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May 30, 2020

"The Case for a Federal Criminal Court System (and Sentencing Reform)"

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

This article proposes the establishment of a federal criminal court system, comprised of separate criminal trial courts, circuit courts of appeal and a National Court of Criminal Appeals, with discretionary review by the Supreme Court.  Compared to the 1970s, when there were many fewer cases per judge than there are today, federal criminal adjudications take twice as long, magistrates take on much greater adjudicatory load, and appellate courts much more frequently forego oral arguments, rely on legal staff, and issue unpublished opinions . A specialized judiciary would significantly enhance trial court efficiency and appellate court capacity to produce quality decisions.  Furthermore, because there would be a superior appellate court devoted to ensuring uniform nationwide rules, such a system could more easily resolve doctrinal conflict on criminal justice issues than the current system, which relies on a Supreme Court that is failing to address most of the conflicts among the circuits. 

Perhaps the most important potential benefit of a division of the civil and criminal systems, however, is that the civil system would function more efficiently once criminal cases, which have docket priority at the trial court level, are diverted.  This article also proposes that this separate federal criminal court system return to a more indeterminate sentencing regime that would shift much of the heavy lifting regarding criminal dispositions from judges to expert parole boards.  This proposal would also lessen the appellate workload and ensure that trial judges in a specialized criminal court are not debilitated by the psychologically demanding analysis that currently accompanies sentencing.

May 30, 2020 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Weekend round-up of array of prison stories and commentary in incarceration nation

As I continue to follow closely the news and commentary surrounding prison and prisoners during this COVID-19 era, I am reminded again and again how jails and prisons (and all the people therein) are inextricably woven into the broader fabric of all of our communities.  Here is a Saturday round-up of a few recent headlines that in various ways reflect this reality:

May 30, 2020 in Prisons and prisoners, Race, Class, and Gender | Permalink | Comments (0)

May 29, 2020

Terrific Prison Policy Initiative coverage of the limits of compassionate release and related pandemic problems

Pyle_compassionate_releasePrison Policy Initiative is a regular must-read for so many reasons in normal circumstance, and PPI has been especially effective with various "briefings" related to prison populations and other matters amidst this pandemic.  I have been remiss by failing to flag all of these on-point postings from the last few weeks

The last of these briefings, which is on the topic of compassionate release and was posted just today, includes a terrific visual from artist Kevin Pyle to help highlight why so very of those who apply for compassionate release get any relief.  Here is part of the text of the posting:

Applying for compassionate release is a lengthy and cumbersome process. Given that those who apply are almost always terminally ill or profoundly incapacitated, the arbitrary nature of this process means many die before their cases are resolved.

The compassionate release process varies tremendously between states (some states even give it a different name, like “medical parole,” “geriatric parole”, etc.), but the basic framework is the same: An incarcerated person is recommended for release on compassionate grounds to prison administrators, who then solicit a medical recommendation, and then administrators or members of the parole board approve or deny compassionate release. Some states allow only family and attorneys to recommend that someone be released on these grounds; others allow incarcerated individuals to apply on their own behalf, or allow prison personnel to do so.

Compassionate release programs are plagued by many shortcomings, including:

  • Requirements that a person be extremely close to death, or so incapacitated that they do not understand why they are being punished.
  • Requiring medical professionals to attest that someone is within six months, or nine months, of death. Health professionals are reluctant to give such exact prognoses, which means prison officials will default to saying “it’s safer just to not let this person go.”
  • Allowing the ultimate decision-makers to overrule recommendations from medical professionals and prison staff (e.g. by refuting or ignoring a medical prognosis).

The compassionate release process is frustratingly obscure not only for applicants, but for reporters, advocates, and others trying to understand the system. In their national survey, FAMM found that only three states are required to publish data on compassionate release grants, and eight other states publish some publicly available data, leaving most Americans in the dark about how often compassionate release is actually used. And despite that fact that FAMM has helpful memos for all fifty states and the District of Columbia detailing eligibility requirements for compassionate release, the application and referral process, the necessary documentation and assessments, and the decision-making criteria, the application process remains an arduous one....

But even when a compassionate release system operates efficiently and fairly, the majority of people in prison are still not eligible for it. As currently constituted, these programs exclude too many people and these systems were never designed for quick responses during a global pandemic. States need to look beyond compassionate release — including expedited parole, and mass commutations — to slow the spread of the pandemic and prevent a needless tragedy behind bars.

May 29, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

"Not Letting Felons Vote Damages Democracy for All Citizens"

The title of this post is the headline of this new Verdict commentary authored by Austin Sarat.  Here are excerpts:

On Sunday, a Florida federal district court struck down a state law requiring people with serious criminal convictions to pay court fines and fees before they can register to vote.  The court found that such a requirement would amount to a poll tax and discriminate against those who cannot afford to pay.  That decision is the latest salvo in two battles: Florida’s recent effort to restore voting rights to felons, and America’s long history of using disenfranchisement as a collateral consequence of criminal punishment.

The latter has a shameful history.  This nation’s longstanding hostility toward criminals and convicts bubbles over in an 1871 Virginia court decision that described prisoners as “slaves of the state.”  As a consequence of his crime, a prisoner has “not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords to him.”

In 2018 the Florida electorate voted to repudiate that history when 65% of the voters supported a proposal to amend the state constitution so that convicted felons who complete “all terms of sentence” could vote. Several months later, the heavily Republican state legislature tried to limit the impact of that amendment. It passed a bill saying that “all terms of sentence” included the discharge of financial obligations such as fines, fees and restitution.  Sunday’s court decision enjoined the application of that law....

Because of the current racial composition of America’s prisons and jails, felony disenfranchisement has had a much greater impact on the democratic participation of citizens of color than that of white citizens.  Yet, in 2002, a different federal court in Florida dismissed a lawsuit claiming that felony disenfranchisement was racially discriminatory....

