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June 6, 2020

New (and free) Federal Sentencing Reporter issue on "State Prosecutors: Their Impact on Mass Incarceration and Criminal Justice Reform"

As mentioned in this prior post, the academic publisher of the Federal Sentencing ReporterUniversity of California Press, has responded to the impact of the coronavirus crisis by making all UC Press online journal content free to everyone through June 2020.  I continue to be grateful to UC Press for this move, as it allows me to flag the latest FSR issue and some of the articles therein. This new issue was put together by FSR editor/Prof Nora Demleitner and the title and coverage in her opening article provides an an overview:

State Prosecutors at the Center of Mass Imprisonment and Criminal Justice Reform by Nora Demleitner:

In this Issue of the Federal Sentencing Reporter we turn to the role of state prosecutors in sentencing.  In recent years, both the scholarly discourse and the advocacy community have increasingly focused on the impact prosecutors have had on mass imprisonment and the expansion of the supervision regime.  A new cohort of ‘‘progressive prosecutors’’ have campaigned on the promise of less imprisonment and greater racial equality.  Some have captured the head prosecutor positions in large U.S. jurisdictions, including Chicago, Brooklyn, Boston, Philadelphia, and San Francisco.  They have instituted a host of often dramatic changes. To date, smaller jurisdictions and less urban areas of the country have been little impacted by this prosecutorially driven move toward criminal justice reform.

This Issue highlights the different levels of decision making that are in the hands of prosecutors throughout the criminal justice process.  From the allocation of resources and charging policies to the explicit refusal to ever ask for a death sentence, prosecutorial choices impact the sentences the criminal justice system imposes.  With the ever-growing expansion of the prosecutorial toolbox and impact, increasingly the decisions of district attorneys have repercussions for other aspects of communities, such as the mental health system.  Prosecutor elections can have a vast impact on communities, but Carissa Hessick’s study on prosecutor elections in this Issue highlights how they can be undemocratic and how their importance can be underestimated.

The ongoing crisis surrounding COVID-19, the novel coronavirus that has brought countries, including our own, virtually to a standstill, vividly displays the role prosecutors play in our communities and the impact their decisions have on the welfare and life of those involved in the criminal justice system.  There may be no more powerful indicator of prosecutors’ influence than their ability to prioritize public health concerns during this crisis in order to help thin out jail populations and thereby create greater means to ‘‘social distance’’ behind bars.  Even though local prosecutors play an active role in populating state prisons, their role in decreasing the prison population is more limited, especially when prisons preclude front-end entry through jail transfers.

Here are some of the original articles from the issue:

Reimagining a Prosecutor’s Role in Sentencing by Lauren-Brooke Eisen and Courtney M. Oliva

Local Prosecutor Elections: Results of a National Study by Carissa Byrne Hessick

Prosecutor-Driven “Second-Look” Policies Are Encouraging, but Not a Panacea by Rory Fleming

Bettering Prosecutorial Engagement to Reduce Crime, Prosecutions, and the Criminal Justice Footprint by Assistant District Attorney Sabrina Margret Bierer

A Qualitative Perspective on Alternative Sentencing Practices in Virginia by Anne Metz

June 6, 2020 in State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

June 5, 2020

NC Supreme Court limits reach of repeal of state's Racial Justice Act in capital cases

Over a decade ago, North Carolina enacted a Racial Justice Act that allowed a capital defendant to seek relief on a claim that race was a significant factor in the decision to seek or impose the death penalty in his case. After nearly every person on North Carolina's death row made a claim under this statute, it was repealed by the legislature. Today the North Carolina Supreme Court in North Carolina v. Ramseur, No. 388A10 (N.C. June 5, 2020) (available here), limits the impact of this repeal. The majority opinion in this 6-1 ruling starts this way:

