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March 13, 2020

Eager for stories and thoughts on the impact of the coronavirus on criminal justice, crime and punishment

Blogging will likely be light in the coming days as I go to pick up young adults from shuttered school and figure out what online teaching is going to look like in the foreseeable future.  While I have already blogged here and here on the potential impact of the coronavirus on prisons and jails, the movement toward mass closures of all sorts raises all sorts of new issues for criminal justice administration and broader realities of crime and punishment.  Here are just a few headlines starting to speak to these kinds of issues:

Though many folks likely have much more important things to do now than comment on a blog, I would still be eager to hear stories and thoughts from readers on what they see and predict as current and potential future impacts of the coronavirus on criminal justice, crime and punishment.

March 13, 2020 in Impact of the coronavirus on criminal justice | Permalink | Comments (4)

March 12, 2020

"Valid or Voodoo: A Qualitative Study of Attorney Attitudes Towards Risk Assessment in Sentencing and Plea Bargaining"

The title of this post is the title of this notable new paper with multiple authors now available via SSRN. Here is its abstract:

Prior research largely has explored judicial attitudes toward risk assessment in sentencing.  Little is known about how other court actors, specifically, prosecutors and defense attorneys, make use of risk information at sentencing hearings and during plea negotiations.  Here, we report a qualitative study on the use of risk assessment by prosecutors and defense attorneys in Virginia.  A prior quantitative study (n=70) pointed to a statistically significant difference in how prosecutors and defense attorneys regard the role of recidivism risk in sentencing hearings and in plea bargaining.  Based on the results of the quantitative study, we collected follow-up qualitative data via interview (n=30) to explain this unexpected difference.

Three themes emerged from the interviews: Who is the lawyer’s identified client? (With prosecutors choosing the general public and defense attorneys choosing the particular defendant); Does past behavior strongly predict future behavior? (With prosecutors being more likely than defense attorneys to believe it does); and Is the Nonviolent Risk Assessment a statistically valid tool for assessing recidivism risk? (With prosecutors and defense attorneys equally likely to believe that the tool was no more valid than their own intuitive professional experience).  Virginia is regarded as one of the leading innovators in the use of risk assessment.  Thus, as more states and the federal government adopt a risk-based approach to sentencing, studies on Virginia can provide useful guidance on the implementation process.

March 12, 2020 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Rounding up more coverage of the frightening intersection of incarceration and the coronavirus

In this post last week, I spotlight the handful of articles noting that the coronavirus outbreak could be especially bad news for prisons and jails.  Unsurprisingly, after remarkable public health developments in the US and elsewhere over the last week, the intersection of incarceration and the coronavirus is getting even more attention.  Here is just a small partial sampling of pieces:

March 12, 2020 in Prisons and prisoners | Permalink | Comments (0)

March 11, 2020

Fascinating work by the Marshall Project and Slate to survey "the Politics of People Behind Bars"

The Marshall Project and Slate today released a series of terrific pieces based on a "first-of-its-kind political survey" of the persons who are currently incarcerated.  Here is how this main piece, headlined "What Do We Really Know About the Politics of People Behind Bars?", gets started:

A simple question at a Bernie Sanders town hall last spring sparked a debate new to prime time: Should incarcerated people be allowed to vote? S anders said yes — his home state of Vermont (and its neighbor, Maine) are the only states to give all people in prison that right.  Later, Joe Biden said no.

Yet in a country awash in political polling, the views of those who are most affected remain a mystery: the 2.3 million people behind bars.  Do they want to vote? If given the right, who would they vote for? What issues do they care about most?  No one’s ever really asked.