Florida’s long history of felony disenfranchisement is hardly unique.  The practice of removing voting rights from people convicted of crimes can be traced back to the colonial practice of treating criminals as civilly dead.  And soon after the American Revolution, felony disenfranchisement was written into the law of many of the newly formed states.

Debates about slavery and the aftermath of the Civil War gave added impetus to this practice.  States passed laws in the late 1860s to disenfranchise felons and, in so doing, test the meaning of the Fifteenth Amendment’s extension of voting rights. In the post-war South, white southern Democrats used felony disenfranchisement to deny those rights, invoking historical similarities between the legal statuses of slaves and convicts as justification.

Today, according to a report by the Sentencing Project, nearly 40% of the 6.1 million people disenfranchised by a felony conviction are black....  Currently 48 states and the District of Columbia do not allow felons to vote while they are serving time in prison.  Thirty-one states prevent people on parole or probation from casting ballots.  Four states permanently bar ex-inmates from voting and do not allow restoration of that right, while eight others disenfranchise only people who have committed particularly egregious kinds of crimes.

Sunday’s court decision striking down new barriers erected to limit the number of Florida’s previously disenfranchised population from voting is admirable, but much more needs to be done to ensure that those who commit serious crimes can exercise one of the essential rights of citizenship — the right to vote....  Moreover, if this nation wants prisoners, when they leave  confinement, to return to be productive, well-integrated members of society, it should make sure they have a stake in that society.  Voting gives them that stake.  Ending felony disenfranchisement also would help break the legacy of slavery which continues to haunt imprisonment in the U.S.

The entire country should follow the examples of Maine and Vermont, the only two states that allow people to vote from behind bars and after they are released.  They have done so for more than two hundred years. Canada, Denmark, Spain, and 13 other democracies also permit felons to exercise the franchise even when they are serving time.  They recognize that voting is a right of adult citizens, not a privilege accorded only to some.  Last year legislators in Massachusetts, Hawaii, New Mexico, and Virginia introduced bills to allow all prisoners to vote, a position endorsed by Senator Bernie Sanders during his presidential campaign.

Dissenting in the Richardson case, Justice Thurgood Marshall wisely noted that there is no reason to believe that “felons have any less interest in the democratic process than any other citizen. Like everyone else, their daily lives are deeply affected and changed by the decisions of government.”  And, Justice Marshall was right to remind all of us that the right to vote “is the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.”

May 29, 2020 in Collateral consequences, Race, Class, and Gender, Who Sentences | Permalink | Comments (2)

May 28, 2020

Split Sixth Circuit panel finds above-guideline illegal reentry sentence to be substantively unreasonable

Since Booker made the federal sentencing guidelines advisory and invented a reasonableness standard of review more than 15 years ago, there have been now well over one million federal sentences imposed.  And yet only a few dozen of these million+ sentences have been declared substantively unreasonable by a federal appellate court (even though, by my lights, a good many are truly unreasonable in one sense or another).  Because so few sentences have been found substantively unreasonable, every such decision is blogworthy, and so here I highlight a split Sixth Circuit panel decision handed down yesterday in US v. Perez-Rodriguez, No. 18-4203 (6th Cir. May 27, 2020) (available here). The 15-page ruling is worth reading in full, and here is how the majority opinion starts and its concluding substantive paragraph:

Eduardo Perez-Rodriguez, a citizen of Mexico, was sentenced to 24 months in prison for one count of illegal reentry in violation of 8 U.S.C. § 1326. The district court applied an upward variance that more than doubles the middle of his 8- to 14-month Guidelines range. Perez-Rodriguez challenges the substantive reasonableness of the upward variance and argues that the district court considered facts outside the record in selecting his sentence. Because Perez-Rodriguez’s sentence was substantively unreasonable, we REVERSE the district court’s judgment and REMAND for resentencing....

Because Perez-Rodriguez’s case falls within the mine-run of cases of illegal reentry under the Guidelines, it is subject to closer review to assure that the justification given “is sufficiently compelling to support the degree of variance.” Gall, 552 U.S. at 50.  Based on its upward variance, the district court entered a sentence of 24 months, a 118% increase from the middle of the Guidelines range.  The court’s justification for the upward variance is rooted in Perez-Rodriguez’s “return to the United States after having been previously removed and after having been convicted of reentry after deportation.”  These facts, however, have been accounted for twice in the Guidelines range, both in the criminal history calculation and in the sentencing enhancement under § 2L1.2(b)(1)(A).  Our review of the extent of the upward variance imposed in light of the sentencing goals of § 3553(a) and our caselaw indicates that the court placed too much weight on the § 3553(a) factors concerning criminal history, deterrence, and protection of the public from further crimes of the defendant, and that the court selected the sentence without properly considering sentencing disparities.  Beginning with the correct standard — the Guidelines range, comparing the circumstances in this case to Commission data and our precedent, and applying the § 3553(a) factors show that Perez-Rodriguez’s upward variance was improper and created unwarranted sentencing disparities.  The upward variance imposed was substantively unreasonable.

Here is how the dissent by Judge Murphy gets started:

If I were the sentencing judge in this case, I likely would not have chosen the 24-month sentence imposed on Eduardo Perez-Rodriguez.  He pleaded guilty to illegally reentering this country in violation of 8 U.S.C. § 1326, and his guidelines range was only 8 to 14 months.  My general weighing of the sentencing factors in 18 U.S.C. § 3553(a) would likely place great emphasis on uniformity concerns.  See 18 U.S.C. § 3553(a)(6).  Heavy reliance on the guidelines guards against a system in which each defendant’s sentence turns “on the spin of the wheel that determined the judge to whom the case was assigned.”  Pepper v. United States, 562 U.S. 476, 517 (2011) (Alito, J., concurring in part, concurring in the judgment in part, and dissenting in part).  Yet United States v. Booker, 543 U.S. 220 (2005), gave district judges substantial freedom to adopt competing sentencing views. It allows district courts to depart from a defendant’s guidelines range based on other sentencing factors, including the defendant’s specific circumstances, 18 U.S.C. § 3553(a)(1), or more general penological goals like the need for adequate deterrence, id. § 3553(a)(2)(B).  And, as an appellate judge tasked with implementing Booker’s regime, I do not see a sufficient basis to overturn the district court’s upward variance in this case.  I thus respectfully disagree with my colleagues’ considered contrary opinion.