Defendant, Andrew Darrin Ramseur, was convicted of two counts of firstdegree murder and sentenced to death in 2010.  After his trial, defendant filed a motion seeking relief pursuant to the newly enacted North Carolina Racial Justice Act on the basis that race was a significant factor in the decision to seek or impose the death penalty in his case.  Before the trial court ruled on defendant’s motion, the General Assembly amended the Racial Justice Act in 2012 and then, in 2013, repealed the Racial Justice Act in its entirety. The trial court determined that this repeal rendered defendant’s pending motion void and therefore dismissed defendant’s Racial Justice Act claims.  Here we are asked to decide the constitutionality of the retroactive application of the repeal of the Racial Justice Act. For the reasons stated herein, we hold that applying the repeal retroactively violates the constitutional prohibition on ex post facto laws, and therefore we reverse the trial court.

The dissent by Justice Newby starts this way:

The narrow issue presented by this case is whether, as applied to defendant, legislation repealing the Racial Justice Act of 2009 (the RJA) constitutes an ex post facto law. The majority incorrectly answers this question in the affirmative.  The repeal plainly does not qualify as an ex post facto law because it left defendant in precisely the same legal situation as the one he occupied on 16 December 2007, when, according to a jury, he murdered Jennifer Lee Vincek and Jeffrey Robert Peck.  The repeal did not subject defendant to more serious or additional charges for past conduct, nor did it increase the punishment in effect on 16 December 2007.  When properly viewed, the General Assembly intended the RJA to provide a procedural mechanism by which a defendant could collaterally attack a capital sentence.  The General Assembly did not intend to make a substantive change to the death penalty sentencing law. As such, the General Assembly had the constitutional authority subsequently to amend it and repeal it.

June 5, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Encouraging decarceration news from New England has me thinking about tipping points

I was quite pleased and intrigued to see this morning two notable lengthy recent stories about reduced prison populations in two northeastern states. Both pieces merit reading in full, and here are headlines, links and excerpts, with some broader comments to follow:

"Justice Served?  Vermont Considers Corrections Reform to Shrink Its Prison Population

When lawmakers returned to Montpelier in January, one of their top priorities was to reduce the number of people imprisoned by the State of Vermont. They succeeded — but not the way they expected.

The coronavirus pandemic has prompted prosecutors to avoid locking up all but the most serious suspected offenders, and it's led the Department of Corrections to release some inmates who have served their minimum sentences and been deemed low-risk to the community.  As a result, Vermont's prison population has dropped nearly 17 percent since January, from 1,678 to 1,401.

Now, lawmakers are hoping to lock in that progress by returning to the criminal justice reforms they began contemplating in January. "Our numbers are down, so let's really put in the effort to keep those numbers down," said Rep. Alice Emmons (D-Springfield), who chairs the House Corrections and Institutions Committee.

"As CT prison population nears 30-year low, fewer intakes drive declines"

The state’s incarcerated population is on track to drop below 10,000 this month for the first time in nearly 30 years, a milestone accelerated by the global coronavirus pandemic.  Still, the drop in overall prison population — more than 2,000 people, or 16 percent since March 1 — is overwhelmingly the result of fewer prisoners entering the system rather than a sharp rise in releases, a Hearst Connecticut Media analysis shows.

The population of white prisoners declined by 19 percent, while the population of black and Hispanic incarcerated people has fallen by 14 percent, the analysis shows. It’s not clear why that discrepancy happened. Racial and ethnic minorities make up a majority of the overall prison population.

The state Department of Correction has come under pressure to release more inmates nearing the end of their sentences, especially those who are older or medically vulnerable to coronavirus.  And the department has called attention to the declining prison population.

A press release Tuesday claimed significant increases in discretionary releases, and devoted six paragraphs to the release program, including comments from Commissioner Rollin Cook, who said, “The impressive and substantial decrease in our population speaks volumes about the caliber and hard work of our staff, as well as that of our partners in the criminal justice community.”  The department cited a national report showing Connecticut ranked No. 6 among states reducing their prison populations between the end of December, 2019, and early May of this year.