This is why The Marshall Project partnered with Slate to conduct the first-of-its-kind political survey inside prisons and jails across the country.  Now that criminal justice is a campaign issue and many states are restoring voting rights to those convicted of felonies, we asked thousands of incarcerated people across the country for their opinions on criminal justice reform, which political party they identify with and which presidential candidate they’d support.  We heard from more than 8,000 people. Here’s what we found:

  • A plurality of white respondents back President Donald Trump, undercutting claims that people in prison would overwhelmingly vote for Democrats.
  • Long stretches in prison appear to be politicizing: The more time respondents spend in prison, the more motivated they are to vote, the more they discuss politics, and the more likely their opinions are to evolve.
  • Perspectives change inside prison. Republicans behind bars back policies like legalizing marijuana that are less popular with GOP voters on the outside; Democrats inside prison are less enthusiastic about an assault weapons ban than Democrats at large.
  • Political views diverged by race. Black respondents are the only group pointing to reducing racial bias in criminal justice as a top concern; almost every other group picked reducing the prison population as a top criminal justice priority.

Many respondents’ answers reflected the crucible of their own experiences—offering new insights into issues often discussed from a distance on a debate stage.

Here are links to the companion pieces:

"Millennials, Meth and Mass Incarceration: We asked incarcerated people to weigh in on the biggest issue facing the country today. Here is what they said."

"How We Pulled Off A Groundbreaking Political Survey Behind Bars: More than 8,000 incarcerated people responded."

UPDATE: These two additional article were published from this fascinating survey on Thursday:

"Trump's Surprising Popularity in Prison: Many incarcerated white people said they'd re-elect the president — if given the chance."

"For Those Serving Long Sentences, Politics is a Lifeline: Respondents who’ve spent decades behind bars were more politically engaged than their peers, but they’re also the most cynical."

March 11, 2020 in Prisons and prisoners | Permalink | Comments (0)

With death penalty repeal legislation, Colorado Gov contemplating commutations for three now on death row

This local article, headlined "Gov. Polis Supports Death Penalty Repeal, But He Has A Big Decision To Make Before Signing It," highlights the notable clemency issue facing the new Governor of Colorado. Here are the basics:

After years of debate, the era of capital punishment in Colorado is poised to end any day now with the signature of Gov. Jared Polis.  The Senate has sent over a bill to repeal the death penalty to the governor, meaning it will reach his desk any day. Once the legislature sends a bill over, he has ten days to sign or veto it, or else it becomes law without his signature.

State legislative leaders last month passed a repeal bill in historic votes, but delayed delivering it to the governor for nearly two weeks.  They decided to pause the action, according to House Speaker KC Becker, to give the governor more time to consider a weighty question: what to do about the three men currently on death row. 

The bill does not apply retroactively, leaving it in the governor's hands whether to commute their sentences to life without parole.  “I think there are a lot of discussions going on about clemency in general. And I have no idea what his plans are," Becker said Monday. “There are a lot of people reaching out to the governor about that right now.”

Late Tuesday night though, a spokesman for the governor told CPR News: “The Governor will sign the bill when it arrives and no decision has been made on any individual case."  As governor, Polis has the broad and sole authority to grant clemency in capital cases.

The topic is especially painful within the halls of the Colorado State Capitol.  Two of the state's death row inmates were convicted for the 2005 murders of Javad Marshall-Fields and Vivian Wolfe, the son and future daughter-in-law of Sen. Rhonda Fields.

Fields urged Polis to approach the question thoughtfully.  Both are Democrats.  “I really don’t have anything more to add to what’s already been said … I just hope that the governor would be strategic and thoughtful about the decisions he would be making as it relates to victims and the members that sat on those juries,” she said.

Fields said the governor should “do the right thing” by properly notifying victims’ families if he moves to commute any of the sentences.  The senator was starkly opposed to the repeal of the death penalty.

Polis has showed support for clemency.  He said in 2019 that repealing the death penalty would be “a strong indication that those who are currently on death row should have their sentences commuted to life in prison.”...

The third man on death row is Nathan Dunlap, who murdered four people in 1993 at a Chuck E. Cheese restaurant in Aurora. Former Gov. John Hickenlooper granted him an indefinite reprieve in 2013, a decision that could be reversed by a future governor.