May 28, 2020 in Booker in the Circuits, Federal Sentencing Guidelines, Sentences Reconsidered | Permalink | Comments (0)

Federal inmate population, as reported by BOP, continues steady decline (which continues my wondering about data)

Another Thursday brings another new check on the federal Bureau of Prisons' updated "Total Federal Inmates" numbers.  In prior posts here and here, I highlighted that, according to BOP's reporting of the numbers, throughout the month of April the federal prison population was shrinking about 1,000 persons per week.  As we now approach the end of May, the new numbers at this webpage continue to show weekly declines this month checking in around 1,200 on average: the population dropped from 170,435 (as of April 30) to 169,080 (as of May 7, 2020) to 167,803 (as of May 14, 2020) to 166,647 (as of May 21, 2020) to now a BOP reported total of 165,575.

I have repeatedly suggestions that a reduced inflow of federal inmates — due to many sentencings and reportings to prisons being delayed — has likely been playing a big role in the significant reported population declines in recent months.  But, in this recent post noting a BOP press release about coming inmate transfers, I wondered if the historic COVID-era decline in the BOP  numbers has been mostly an artifice of 6,800 federal prisoners not being officially "counted" while being held in local detention facilities during the COVID shutdown.  Because this week we have not yet seen a spike in BOP reported inmates, and in fact declines are continuing at a steady pace, I am left to continue wondering just what the heck is going on and what these number now "really" represent about the federal prison population and COVID's impact. 

A few of many prior related posts:

May 28, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

May 27, 2020

With his return to blogging, is Bill Otis no longer a potential nominee for the US Sentencing Commission?

Long-time readers should be familiar with the name Bill Otis, not only because he was for years a regular commentor on this blog, but also because he is a prominent former federal prosecutor who often prominently shared his (tough-on-crime) sentencing perspectives in many media.  We have not heard much from Bill in a few years; his recent quietness seemed a direct result of Bill being tapped to be one of Prez Trump's notable March 2018 nominations to the US Sentencing Commission. 

I surmise that when anyone is a Presidential nominee (or thought likely to be a nominee), it is considered good form for that nominee to stay relatively mum during the confirmation process.  And Bill Otis was not just any nominee: though usually only hard-core sentencing nerds pay much attention to USSC nominations, Prez Trump's entire slate of nominees, and especially the naming of Bill Otis, prompted considerable critical commentary from various sources (covered in posts here and here).  Perhaps in part because these nominees were controversial, the Senate never acted on them in 2018 and the nominations lapsed when the "old" Senate officially adjourned.  But, as noted in this post from January 2019, the folks at FAMM were so troubled by the notion of Bill Otis potentially being nominated again, they produced this press release and sent this long letter to Prez Trump "discouraging the re-nomination of William Otis to the U.S. Sentencing Commission." 

Because Bill Otis was remaining quiet through 2019 and early 2020 amidst all sorts of notable and high-profile federal sentencing stories (from Michael Cohen to Felicity Huffman to Paul Manifort to Roger Stone), I figured the folks at FAMM were right to think there remained a real possibility of Bill Otis being nominated again to the USSC.  But, to my surprise, yesterday Bill started blogging again at Crime & Consequences, and he now has posted these two lengthy new entries on the Flynn kerfuffle: "Five Bad Arguments for Gen. Flynn" and "The Winning Argument for Gen. Flynn."  I consider Bill a friend, and I have previously noted how Bill and I have spent considerable time disagreeing on many sentencing matters without being too disagreeable. 

Especially because the fate of the U.S. Sentencing Commission matters a lot more than the fate of one high-profile, white-collar defendant, I am struck more by the fact that Bill Otis is blogging again after a 27-month hiatus than about his latest posts.  And his blogging leads me to wonder, as my post title indicates, whether this tells us something important about potential future USSC nominations.  With the general election now just over five months away, perhaps everyone, including Bill, is now just assuming we will not get any new USSC nominations until 2021 and until after the 2020 election clarifies or recasts political thinking about federal sentencing law and policy.  But maybe there is even more to this story, and maybe even Bill will tell us in his blogging.  Stay tuned.

Prior related posts:

May 27, 2020 in Campaign 2020 and sentencing issues, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (5)

Reviewing a handful of the latest ugly prison pandemic headlines

I have not done a round-up of stories on the spread of COVID-19 through state and federal prison populations lately, in part because this sad tale has already become just standard bad news.  But some recent headlines and stories from this arena seemed especially worth flagging.  So:

May 27, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (1)

Council on Criminal Justice releases big new reform report titled "Next Steps: An Agenda for Federal Action on Safety and Justice"

I noted in this post this last summer the notable new group working toward criminal justice reform called the Council on Criminal Justice (CCJ).  I flagged here the CCJ's great set of papers and resources taking a close look at the 1994 Crime Bill (which I had a chance to contribute to as noted here); I also flagged here from December a big CCJ report on "Trends in Correctional Control by Race and Sex."  Today, I am excited to see and report on the CCJ's latest (and arguably most important) work, this big new report titled "Next Steps: An Agenda for Federal Action on Safety and Justice."  This press release provides a useful summary of the report and its major recommendations:

Well before COVID-19 surfaced, the Council on Criminal Justice (CCJ) established an independent task force to chart a course for federal action on criminal justice reform.  The pandemic has underscored the urgency of that effort, and today the Task Force on Federal Priorities released a report detailing 15 achievable, evidence-based proposals for change.  If fully implemented, key recommendations would:

  • Eliminate mandatory minimum sentences for federal drug crimes, reducing the prison population
  • Establish a “second look” provision allowing people serving longer sentences -– many of them elderly and infirm –- to ask courts for a sentence reduction
  • Help formerly incarcerated people succeed by sealing certain criminal records from public view
  • Create independent oversight of the federal prison system to improve conditions for incarcerated people and staff, strengthen reentry planning and other services, and hold employees accountable for misconduct
  • Resolve the federal-state conflict over recreational and medical cannabis by providing federal waivers to states that have legalized it
  • Dedicate millions of grant dollars to reducing victimization and trauma in cities most affected by violence...