There are remarkable stories and sub-stories in both of these lengthy articles, but the parts I have quoted might provide a sense of why I am thinking about tipping points. I find it remarkable and heartening that a lawmaker in Vermont is quoted as urging the state to keep its (already relatively low) prison population down after the COVID decline.  And it is even more remarkable and heartening that a press release from the Connecticut Department of Correction is bragging about reducing its population more than most other states in the COIVD era.  I sense we have really gotten to the point, at least in some significant quarters, that a rising prison population is viewed as a failure and a reduced population is deemed a success.

A sea-change in attitudes toward imprisonment and prison populations is one part of achieving a tipping point, but so too will be more fundamental structural change.  Part of that structural change may now be happening economically as states are sure to be eager in these new lean budget times to limit expenditures on corrections.  And if serious reforms in policing and punitiveness follows from all the latest calls for racial justice, I really might be ready to start to envision a true new dawn of smarter justice.

June 5, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Bernie Madoff denied federal sentence reduction, but many others receive relief under § 3582(c)(1)(A) on same day

As reported in this Courthouse News Service report, a high-profile federal white-collar prisoners was denied compassionate release yesterday afternoon.  Here are the basics (and a link to the opinion):

Bernie Madoff’s terminal illness will not alter a federal judge’s ruling from just more than a decade ago: The man behind an “extraordinarily evil” Ponzi scheme will die in prison.

“When I sentenced Mr. Madoff in 2009, it was fully my intent that he live out the rest of his life in prison,” Judge Denny Chin, who dealt Madoff’s 150-year sentence before being appointed to the Second Circuit, wrote on Thursday. “His lawyers asked then for a sentence of 12 to 15 to 20 years, specifically with the hope that Mr. Madoff would live to see ‘the light of day.’ I was not persuaded; I did not believe that Mr. Madoff was deserving of that hope. Nothing has happened in the 11 years since to change my thinking."... 

Madoff’s attorney Brandon Sample said his client suffers from end-stage renal disease and other conditions that give him less than 18 months to live.  “Judge Chin recognized today that Madoff’s health is in serious decline and that he is, in fact, terminally ill,” Sample wrote. “Nonetheless, Judge Chin essentially found that because of the nature of Madoff’s crimes — Madoff is beyond redemption. We are disappointed with Judge Chin’s refusal to grant Madoff any compassion.”

The financial criminal will seek clemency from President Donald Trump. “We implore the president to personally consider Madoff’s rapidly declining health,” Sample added....

Letters opposing Madoff’s release showed that [negative victim] sentiment has not ebbed. Prosecutors said that more than 500 victims opposed his release, and only 20 wrote in support.  “I also agree that at age 81, with his declining physical condition, Mr. Madoff probably does not pose a danger to any person or the community,” Chin wrote. “But as the recent victim letters show, many people are still suffering from Mr. Madoff’s actions. I also believe that Mr. Madoff was never truly remorseful, and that he was only sorry that his life as he knew it was collapsing around him. Even at the end, he was trying to send more millions of his ill-gotten gains to family members, friends, and certain employees.”

Madoff is confined to the Federal Medical Center in Butner, North Carolina, which — like many prisons throughout the country — is grappling with the coronavirus.  Neither Madoff’s request nor the ruling mentions the pandemic.

While this 16-page opinion from Judge Chin does not mention COVID, a whole lot of other compassionate release rulings handed down yesterday did.  I figured here it might be useful to highlight a number of the positive rulings from just the same day as this Madoff denial that already appear on Westlaw (and this weekend I will try to compile the more extended list of  positive § 3582(c)(1)(A) rulings from other days):

United States v. McKinney, No. 18-CR-6035L, 2020 WL 2958228 (WDNY June 4, 2020)

United States v. McCall, No. 2:18cr95-MHT, 2020 WL 2992197 (MD Ala. June 4, 2020)

United States v. Burke, No. 4:17-CR-3089, 2020 WL 3000330 (D Neb. June 4, 2020)