March 11, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Harvey Weinstein sentence to (near max of) 23 years in state prison

As reported in this Hill article, "Harvey Weinstein — for decades considered one of Hollywood's most prominent and powerful producers — has been sentenced to 23 years in prison in his New York sexual assault trial." Here is more:

The prison term handed down by New York Supreme Court Judge James Burke was slightly less than the maximum sentence of 29 years that Weinstein faced.

In an unexpected move, Weinstein spoke ahead of his sentencing, reportedly telling the court he had "deep remorse." But, in an apparent reference to the "Me Too" movement, he said, "I think men are confused about all of this ... this feeling of thousands of men and women who are losing due process."...

Weinstein, 67, appeared in the New York courtroom after being convicted last month on two of five counts of sexual misconduct. While he was found guilty of a criminal sexual act and third-degree rape, he was acquitted on the most serious charges against him. Weinstein had faced up to four years in prison on the rape charge, and between five and 25 years for the criminal sexual act charge.

“We thank the court for imposing a sentence that puts sexual predators and abusive partners in all segments of society on notice," Manhattan District Attorney Cy Vance said in a statement. Weinstein's accusers, Vance said, "refused to be silent, and they were heard." "Their words took down a predator and put him behind bars, and gave hope to survivors of sexual violence all across the world," he said.

Donna Rotunno, Weinstein's attorney, said after the sentencing that she was "overcome with anger" at the term handed down. "Mr. Weinstein never really had a fair shake from day one," Rotunno told reporters, saying his defense team planned to file an appeal....

More than 80 women — including actresses Eva Green, Lupita Nyong'o and Uma Thurman — have accused Weinstein of sexual misconduct, ranging from harassment to rape. Weinstein had maintained his innocence, saying all the encounters were consensual.

Sexual assault allegations against Weinstein in 2017 — and a flood of public allegations of sexual misconduct against many in the entertainment industry that followed — helped spur the "Me Too" and Time’s Up movements and shined a spotlight on systemic sexual harassment. Following his conviction last month, Weinstein was hospitalized in New York after complaining of chest pains. He was later transferred to Rikers Island.  He also faces separate sexual assault charges in Los Angeles.

Prior related posts:

March 11, 2020 in Celebrity sentencings, Sex Offender Sentencing | Permalink | Comments (2)

March 10, 2020

Big group of US Representatives urges Acting Pardon Attorney to make sure "trial penalty" is part of clemency considerations

Via email I received this interesting note headed "U.S. Reps. Ask Justice Dept. to Review Trial Penalties in Clemency Considerations."  The note reports on this bipartisan letter from nearly 50 US Representatives to the Acting Pardon Attorney urging that she use here "authority when reviewing requests for clemency to consider individual criminal sentences that are significantly harsher than the original sentence offered by the prosecuting attorney in exchange for a guilty plea." Here is more from the letter:

These harsher sentences — also referred to as the “trial penalty” — can be imposed when a criminal defendant decides against accepting a guilty plea.  Instead of accepting a guilty plea, a criminal defendant decides to pursue their 6th Amendment right to a jury trial.  The trial penalty results in a significantly longer prison sentence than those imposed on more culpable defendants who voluntarily waive their constitutional right to a jury trial.

The “trial penalty” also impacts the criminal justice system when criminal defendants plead guilty to avoid a threatened or perceived consequence of going to trial.  These criminal defendants may have valid claims or a defense that could be raised at a trial.  However, these defendants are made aware of or are advised that taking the chance to go to trial could lead to unduly harsh penalties.

Harsher trial sentences have been used to deter people from exercising their 6th Amendment right to a trial.  A 2018 study by the National Association of Criminal Defense Lawyers found that 97% of criminal cases are resolved in a plea.  This strongly suggests that the risk of going to trial is too great for all but 3% of federal criminal defendants.

We therefore request that, when reviewing individual petitions for clemency, you request information from U.S. Attorneys on what sentencing offers were extended to the defendant as part of any plea deal.  This information can be compared with the sentence that the criminal defendant received to determine if they received a “trial penalty.” The “trial penalty” should be considered in clemency petitions by the President.