The 14-member Task Force was established in June of 2019 to build on federal reforms adopted under the FIRST STEP Act, which passed with strong bipartisan support at the end of 2018.  While crime and incarceration rates have dropped, there is broad agreement across the political spectrum that more must be done to make communities safe and guarantee justice — not just by states and localities, where most criminal justice happens, but also by the federal government, which runs the country’s largest correctional system and helps set the tone of the national conversation.

Through their vigorous deliberations, Task Force members zeroed in on reforms that not only target critical needs, but also are politically viable and hold the potential to make the greatest improvements in safety and the administration of justice. Reflecting the commitment of Task Force members to bipartisan, data-driven solutions, all 15 proposals are accompanied by a policy rationale, detailed implementation steps, and a summary of the research and evidence that support them.

Task Force members represent a broad cross-section of stakeholders: former federal prosecutors and defenders; a former mayor and a veteran police leader; experts in prisoner reentry, substance use, and victim rights; and advocates and formerly incarcerated people. Task Forces are strictly independent of CCJ and solely responsible for the content of their reports.  Members are asked to join a consensus signifying that they endorse the general policy thrust and judgments reached by the group, though not necessarily every finding and recommendation.

Regular readers will not be surprised to hear that I am a big fan of a lot of these recommendations, and I actually like this full list of all 15 recommendations even more than those summarized in the press release. In a few subsequent posts, I hope to give particular attention and scrutiny to the various key sentencing recommendations.  For now I will be content to say, good work CCJ!

May 27, 2020 in FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Offense Characteristics, Recommended reading, Who Sentences | Permalink | Comments (2)

The new death penalty: COVID has now killed more than 500 US prisoners and prison staff according to UCLA Law data

In this post a few weeks ago, I noted what might be called a new kind of death penalty for prison and jail inmates in the United States: by killing many hundreds of incarcerated persons, COVID-19 has turned all sorts of other sentences into functional death sentences.  In that prior posting, I flagged that the UCLA Covid-19 Behind Bars Data Project, as of May 11, had tabulated 341 "Confirmed Deaths (Residents)," and I highlighted that this meant COVID in a few months had produced more prisoner deaths than had been produced by carrying out formal death sentences in the United States for the entire period from 2010 to 2020. 

As I put together my prior post, I was thinking about the inaptness of the COVID/capital punishment comparison because the death penalty is not lethal for prison staff.  But sadly, dozens of prison staff have now also been killed as a result of the toxic combination of the coronavirus and modern mass incarceration.  With these additional victims in mind, especially just after Memorial Day, I thought it important to note that, according to this UCLA Law data spreadsheet, we have now passed a notable grim milestone for combined deaths of prison staff and prisoners.  Specifically, as of May 27, the folks at UCLA are reporting a total of 42 "Confirmed Deaths (Staff)" and 459 "Confirmed Deaths (Residents)."

Of course, 500 is just a round number and every single one of these deaths is individually sad and disconcerting.  I sincerely hope that, somehow, we might be getting past the worst of this pandemic that has (predictably) already been quite lethal for persons in and around prisons and jails.  I also hope I won't have another major lethal milestone to document anytime soon, but it is probably foolish to ever been too hopeful about developments in incarceration nation.

A few prior recent related posts:

May 27, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

May 26, 2020

"Bill Barr Promised to Release Prisoners Threatened by Coronavirus — Even as the Feds Secretly Made It Harder for Them to Get Out"

The title of this post is the headline of this significant new ProPublica piece discussing yet another ugly example of how the Department of Justice acts more like a Department of Incarceration.  I recommend the piece in full, and here are excerpts:

Even as the Justice Department announced that federal prisons would release vulnerable, nonviolent inmates to home confinement to avoid the spread of COVID-19, the agency was quietly adopting a policy that makes it harder for inmates to qualify for release, not easier. The result has been that more than 98% of inmates remain in federal custody, while a handful of celebrity inmates, like former Trump campaign chair Paul Manafort, have been released to home detention.

In two memos, one in late March and a second in early April, Attorney General William Barr directed the Federal Bureau of Prisons, which is part of the Justice Department, to begin identifying inmates who could safely be released to home confinement — essentially house arrest. They instructed prison officials to grant “priority treatment” to inmates deemed to present minimal risk to the public.

Separately, however, the Bureau of Prisons had drafted a 20-page policy document this year that altered a standard adopted only a year ago and made it harder for an inmate to qualify as minimum risk.

ProPublica obtained a copy of the document, which does not appear to have been finalized, and its existence surprised and baffled lawyers, prison reform advocates and inmates interviewed for this article....

The Bureau of Prisons’ reliance on the unpublished policy document has exacerbated widespread puzzlement about how the agency is implementing Barr’s home-confinement order. “There’s been nothing but confusion,” David Patton, the chief federal public defender for the New York City area, said. “We’ve received a steady stream of questions from clients about their scores, and we have no answers, because BOP doesn’t give us any.”

