougher.

The Political Report tracked state-level reforms throughout 2019. Today I review the year that was — by theme and with seven maps. And yes, each state shows up.

In addition, I noticed that two notable media outlets that do a lot of great original criminal justice reporting have assembled their own best-of reviews of 2019:

December 31, 2019 in Recommended reading, Who Sentences | Permalink | Comments (0)

December 30, 2019

Seeing the human stories behind the reform numbers one year after passage of the FIRST STEP Act

In this post a few days ago, I noted some notable metrics as we hit the one-year anniversary of the FIRST STEP Act becoming law.  Though numbers provide an important perspective on what the FIRST STEP Act has (and has not) achieved, the human stories behind these numbers are surely what is most significant and poignant.  To that end, I was pleased to see that the folks at #cut50 have assembled a set of materials here highlighting "the human impact of the FIRST STEP Act." 

Included in the #cut50 materials is this notable report titled "#HomeForTheHolidays: A Celebration of Freedom Made Possible by the FIRST STEP Act."  I recommend the report in full because it tells the individual human stories, with pictures, of just a few of the "thousands of people have been freed from federal prisons, reunited with their families, and are contributing back to their communities."  

Another way to get some sense of just some of the individual FIRST STEP Act stories is through a review of some notable posts from my FIRST STEP Act and its implementation archive.  After a full year, of course, there are far too many stories to review effectively in this space.  Nevertheless, here is a round-up of particular posts from 2019 that report on a few especially interesting individuals stories resulting from the passage of the FIRST STEP Act:

December 30, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Recommended reading | Permalink | Comments (0)

Split Second Circuit panel finds 17-year (way-below-guideline) prison sentence in terrorism case substantively unreasonable

On Friday, the Second Circuit released a notable sentencing opinion in US v. Mumuni, No. 18‐1604 (2d Cir. Dec. 27, 2019) (available here).  The start of the panel's majority opinion provides a basic overview of the key issue in the appeal:

In this terrorism case, the Government appeals the substantive reasonableness of the sentence imposed on Defendant‐Appellee Fareed Mumuni (“Mumuni”).  He was convicted of, inter alia, conspiring to provide material support to the Islamic State of Iraq and al‐Sham (“ISIS”) and attempting to murder a federal agent in the name of ISIS.  His advisory sentence under the United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) was 85 years’ imprisonment. The sole question on appeal is whether the United States District Court for the Eastern District of New York (Margo K. Brodie, Judge) erred — or “abused its discretion” — by imposing a 17‐ year sentence, which constitutes an 80% downward variance from the advisory Guidelines range. We conclude that it did. Accordingly, we REMAND the cause for resentencing consistent with this opinion.

Just over 30 pages later, the majority provides this summary of its rulings:

(1) Mumuni’s sentence of 17 years’ imprisonment — which constitutes an 80% reduction from his recommended Guidelines range of 85 years — is substantively unreasonable in light of his exceptionally serious conduct involving a domestic terrorist attack against law enforcement in the name of ISIS.

(2) Where a district court has accepted a defendant’s guilty plea and his allocution to the elements of each charged offense, it cannot make findings of fact during sentencing that contradict or otherwise minimize the conduct described at the defendant’s plea hearing.

(3) Where a sentencing court opts to compare the relative culpability of co‐defendants, it cannot selectively rely on a factor when it serves a mitigating function in one case, but then subsequently ignore the same factor when it serves an aggravating function in the other case.

(4) A defendant’s legally‐required compliance with institutional regulations during his term of pre‐trial and pre‐ sentencing detention is not a substantially mitigating factor for purposes of sentencing.

(5) At Mumuni’s resentencing, the District Court, on the basis of the record that supported Mumuni’s guilty plea, shall accord substantially greater weight to the following 18 U.S.C. § 3553(a) factors: (a) the nature and circumstances of the offense; (b) the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (c) the need for the sentence imposed to afford adequate deterrence to criminal conduct; and (d) the need to protect the public from further crimes of the defendant.

Judge Hall partially dissents, explaining that he thinks that the sentencing court needs to better explain its chosen sentence but making this point at the start of his opinion:

“We set aside a district courtʹs sentence as substantively unreasonable only if affirming it would damage the administration of justice because the sentence imposed was shockingly high, shockingly low, or otherwise unsupportable as a matter of law.” United States v. Douglas, 713 F.3d 694, 700 (2d Cir. 2013) (quotation marks and ellipsis omitted) (emphasis added). As an initial matter, I do not believe the seventeen‐year sentence is shockingly low and, therefore, I must dissent in part.

December 30, 2019 in Booker in the Circuits, Offender Characteristics, Offense Characteristics | Permalink | Comments (1)