I am very pleased to see reference to the big 2018 NACDL report (blogged here), especially because it provides another to promote follow-up 2019 Federal Sentencing Reporter double-issue that included 16 original pieces on various aspects of "The Trial Penalty" (first blogged here).

A few prior related posts:

March 10, 2020 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Inmate Constitutional Claims and the Scienter Requirement"

The title of this post is the title of this new paper available via SSRN authored by Ann Woolhandler and Michael Collins. Here is its abstract:

Scholars have criticized requirements that inmates prove malice or deliberate indifference to establish constitutional claims against corrections officials.  The Eighth Amendment currently requires that convicted prisoners show that a prison official acted “maliciously or sadistically” to establish an excessive force claim, and to show that an official acted with subjective “deliberate indifference” to make out a claim of unconstitutional prison conditions. Similar requirements can apply with respect to claims by pretrial detainees whose claims are governed by substantive due process rather than the Eighth Amendment.

Scienter critics have argued for use of an objective reasonableness standard for all inmate claims, including those brought by convicted prisoners under the Eighth Amendment as well as pretrial detainees.  This Essay argues that the scienter requirements are more justified than the critics claim.  The scienter critics argue that the Court has based its state of mind requirements on a mistaken notion that punishment requires a purpose to chastise or deter.  Intentions to chastise and deter, however, remain central to the concept of punishment, and the reference to other purposes of punishment does not suggest dispensing with a culpable state of mind requirement in inmate suits against corrections officials. Scienter requirements, moreover, may be justified apart from a notion of punishment — both by reference to the need to maintain order in prisons and to distinguish constitutional violations from ordinary torts.  State of mind requirements, moreover, do not pose the impenetrable barrier to liability that the critics claim. This is particularly true in systemic conditions cases — the cases that have the most promise of improving the lives of inmates.

March 10, 2020 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Harvey Weinstein requesting (mandatory minimum) five-year prison sentence

As reported in this CNN piece, headlined "Harvey Weinstein's attorneys ask for him to receive the shortest possible prison sentence," defense attorneys have now filed their sentencing arguments a notable 7-page letter before the judge's scheduled sentencing on March 11.  Here are the basics:

Harvey Weinstein's defense attorneys are requesting a five-year prison sentence, the minimum for his first-degree criminal sexual act conviction, according to a sentencing letter provided by his spokesman.

His attorneys wrote in the letter to Judge James Burke that Weinstein's personal charitable giving, advanced age, medical issues and lack of a criminal history should lead to a lower sentence. They wrote that his life "has been destroyed" since the publication of an article in The New Yorker in October 2017 that alleged systemic abuse of women in the entertainment industry. "His wife divorced him, he was fired from The Weinstein Company, and in short, he lost everything," the attorneys wrote.

Weinstein, 67, was convicted of first-degree criminal sexual act and third-degree rape in a New York courtroom in late February based on accusations by Miriam Haley and Jessica Mann. He was acquitted of two more serious charges of predatory sexual assault, which could have come with a life sentence.

The movie producer faces a minimum of five years and a maximum of 25 years in prison for the criminal sexual act charge, and he faces up to 4 years in prison for the rape charge. His sentencing is scheduled for Wednesday.

The Manhattan District Attorney's office argued in an 11-page court filing last week that Weinstein should receive a sentence that "reflects the seriousness of defendant's offenses." He led a "lifetime of abuse towards others, sexual and otherwise," prosecutors argued, and they highlighted three dozen uncharged incidents and accusations. "Starting in the 1970s, he has trapped women into his exclusive control and assaulted or attempted to assault them," prosecutor Joan Illuzzi-Orbon wrote in a letter. Noting that sentencing isn't limited "to the evidence at trial," Illuzzi-Orbon wrote that Burke has "wide discretion" to consider everything known about the defendant when the judge imposes his sentence on the disgraced movie mogul.