United States v. Green, No. TDC-10-0761, 2020 WL 2992855 (D Md. June 4, 2020)

United States v. Rivera-Amaro, No. 1:18-CR-00183 EAW, 2020 WL 3000392 (WDNY June 4, 2020)

I am pretty confident that this list of grants are not all of those that will show up on Westlaw eventually, and I am even more certain that there were a number of federal sentence reductions granted under § 3582(c)(1)(A) yesterday that will not ever show up on Westlaw.  In other words, while high-profile cases like Bernie Madoff will garner headlines, an ever-growing number of federal defendants are garnering sentence reductions thanks to the FIRST STEP Act.

June 5, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences | Permalink | Comments (0)

June 4, 2020

Justice Sotomayor stays federal judicial orders to transfer vulnerable Elkton prisoners pending Sixth Circuit appeal

As noted in this post, last week the full Supreme Court denied, by a 6-3 vote, a request by the federal government to stay a federal district court order to release or transfer vulnerable inmates from the Elkton federal prison.  But this ruling was, in essence, based on a technicality, and today Justice Sotomayor via this order granted the stay the feds were seeking:

IT IS ORDERED that the District Court’s April 22 and May 19 orders are hereby stayed pending disposition of the Government’s appeal in the United States Court of Appeals for the Sixth Circuit and further order of the undersigned or of the Court.

I believe the Sixth Circuit panel is due to hear argument tomorrow on this matter, but this stay enables federal officials to keep moving slowly on moving vulnerable prisoners out of a prison that has had hundreds of COVID cases and a handful of deaths.

Prior related posts:

UPDATE: Amy Howe has this lengthy and effective posting at SCOTUSblog about the Elkton litigation and the stay granted by Justice Sotomayor.

June 4, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

"The Federal Judiciary’s Role in Drug Law Reform in an Era of Congressional Dysfunction"

The title of this post is the title of this notable new article now available via SSRN authored by Erica Zunkel and Alison Siegler. Here is its abstract:

While state drug law reform is moving apace, federal drug law reform has moved much more slowly.  Many, including the Judicial Conference of the United States and the United States Sentencing Commission, have urged Congress to enact substantive federal drug law reform for years.  But Congress has not acted.  As a result, the federal system continues to single out drug offenses for harsh treatment at the front end — the bail stage — and the back end — the sentencing stage — of a case.

This article examines the judiciary’s crucial role in federal drug law reform at the front and back ends of a drug case.  On the front end, judges should encourage the release of more people on bail by closely scrutinizing prosecutors’ motions for temporary detention in drug cases and giving little, if any, weight to the Bail Reform Act’s presumption of detention at the detention hearing stage.  Data shows that the drug presumption is over-broad and does a poor job of determining who is a risk of flight or a danger to the community.  At the back end, judges should issue categorical policy disagreements with the drug sentencing guideline and the career offender sentencing guideline under the Supreme Court’s rationale in Kimbrough v. United States.  These guidelines are not based on empirical evidence and national experience, and therefore do not exemplify the Sentencing Commission’s “exercise of its characteristic institutional role.”  At both ends, judges should emphasize the evidence that the drug presumption, the drug sentencing guideline, and the career offender sentencing guideline are flawed.  While these actions are not a cure for Congress’ inaction, they send a clear message from one co-equal branch of government to another that substantive reform is urgently needed.

June 4, 2020 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

"Criminal Court Reopening and Public Health in the COVID-19 Era: NACDL Statement of Principles and Report"

The title of this post is the title of this notable new report coming from the National Association of Criminal Defense Lawyers.  This press release summarizes some highlights: 

The National Association of Criminal Defense Lawyers (NACDL), with support from the NACDL Foundation for Criminal Justice (NFCJ), today released a comprehensive set of principles and report — Criminal Court Reopening and Public Health in the COVID-19 Era. As explained in detail in the report, “[g]iven the nature of the disease and the manner of transmission, court proceedings, especially jury trials, present a grave risk to all participants, including the public which has a fundamental right to attend.”