Fewer prisoners have been released than was expected when the attorney general made his announcement, lawyers say. About 3,050 inmates have been moved to home confinement as of May 21, Bureau of Prisons records show. That’s around 1.8% of the people under the bureau’s supervision. That figure is significantly smaller than the roughly 20% of inmates who fall into the minimum risk category (though it’s not automatic that all of them would qualify for release) under the 2019 rules.

The slow pace of prisoner releases has begun to attract attention. On May 19, a federal judge accused officials at the Elkton Federal Correctional Institution in Ohio — the site of a deadly coronavirus outbreak cited by Barr in his order — of moving too slowly to release inmates and “thumbing their noses” at Barr’s directive. He instructed them to expand the class of inmates eligible for home confinement by including inmates not only with minimum-risk scores, but also those said to have a low risk. The Justice Department has asked the Supreme Court to halt the order.

At the urging of Sens. Dick Durbin, D-Illinois, and Chuck Grassley, R-Iowa, who co-authored the First Step Act, the Justice Department’s inspector general has agreed to examine the scope of Barr’s directive as well as the Bureau of Prisons’ compliance with it and the agency’s overall response to the pandemic.

May 26, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Noticing COVID impacts through drug supply chains and enforcement

I doubt there is a single area of life not impacted by the global pandemic, and thus these recent next stories about impacts on the drug trade and enforcement are not shocking though still interesting:

The NPR story summarizes some of the findings in this big new "Research Brief" coming from the United Nations titled "COVID-19 and the drug supply chain: from production and trafficking to use."

May 26, 2020 in Drug Offense Sentencing, Impact of the coronavirus on criminal justice | Permalink | Comments (1)

SCOTUS, by 6-3 vote, refuses to stay original federal judicial order to transfer vulnerable prisoners "out of Elkton through any means"

As reported here by Amy Howe at SCOTUSblog, this afternoon "the Supreme Court denied a request by the federal government to put a temporary hold on an order by a federal government that could lead to the release or transfer of over 800 inmates from a federal prison where nine inmates have died from COVID-19."  But, as she further explains:

The inmates’ victory, however, appeared to be mostly procedural and likely fleeting: The court explained that the government had not asked them to block the district court’s most recent order, and it indicated that the government could return to the Supreme Court to 'seek a new stay if circumstances warrant'.” Moreover, three justices – Justices Clarence Thomas, Samuel Alito and Neil Gorsuch – indicated that they would have granted the government’s request.

Today’s order came in a case filed last month by inmates at a low-security federal prison in Elkton, Ohio. The inmates argued that they face a disproportionately high risk of contracting COVID-19 because they are in such close proximity to other inmates and correctional staff that social distancing is virtually impossible. In an order issued on April 22, the district court instructed officials at the Bureau of Prisons to evaluate elderly and high-risk prisoners for transfer out of the Elkton facility, either through some form of early release (such as home confinement, compassionate release, parole or community supervision) or by moving them to another facility.

The inmates returned to the district court this month to enforce the April 22 order. They stressed that although the BOP had identified 837 inmates as elderly or high-risk, none of them had been released or moved yet: five were waiting for home confinement, while six others had been designated as potentially qualifying for home confinement. On May 19, finding that the BOP had been “thumbing their nose at their authority to authorize home confinement,” the district court ordered the government to “make full use of the home confinement authority,” and to reconsider inmates’ eligibility without using certain criteria – such as the amount of time remaining on an inmate’s sentence – as a categorical bar. The district court also ordered the government to act quickly on applications for compassionate release, and to explain by May 26 why any prisoners who are not eligible for release could not be transferred to another facility “where social distancing is possible.”

The government came to the Supreme Court last Wednesday, asking the justices to put the district court’s April 22 order on hold while it appeals to the U.S. Court of Appeals for the 6th Circuit and, if needed, the Supreme Court. In a filing by U.S. Solicitor General Noel Francisco, the government argued that allowing an order that would require the release or transfer of over 800 prisoners could both jeopardize public safety and interfere in the management of federal prisons.

In their brief opposing the stay of the district court’s order, the inmates emphasized that as of May 19, there were 135 active COVID-19 cases among the inmates at the Elkton prison, plus eight active cases among staff members. The only way to lower the risk of infection for inmates and staff is to transfer inmates out of the facility, as the attorney general himself has recognized, they argued....

In the one-page order today, the court explained that the government was “seeking a stay only of the District Court’s April 22 preliminary injunction,” even though the district court had “issued a new order enforcing the preliminary injunction and imposing additional measures” on May 19. “Particularly” because the government had neither appealed the May 19 order nor asked the 6th Circuit to put it on hold, the court continued, the Supreme Court would not now block the April 22 injunction, but the government could return to seek a new stay “if circumstances warrant.”

The full SCOTUS order is available at this link.

Prior related posts:

May 26, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

With reopenings, might coming months bring big crime spike (and will modest jail and prison releases be blamed)?

The question in the title of this post is my pessimistic first thought in response to this optimistic New York Times article headlined "A Pandemic Bright Spot: In Many Places, Less Crime." Here are excerpts from the lengthy piece:

The absence of people during the coronavirus pandemic has produced a rare payoff in Fargo and most American cities — a steep drop in major crimes.  “The dynamics of street crimes, of street encounters, of human behavior are changing because people are staying home,” said Philip M. Stinson, a former police officer turned criminal justice professor at Bowling Green State University.

Crime, say those who study it and those who fight it day to day, requires three things — a perpetrator, a victim and an opportunity.  With tens of millions of Americans off the streets, would-be victims and opportunities for crimes have vanished, causing a drop in the number of perpetrators committing infractions.  The dip in crime is compounded by the fact that some police departments have been hampered by quarantines, or have made fewer arrests to limit interactions or to avoid filling the jails.

Arrests in Chicago, where the Cook County jail became one of the nation’s largest-known virus hot spots, were down more than 73 percent during roughly the initial month of the lockdown, said Deputy Chief Thomas Lemmer of the Chicago Police Department.