However, Weinstein's attorneys argued that the prosecution's request to consider 36 alleged bad acts in sentencing is "inappropriate," adding they intend to expound upon these issues at sentencing....

In the letter, Weinstein's attorneys said his medical issues mean any sentence above five years would effectively be a life sentence. "Given his age and specific medical risk factors, any additional term of imprisonment above the mandatory minimum — although the grave reality is that Mr. Weinstein may not even outlive that term — is likely to constitute a de facto life sentence."...

The attorneys said the trial "did not fairly portray who he is as a person," saying "his life story, his accomplishments, and struggles are simply remarkable and should not be disregarded in total because of the jury's verdict." Besides noting his commercial success and contributions to the entertainment industry, the attorneys highlighted Weinstein's philanthropic endeavors, including that he was an organizer for a 9/11 benefit concert that raised $100 million. The attorneys wrote that Weinstein "always remained involved in the forefront of various social justice causes" during his career.

The defense cited that he has no criminal history and wrote that in providing this information "do not in any way intend to denigrate the seriousness of the conduct for which he was found guilty," adding his background "should be given substantial consideration in reaching a just and appropriate sentence."

The full defense letter is available here, and sentencing fans may be especially interested in the last couple of pages in which the defense makes the case against consideration of uncharged conduct at sentencing. Here are excepts from this portion of the letter:

The People now ask this court to rely on more uncharged conduct in fashioning what they surely hope will be a draconian sentence.  To that end, by and large, the People ask that your honor consider 36 alleged bad acts in arriving at an appropriate sentence.  We submit that this request is inappropriate and intend on expounding upon these issues at sentencing.

First, these allegations have not been admitted, proven, or subject to adversarial testing in any meaningful manner and for the most part mirror allegations made by the People in other filings.  Reliance upon the People’s proffer would be improper.

Second, even under the federal standard, which does not apply, the People neglect to mention that under 18 U.S.C. § 3553(a) (the “3553(a) factors”), or at least the ones it tendentially cites, federal courts are not permitted by Due Process to consider whatever unsupported conjecture the People ask it to.  Rather, in order for “relevant, uncharged conduct” must be proven by a “preponderance of the evidence” standard” before a sentencing court can give it any weight or effect.  See United States v. Cordoba-Murgas, 233 F.3d 704, 708 (2d Cir. 2000)...

Third, the alleged bad acts cited by the People do not constitute “relevant conduct,” and thus, even in federal court, and even if proven, would not be proper for consideration at sentencing....

Fourth, in the course of the People’s efforts to bootstrap these allegations to its sentencing request, it is unclear if it has met requirements under both C.P.L. § 245.20(1)(k) and Brady v. Maryland, 373 U.S. 83 (1963)Brady applies equally to material relevant to both guilt itself as well as punishment....

Finally, as the court observed, all of the People’s evidence was vigorously contested at trial.  To add weight to a sentence based upon mere allegations, some of which predate even Ms. Sciorra’s rejected claims, would violate Due Process.

Based on the foregoing, Mr. Weinstein, through counsel, requests the Court expressly disregard the People’s request to use these alleged other bad acts as a basis for it sentencing determination as set forth in its March 6, 2020 letter.

Prior related post:

March 10, 2020 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences | Permalink | Comments (1)

March 9, 2020

"Data Collected Under the First Step Act, 2019"

The title of this post is the title of this notable new document that the Bureau of Justice Statistics released this morning.  The document reports a range of data about the federal prison system, and here are excerpts from the start of this document:

The First Step Act of 2018 (FSA) requires the Bureau of Justice Statistics (BJS), through its National Prisoner Statistics program, to collect data from the Federal Bureau of Prisons (BOP) on a number of topics and to report these data annually.  BJS is required to report on selected characteristics of prisoners, including marital, veteran, citizenship, and English-speaking status; educational levels; medical conditions; and participation in treatment programs.  Also, BJS is required to report some facility-level statistics, such as the number of assaults on staff by prisoners, prisoners’ violations that resulted in time-credit reductions, and selected facility characteristics related to accreditation, on-site health care, remote learning, video conferencing, and costs of prisoners’ phone calls.