“We know from the science that across the nation the characteristics of courtrooms, courthouses, and the proceedings that occur inside them, present precisely the type of settings in which the virus spreads most efficiently — enclosed spaces requiring close proximity for an extended period of time,” said NACDL President and Task Force on Criminal Court Reopening Member Nina J. Ginsberg.  “While NACDL recognizes the inherent tension between the protection of an accused person’s fundamental right to a speedy trial, for example, and the delay necessary to protect the health and safety of everyone involved in jury trials, this statement of principles and report provide a roadmap to minimizing that constitutional burden while protecting the health and safety of all individuals involved in the conduct of a constitutional criminal proceedings in the United States.”

Virtual or remote proceedings are inherently inconsistent with fundamental constitutional rights.  Accordingly, among the recommendations included in the report are that the use of virtual proceedings be limited to the maximum extent possible, both in scope and duration, and only used with the knowing and informed consent of the accused. The report calls for far greater use of pre-trial release and other mechanisms, such as providing the accused with the unilateral right to elect a bench trial where that right does not already exist.

“There are also significant and unacceptable constitutional burdens on the accused that accompany criminal proceedings, live or virtual, in the midst of this uncontrolled pandemic, including on the right to counsel, the right to confront witnesses, the right to due process, and the right to a public trial by a jury representing a fair cross section of the community,” Ginsberg added.

As provided in the report, because of numerous constitutional concerns, the absence of a vaccine or rapid testing, and highly-infectious asymptomatic transmission, the fact is “that resuming criminal jury trials — particularly in areas of significant community-based transmission — would not only be reckless and irresponsible, but would also undermine the truth-seeking purpose of trials given the well-documented and understandable fear, panic, and uncertainty on the part of jurors, witnesses, court staff, deputies, judges, prosecutors, and defense counsel.”

UPDATE: Here are just a few recent press pieces providing some additional perspectives on this topic:

"Judges Worried About Virus' Impact On Upcoming Trials"

"Your right to a jury trial is on hold. Here’s how coronavirus is changing the justice system"

"Judges try to balance legal rights and courtroom health"

June 4, 2020 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing | Permalink | Comments (0)

"Total Federal Inmates," as reported by BOP, drops below 165,000

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 move from May into June, the new numbers at this webpage are continuing to show weekly declines checking in around 1,100 on average: the BOP reported population dropped from 167,803 (as of May 14, 2020) to 166,647 (as of May 21, 2020) to 165,575 (as of May 28, 2020) to now a BOP reported total of 164,438.

I have repeatedly suggested 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 post noting a BOP press release about coming inmate transfers, I wondered if the historic COVID-era decline in the BOP numbers might be mostly an artifice of 6,800 federal prisoners not being officially "counted" while being held in local detention facilities during the COVID shutdown.  But this week shows reported  declines continuing at a steady pace, and so I am left to continue muttering about not "really" knowing just what is represented by the reported federal prison population or about how best to accurately gauge COVID's impact. 

A few of many prior related posts:

June 4, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Donald Trump hinting that he will use his clemency powers on behalf of Roger Stone

Last week, as reported here, "Bureau of Prisons spokeswoman Sue Allison told The Associated Press that [Roger] Stone is supposed to surrender to the Bureau of Prisons by June 30" to begin serving his 40-month federal prison sentence.  But, as this new article highlights, a tweet by President Trump this morning suggest that the Prez plans to make sure Stone never has to sleep at a prison facility:

President Donald Trump on Thursday promised his longtime informal political adviser Roger Stone would not serve time in prison, revealing the convicted Republican provocateur “can sleep well at night” and reprising his fiery criticisms of former special counsel Robert Mueller’s probe.