Crime did not entirely disappear, of course, and some of the worst offenders remained undeterred.  Homicides in numerous cities remained flat or even rose. Burglaries of commercial properties and auto thefts have often multiplied, as criminals exploited shuttered stores and unattended cars.

Young men, considered the most violent demographic, have adopted a certain swagger in many places, police officers and criminologists said. With fewer witnesses around and with the police less likely to stop them, they feel less vulnerable to being caught. The men also find it easier to track down rival drug lords or gang leaders, who are mostly sheltering at home like everyone else.

In Las Vegas, where police said crime fell more than 22 percent during the initial two months of the lockdown, the Strip area, with its crowded nightclubs and bars, had traditionally had its problems with crime. Since it was largely devoid of tourists for weeks, crime migrated to some residential streets....

History indicates that hard times often reduce crime.  Chicago showed a marked drop in murders in 1918, when America faced the devastating Spanish flu, according to records analyzed by Leigh Bienen, a law professor at Northwestern University. After 293 killings in the city in 1917, the number fell to 260 in 1918 before rising to 345 the following year. The flu might not have been the only factor, she said.  Yet other municipalities also reported a decrease.

Crime rates similarly fell during the Great Depression that started in 1929, as well as during the 2008-9 recession, said Richard Rosenfeld, a criminologist at the University of Missouri-St. Louis. “That runs contrary to common perception that as misery spreads, crime rates should go up,” Dr. Rosenfeld said. “When there are fewer potential victims on the streets, there will be few potential crimes, regardless of the increases of the level of economic distress or misery.”...

For the month ending on May 17, most major crimes in New York City were down 21 percent from the same period last year, according to department statistics, although murders were unchanged, burglaries were up, and car thefts jumped almost 68 percent.  There were no clear patterns across all cities, according to Christopher Herrmann, a professor of law and police science at the John Jay College of Criminal Justice. Murders this year were up 14 percent in Philadelphia and 85 percent in Nashville but fell 2 percent in Baltimore and 11 percent in Atlanta.  Nashville was a rare city with increased crime over all....

Besides crime, many police departments reported that they are dealing with a higher number of drug overdoses and suicidal callers.  Police officers in Kalamazoo, Mich., responded to one overdose in December, said David Boysen, assistant chief for public safety.  In April, there were 26, and two of those people died.

One drop in crime statistics may actually be worrisome: Some cities indicated a decrease in both domestic abuse and child abuse calls.  The police in those cities said they suspected that abuse was actually more prevalent, given that most people are stuck at home.  But with no teachers to spot bruises in the classroom, and nowhere for people to escape their abusers, such crimes were less visible, they said.

With the country gradually reopening, experts wonder whether crime will rebound to its previous levels, as perpetrators and victims interact again.  Large American cities last experienced a sustained slide in crime for some 13 years after 1992, said Wesley G. Skogan, a professor emeritus at Northwestern University who studies police programs, calling the reasons “one of the great mysteries of the end of the 20th century.”

Dr. Herrmann, of John Jay College, has a paper set to be published this fall detailing how crime fell near a Bronx subway station during its reconstruction.  It took about two weeks after the station reopened for the numbers to rebound to previous levels, he said, but the post-lockdown rise will likely be slower because people are still hesitant about going outside.

Still, police officers are bracing for what happens next. “I don’t know what the future holds,” said Chris Bailey, assistant chief at the Indianapolis Metropolitan Police Department. “It makes me a little nervous from the crime perspective.”

It is nice to hear that crime has mostly been down during the pandemic, and this reality is especially notable because pre-pandemic crime rates were already relatively low (historically speaking).  But, in addition to highlighting how mixed (and mysterious?) the latest crime numbers are, I wanted this post to flag the real possibility that a crime spike could be coming soon.

Around this time of year under normal circumstances, crime tends to spike because of warmer weather.  This Governing article, looking at lots of crime data from a few years ago, reports: "On average, monthly crime for seven major offense types increased nearly 10 percent between June and August from the rest of the year."  In 2020, the we will have the coming usual summer crime spike combining with more people emerging from lockdown combining with police forces and other crime-fighting infrastructure returning to more normal operations.  These realities lead me to worry about a big crime spike over the next three months, particularly if and when compared to the crime decline over the last three month.

A crime spike is inherently bad for everyone, particularly victims.  But a crime spike in summer 2020 may also create extra challenges for criminal justice reform advocates eager to see decarceration efforts continue to gain momentum.  As this recent post from Michael Rushford at Crime & Consequences highlights, opponents of criminal justice reforms will be quick to try to pin any and all uptick in crimes on any and all decarceration efforts.

Prior related posts:

May 26, 2020 in Impact of the coronavirus on criminal justice, National and State Crime Data | Permalink | Comments (0)

May 25, 2020

Memorializing more drug war casualties: updating the federal drug sentences that COVID-19 turned into death sentences

In this post a few weeks ago, I noted how many individuals among the first federal inmates to die from COVID-19 were in federal prison for drug offenses.  The first documented federal prisoner to die due to the coronavirus was Patrick Jones who died on March 28 and was involved with crack cocaine.  The first female federal prisoner to die was Andrea Circle Bear who died April 28 and was involved with meth.  And the 50th documented federal inmate to die from the virus was Vernon Adderley who died May 11 and was involved in a drug conspiracy.