The statistics in this report are for calendar year 2018, which is prior to the enactment of the FSA, and were collected in 2019.  Data for 2019 will be available from BOP in the second half of 2020.  Unless otherwise noted, all counts in this report include federal prisoners held in correctional facilities operated either by the BOP or by private companies contracted by the BOP.  Other reporting required by the FSA, such as the establishment of new methods by BOP to score risk-assessment or recidivism-reduction programs, will be included in BJS’s annual reports when data become available.

Key findings....

  • At year-end 2018, a total of 80,599 prisoners — or 45% of all BOP prisoners — were the parent, step-parent, or guardian of a minor child (dependents age 20 or younger, per BOP definition).
  • At year-end 2018, a total of 51,436 prisoners (about 29% of all BOP prisoners) had not attained a high-school diploma, general equivalency degree (GED), or other equivalent certificate before entering prison.
  • At year-end 2018, a total of 23,567 prisoners identified English as their second language (13% of all BOP prisoners).
  • At year-end 2018, a total of 33,457 prisoners were non-citizens (19% of all BOP prisoners)....
  • In 2018, all 122 BOP-operated facilities had the capability for prisoners to use video-conference technology to participate in judicial hearings, foreign embassy consultations, reentry-related communication from probation offices, pre-reentry preparation, disciplinary hearings, and the Institution Hearing Program....
  • A total of 87,628 prohibited acts occurred in BOP-operated facilities during 2018, of which 39,897 were committed in medium-security facilities (45%).
  • A total of 55,361 individual prisoners committed the 87,628 prohibited acts.
  • During 2018, there were 1,270 physical assaults on BOP staff by prisoners, with 21 of the assaults resulting in serious injury to the staff member.

March 9, 2020 in Data on sentencing, FIRST STEP Act and its implementation, Offender Characteristics, Prisons and prisoners | Permalink | Comments (2)

SCOTUS grants cert on a Mississippi case on the application of Miller to replace dismissed Malvo case

In this new order list, the Supreme Court this morning granted certain in one case, Jones v. Mississippi, No. 18-1259.  Here is the straight-forward question presented in Jones' cert petition:

Whether the Eighth Amendment requires the sentencing authority to make a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole.

As explained in this post and this post, after Virginia enacted new legislation to make all juvenile offenders eligible for parole, SCOTUS had to dismiss, more than four months after oral argument, the Malvo case which concerned whether infamous DC sniper Lee Malvo was constitutionally entitled to be considered for resentencing for a series of murders committed when he was 17.  It was expected that the Justice would be inclined to take up a "replacement case," and that now appears to be the Jones case.

Notably, the facts and legal realities surrounding the Jones case are strikingly different that the Malvo case.  Lee Malvo was just shy of 18 when he was involved is a high-profile series of thrill killings; Brett Jones had just turned 15 when he stabbed to death his grandfather in an altercation in which Jones claimed (unsuccessfully) he acted in self-defense.  In addition, the Malvo case involved the extra complications of federal habeas review of (unclear) state procedures; the Jones case involves a direct appeal from the state court on the question of what process or finding is required to impose a discretionary life without parole sentence on a juvenile killer.

Because of the somewhat simpler facts and simpler procedural posture, it would seem that Jones will present an interesting opportunity to essentially relitgate a range of issues left behind in the wake of the Miller and Montgomery cases.  I suspect some amici may argue, for example, that is is now time for the Eighth Amendment to be interpreted to categorically ban all juve LWOP (or at least to ban all LWOP sentences for crimes committed under the age of 16).  Some other amici might argue, however, that no particular finding or process should be required for before any juve LWOP sentence is imposed despite suggestions otherwise in Montgomery.