The pledge from the president came on Twitter, after Charlie Kirk, the founder of the conservative group Turning Point USA, wrote Tuesday that Stone “will serve more time in prison than 99% of these rioters destroying America” — referring to the ongoing nationwide protests over the killing of George Floyd, a 46-year-old black man, by a Minneapolis police officer.  “This isn’t justice,” Kirk added. “RT for a full pardon of Roger Stone!”

Trump went on to share that tweet Thursday morning, writing in his own accompanying message: “No.  Roger was a victim of a corrupt and illegal Witch Hunt, one which will go down as the greatest political crime in history.  He can sleep well at night!”

The president’s social media post represents his latest intervention in Stone’s case and comes after Trump and Attorney General William Barr were widely rebuked by congressional Democrats and career Justice Department officials for involving themselves in the federal law enforcement matter just a few months ago.

Federal prosecutors had urged in February that Stone be sent to prison for roughly seven to nine years for impeding congressional and FBI investigations into connections between the Russian government and Trump’s 2016 campaign.

But after Trump blasted the prosecutors’ sentencing recommendation in a tweet as a “horrible and very unfair situation,” the Justice Department submitted a revised filing that offered no specific term for Stone’s sentence and stated that the prosecutors’ initial proposal “could be considered excessive and unwarranted.” The four attorneys who shepherded Stone’s prosecution proceeded either to resign or notify the court that they were stepping off the case.

I have long been assuming (as some prior posts below reveal) that Prez Trump will use his clemency pen to keep Stone from serving prison time.  But I have also long been wondering what form of clemency Prez Trump might use.  He could provide Stone with a full pardon, of course, which would wipe away the conviction and all its consequences.  But he also could just commute his prison sentence (which, folks may recall, is what George W. Bush did for Scooter Libby).  Or, perhaps least controversially, Prez Trump could simply use his clemency power to order Sone's prison sentence to be served through home confinement (which, folks should realize, is comparable to what's happening for a number of federal prisoners in response to COVID-19 concerns).

Prior related posts:

June 4, 2020 in Celebrity sentencings, Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, White-collar sentencing, Who Sentences | Permalink | Comments (1)

June 3, 2020

STILL ANOTHER REMINDER of exciting DEPC and OJPC sentencing project: "Drafting Contest: An Ohio 'Second Look' Statute"

I warned in this initial posting that I would be repeatedly promoting an exciting new project from a partnership of the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law and the Ohio Justice & Policy Center (OJPC).  The basic details are explained on this webpage, more background appears in this document, and here are the essentials:


A robust national discussion about how best to remedy extreme and unwarranted prison sentences has prompted various new proposed remedies. In hopes of encouraging discussion and debate around the creation of a comprehensive “second-look sentencing provision” in Ohio law, the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law and the Ohio Justice & Policy Center (OJPC), a statewide criminal-justice nonprofit, are sponsoring a legislative-drafting contest for law students and recent law school graduates.

Contest Objective and Deliverable

DEPC and OJPC encourage law students and recent graduates (from class years 2015-2020) to submit (1) proposed language for a new Ohio statutory provision and (2) accompanying commentary to allow courts to take a second look at Ohio prison sentences.  The proposal should address both substance (e.g., when and to whom does it apply) and procedure (e.g., how should such a second look be initiated and decided).  Entrants may, but are not required to, address the public-health issues that have come to the fore with COVID-19 (e.g., the proposal might have a special provision allowing more prisoners to seek resentencing when a public-health emergency has been declared).  Group submissions are acceptable and encouraged.

Contest Timeline and Awards

Submissions are due June 30, 2020.  The winning submission will receive a prize of $2,000, and up to two runner-up prizes of $1,000 will also be awarded.  If a group submission is awarded prize money, it will be divided equally among the groups members.  All winning submissions will be published via DEPC and OJPC’s websites.  The full version of the winning proposal will also be presented to the Ohio Criminal Sentencing Commission at a forthcoming meeting and may be used in DEPC and OJPC’s ongoing efforts to advocate for improvements in Ohio law.