Because many federal prisoners are serving time for drug offenses, it comes as no surprise that a significant percentage of those who are dying from COVID in federal custody are drug offenders.  But, as I highlighted in my prior post, these kinds of drug war casualties feel especially arbitrary and capricious because such a small percentage of drug offenders are subject to federal prosecution and, thankfully, only a small percentage of this group has been struck down by COVID.  Without diminishing the importance of honoring on this day the those who died serving our nation in traditional wars, I figured today still marked a reasonable time to update my running list of persons who have become casualties of our federal drug war:

Stephen Cino (died April 29: "54 year-old male who was sentenced in the Western District of Virginia to a 292-month sentence for Conspiracy to Distribute Oxycodone Buprenorphine and Fifty Grams or More of Methamphetamine")

Willie Peterson (died April 30: "51 year-old male who was sentenced in the Southern District of West Virginia to a 97-month sentence for Conspiracy to Distribute 100 Grams or More of Heroin and a Quantity of Fentanyl").

Kevin Ivy (died May 2: "59 year-old male who was sentenced in the Eastern District of Texas to a 49-month sentence for Conspiracy to Possess with Intent to Distribute and Distribution of 50 grams or more of Methamphetamine")

Jimmie Lee Houston (dies May 6: "75 year-old male who was sentenced in the District of Alaska to a 120-month sentence for Possessing a Controlled Substance with Intent to Distribute, Possessing a Firearm with Obliterated Serial Number, and Criminal Forfeiture Allegation).

George Escamilla (died May 8: "67 year-old male who was sentenced in the Western District of Texas to a 192-month sentence for Possession with Intent to Distribute 5 kilograms or more of Cocaine and Aiding and Abetting.")

Guadalupe Ramos (died May 10: "56 year-old male who was sentenced in the Western District of Texas to a 210-month sentence for Conspiracy to Distribute 1 Kilogram or More of Heroin")

Juan Mata (died May 11: "59 year-old male sentenced in the Western District of Texas to a 135-month sentence for Conspiracy to Possess With Intent to Distribute 500g or more of Cocaine).

Vernon Adderley (died May 11: "56 year-old male who was sentenced in the Southern District of New York to a 420-month sentence for Narcotics Conspiracy, Conspiracy to Deal in Firearms without a License, and Using and Carrying a Firearm During a Narcotics Crime").

James Lino (died May 13: "65 year-old male who was sentenced in the District of Hawaii to a 34-month sentence for Conspiracy to Distribute and Possess Fifty Grams or More of Methamphetamine with Intent to Distribute").

Calderon Mendoza (died May 14: "60 year-old male sentenced in the Southern District of Florida to a 144-month sentence for Conspiracy to Distribute Cocaine Knowing it Would be Imported into the United States and Distribute Cocaine Using an Airplane Registered in the United States").

Jerry Lynn Dempsey (died May 15: "59 year-old male who was sentenced in the Southern District of California to a 130-month sentence for Conspiracy to Distribute Methamphetamine")

Bich Tran (died May 17: "50 year-old male who was sentenced in the Eastern District of Texas to a 360-month sentence for Conspiracy to Manufacture and Possession with Intent to Distribute Ecstasy, Methamphetamine, Cocaine Base, and Marijuana")

Fidel Torres (died May 20: "62 year-old male sentenced in the Southern District of Texas to a 220-month sentence for Conspiracy to Possess with Intent to Distribute a Quantity in Excess of 1000 kilograms of Marijuana, and Aid and Abet to Possess with Intent to Distribute a Quantity in Excess of 1000 kilograms of Marijuana")

These additional 13 deaths, combined with the 13 deaths noted in this prior post, add up to a full 26 deaths of federal inmates who were incarcerated on drug offenses (from a current total of 59 federal prisoner deaths officially reported by the BOP).  Encouraging, there has not been any reported inmate deaths in the last couple of days, and I hope everyone is eager to see these kinds of drug war casualties go away.  

A few prior related posts:

May 25, 2020 in Prisons and prisoners | Permalink | Comments (1)

Is the number of federal prisoners about to spike up as BOP moves nearly 7000 new inmates into federal facilities?

The question in the title of this post is my reaction to this new BOP press release titled "Bureau of Prisons Announces Update on Inmate Movement." The press release is dated May 22, and it starts this way:

The Bureau of Prisons (Bureau) and the United States Marshals Service (USMS) announced today that they will begin movement of approximately 6,800 new inmates who have been committed to the Bureau in recent months.

The Bureau, in coordination with the USMS, has decreased internal movement of inmates by 90% as compared to this time last year.  While inmate movement was significantly curtailed for several months, newly sentenced and newly admitted inmates have been held in local detention facilities across the country.  As the federal judiciary has continued to process new criminal cases and begins to phase-in expanded operations, the Bureau must, on a limited basis, move these inmates to alleviate population pressures in these local detention centers and allow inmates to begin serving their sentences.

This AP article provides addition background, including these details and context:

The inmates will be sent to one of three designated quarantine sites — FCC Yazoo City in Mississippi, FCC Victorville in California and FTC Oklahoma City — or to a Bureau of Prisons detention center.  All the inmates who are being moved will be tested for COVID-19 when they arrive at the Bureau of Prisons facility and would be tested again before they are moved to the prison where they would serve their sentence.

The prisoners have already been sentenced to federal crimes but were unable to be moved from local facilities as the coronavirus pandemic struck over concerns the virus would spread rampantly.... The federal prison system is continuing coronavirus-related restrictions, including a ban on visitors and minimal inmate transfers, at least through the end of June.

Regular readers know I have been tracking and wondering about the historic declines in the federal prison population in the last few months that the BOP has been reporting through its usual BOP weekly "Total Federal Inmates" population counts.  Specifically, as noted here, on April 9, the BOP reported population has already gone down to 173,686 inmates; six weeks later, as noted here, the BOP reported population was down to 166,647.  Notably, that reported difference in the BOP population represent almost exactly a 7000 inmate decline, which seemingly matches up pretty closely with the 6,800 new inmates being held in local detention facilities that are now to be moved into federal facilities.  In other words, it seems possible that what I thought might be an historic COVID decline is really largely just an artifice of 6,800 federal prisoners not being officially counted while being held in local detention facilities. 