Importantly, because of the timing of all these developments, the oral argument in this case will not be until the Fall and we ought not expect an opinion before early 2021.

March 9, 2020 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

March 8, 2020

Making the case for an improved and independent federal clemency process

Cynthia Roseberry, who testified this past week at a House hearing about clemency, has this extended Hill commentary on the topic under the headline "If applied equitably, clemency power can begin to fix damage caused by a broken system." Here are its closing passages:

The clemency process must be completely independent of the system employed to incarcerate millions of people.  A first step is an independent commission with representation from all stages of the criminal justice system, including those who are formerly incarcerated, prosecutors, defense lawyers, corrections experts, and members of the public with appropriate resources to review the inevitable deluge of petitions from the masses.  Independence would ensure that one actor could not put a thumb of the scales of justice, as is the case in our current system, where the same person who prosecuted the case in the Department of Justice has this power.

This commission would promulgate clear and equitable criteria for release.  Applicants would have notice of the evidence necessary to successfully support a petition for clemency. Newly incarcerated persons would have an incentive to immediately work to achieve necessary rehabilitation.  The general public would understand and believe that the system is just and broadly available, and not reserved for a privileged few under a secret process.

Paramount among the criteria would be the consideration of anyone suffering under a sentence because of a failure to retroactively apply reform.  If we, the people, determine that we are no longer willing to seek incarceration for certain acts, then those who were previously incarcerated for those acts must go free in order for equal justice under the law to have meaning. Categorical clemency could be granted, for example, to those serving enhanced sentences where the penalty no longer applies and for those serving long sentences because of a trial penalty after electing to exercise their constitutional right to trial. Although there is a mechanism for compassionate release, it is underutilized and when employed, release is often denied.  The clemency commission could be used to clear this backlog of the elderly or inform who deserves to be released.

The executive has the opportunity to remove the scourge of mass incarceration from our justice system.  That scourge informs one in three black boys born today that they can expect to be incarcerated.  That scourge prevents $80 billion from being spent on their education because it is being spent to incarcerate.  When historians look back on what we did during our watch, let them record that we were enlightened; may they extol the virtue of our quest for equal justice for all and may they marvel at the expediency with which it was achieved.

March 8, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"The Janus Face of Imprisonment: Contrasting Judicial Conceptions of Imprisonment Purposes in the European Court of Human Rights and the Supreme Court of the United States"

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

This paper considers how the Supreme Court of the United States (SC) and the European Court of Human Rights (ECtHR) apply, interpret and frame abstract imprisonment purposes, and how they view their relevance to prison conditions, while discussing the constitutionality of prison conditions.  The paper argues that the SC and the ECtHR view, conceptualise and interpret the purposes of imprisonment differently.  Regarding the purposes of retribution and rehabilitation specifically, the analysis presented in the paper exposes a ‘Janus face’, meaning that each purpose can, and is, interpreted in two different, and almost contrasting ways. 

The paper offers three themes regarding the conceptualisation of imprisonment purposes by the SC and the ECtHR: First, the relationship between the purposes of sentencing and imprisonment along the penal continuum, and the role of rehabilitation in a prison regime: should sentencing purposes be relatively static during their implementation in prison, meaning that retributive-oriented sentencing purposes should be pursued (SC), or should they conversely progress with the passage of time, from retribution to resocialization as the primary purpose of imprisonment (ECtHR).  Second, the meaning of retributivism in regard to prison conditions: should prisoners pay a debt to society by suffering in restrictive prison conditions (SC), or is retributivism achieved by atonement and by finding ways to compensate or repair harms caused by crime (ECtHR).  Third, the way in which prison rehabilitation is framed and understood: should prison rehabilitation be seen as a risk management tool aimed purely at lowering recidivism (SC), or as a moral concept grounded in a prisoner’s ability to change his life and belief in personal responsibility for one’s actions (ECtHR).  Possible theoretical implications and general policy implications are considered in the paper.

March 8, 2020 in Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (0)