Because I find BOP accounting opaque in many ways, I am not sure whether we should now expect to see a huge spike in the official BOP inmate count this week, nor am I sure there is any single predictable accounting metric for just how and why BOP inmate counts will fluctuate either in normal times or in these crazy COVID times.  But these stories provide further confirmation that the massive federal prison system has an extraordinary inflow and outflow of humans in all times.  It is dangerously easy to look at the federal prison population as relatively stable in some periods without realize that many, many thousands of persons move in and out of this system of human caging every year.

May 25, 2020 in Data on sentencing, Scope of Imprisonment | Permalink | Comments (1)

May 24, 2020

Federal judge strikes down Florida's "unconstitutional pay-to-vote system" for former offenders

This Politico article reports on a big new ruling from Florida under the headline "Federal judge strikes down restrictions on Florida felon voting." Here are the basics:

A federal judge on Sunday dismantled Florida’s restrictive felon voting rights law in a ruling that could open the door to hundreds of thousands of new voters being added to rolls just ahead of the 2020 presidential election.  U.S. District Judge Robert Hinkle declared key portions of the state’s felon voting law unconstitutional, ordering the state to put in place a new process that would help people register to vote in the state.

Throughout his 125-page ruling, Hinkle chided the state for a “pay-to-vote” system that he said was Byzantine because, in some instances, former felons could not even figure how much money they owed.  “This pay-to-vote system would be universally decried as unconstitutional but for one thing: each citizen at issue was convicted, at some point in the past, of a felony offense,” the judge wrote.  “A state may disenfranchise felons and impose conditions on their reenfranchisement. But the conditions must pass constitutional scrutiny. Whatever might be said of a rationally constructed system, this one falls short in substantial respects,” he said.

Hinkle’s ruling could lead to a major addition to the state’s voting rolls just months before the election in the battleground state. President Donald Trump, who narrowly won the state four years ago, has made winning Florida a key part of his reelection strategy.  One study done by Daniel Smith, a University of Florida political professor, found that nearly 775,000 people with felony convictions have some sort of outstanding legal financial obligation.

The decision comes nearly a year after the Republican-controlled Florida Legislature passed the law that requires people with felony convictions to pay all outstanding court debts in order be eligible to vote.  Legislators passed the bill after voters approved Amendment 4 to the state constitution, which aimed to end the state’s lifetime ban on voting for most ex-felons.

Hinkle’s ruling did not completely strike down the law, but the judge asserted that requiring people with felony convictions to pay off costs and fees violated the U.S. Constitution’s ban on poll taxes.

The full 125-page ruling is available at this link, and here is how it gets started:

The State of Florida has adopted a system under which nearly a million otherwise-eligible citizens will be allowed to vote only if they pay an amount of money.  Most of the citizens lack the financial resources to make the required payment.  Many do not know, and some will not be able to find out, how much they must pay.  For most, the required payment will consist only of charges the State imposed to fund government operations — taxes in substance though not in name.

The State is on pace to complete its initial screening of the citizens by 2026, or perhaps later, and only then will have an initial opinion about which citizens must pay, and how much they must pay, to be allowed to vote.  In the meantime, year after year, federal and state elections will pass.  The uncertainty will cause some citizens who are eligible to vote, even on the State’s own view of the law, not to vote, lest they risk criminal prosecution.

This pay-to-vote system would be universally decried as unconstitutional but for one thing: each citizen at issue was convicted, at some point in the past, of a felony offense.  A state may disenfranchise felons and impose conditions on their reenfranchisement. But the conditions must pass constitutional scrutiny. Whatever might be said of a rationally constructed system, this one falls short in substantial respects.

The United States Court of Appeals for the Eleventh Circuit has already ruled, in affirming a preliminary injunction in this very case, that the State cannot condition voting on payment of an amount a person is genuinely unable to pay.  See Jones v. Governor of Fla., 950 F.3d 795 (11th Cir. 2020).  Now, after a full trial on the merits, the plaintiffs’ evidence has grown stronger.  This order holds that the State can condition voting on payment of fines and restitution that a person is able to pay but cannot condition voting on payment of amounts a person is unable to pay or on payment of taxes, even those labeled fees or costs.  This order puts in place administrative procedures that comport with the Constitution and are less burdensome, on both the State and the citizens, than those the State is currently using to administer the unconstitutional pay-to-vote system.

May 24, 2020 in Collateral consequences | Permalink | Comments (1)

"Carceral Trauma and Disability Law"

The title of this post is the title of this timely new piece by Benjamin Hattem now posted to SSRN. Here is its abstract:

Traumatized people have claimed the benefits of federal disability law with increasing success in recent years.  Trauma undermines mental health and cognitive functioning, and disability laws entitle individuals with such impairments to robust accommodations and government support.

But this application of disability law has so far overlooked a key site of trauma: America’s sprawling carceral system.  Psychology research has shown that certain experiences that are prevalent during periods of confinement — particularly sexual victimization, nonsexual violence, and long-term isolation — routinely traumatize people who are exposed to them.  This Note argues that the prevalence of such traumatic events in carceral spaces may allow many incarcerated and formerly incarcerated people to qualify as individuals with a disability for the purpose of federal disability laws.  Put another way, this Note asserts that mass incarceration leads to mass trauma, and it suggests that recognizing this trauma would open new avenues of litigation to address the social and individual harms of imprisonment.

Drawing on recent precedent that articulates the relationship between childhood trauma and disability law, this Note proposes that advocates should start litigating these claims on behalf of juvenile plaintiffs.  But ultimately, this Note argues that traumatic experiences during both juvenile and adult incarceration can give rise to disability claims.  Millions of people are currently incarcerated in the United States; understanding carceral trauma and its connection to disability law has the potential to affect the conditions of confinement and postrelease outcomes of an extraordinary number of incarcerated and formerly incarcerated people.

May 24, 2020 in Prisons and prisoners | Permalink | Comments (0)