June 3, 2020 in Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Retributive Expungement"

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

Expungement relief was introduced in the mid-twentieth century to reward and incentivize rehabilitation for arrestees and ex-offenders and to protect their privacy.  Recently, many states have broadened their expungement remedies, and those remedies remain useful given the negative effects of public criminal records on reentry.  But recent scholarship has suggested an “uptake gap,” meaning many who are eligible never obtain relief.  Despite broadening eligibility, petitioners face substantial obstacles to filing, pre-hearing hurdles, waiting periods, and difficult standards of review without the assistance of counsel.  And even when expungement is granted, the recipients are basically left on their own to guarantee the efficacy of the remedy.  Some of these attributes of expungement were originally conceived as features, designed to ensure only the most rehabilitated received relief, allowing the state to continue to pursue public safety objectives with public criminal records.  But the cold reality of expungement procedure leaves many petitioners facing insurmountable obstacles that amplify the effects of the punishment originally imposed.

In exploring this reality, this Article illustrates that expungement procedure is stuck in a rehabilitative and privacy-centric paradigm.  While this framework inspired the creation of expungement remedies and recent reforms, it also has justified onerous procedural obstacles and the placing of the burden of persuasion on the petitioner rather than the state.  Outside of automated expungement, which is still relatively rare and restricted to only certain types of petitions, most expungement regimes in substance or through procedure invert what should be the state’s burden to justify retention of criminal records that enable extra punishment by state and private actors.  An alternative theoretical basis for expungement is necessary to convince policymakers and decision-makers of the need for broader substantive and procedural reform.

This Article suggests a different paradigm: retributive based expungement.  It proposes that incorporating retributive constraints that already underlie the criminal system can benefit petitioners.  Plenty of arrestees do not deserve stigma and ex-offenders have done their time, meaning punitive stigma from public criminal records can amount to unwarranted punishment.  A retributive-minded expungement procedure would all but guarantee expungement in the case of arrests, where the desert basis is questionable, and would place the burden of proof on the state for convictions once desert has been satisfied.  As such, this approach can supplement the case for broader eligibility, automated expungement, and favorable pre-hearing procedures that limit the uptake gap.  It also has legal and political viability given that many states already maintain retributivist constraints on sentencing and given that huge swaths of the public perceive desert as a crucial component of any criminal justice issue.  In fact, some states are already moving in this direction and can serve as a model for the rest of the country.  In short, retributivist constraints can trim procedural overgrowth to supplement substantive reforms that already recognize the disproportionate effects of a public criminal record.

June 3, 2020 in Collateral consequences, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (0)

Eight years after Miller and four after Montgomery, many juveniles still waiting for court consideration of their Eighth Amendment rights

The Marshall Project has this lengthy new piece focused on how many juveniles still have not received court consideration of the Eighth Amendment rights recognized a full eight years ago in Miller v. Alabama, 567 U.S. 460 (2012). The article's fill headline captures its essence: "'Juvenile Lifers' Were Meant to Get a Second Chance. COVID-19 Could Get Them First. The Supreme Court gave teens sentenced to life in prison a shot at freedom. Many are still waiting."  Here is how the piece gets started:

Darnell Johnson long believed that he would die alone in a prison cell.  In 1998, a Michigan court sentenced him to life behind bars without the possibility of parole for killing a woman and shooting two others during a botched armed robbery when he was 17, court records show.

Johnson had been in prison for more than a decade when the U.S. Supreme Court issued two rulings, one in 2012 and another in 2016, that said “juvenile lifers” like him must have their sentences reviewed, taking into account that they were not yet adults when they committed their crimes.  In many states, hundreds saw their prison terms shortened or were released.

But Johnson and nearly 1,000 others incarcerated since their youth across the United States are still waiting for a court hearing — and now they face a growing fear that they will lose their lives to COVID-19, the disease caused by the coronavirus, before getting their chance at freedom.

Johnson, 40, who is black, has asthma and hypertension, risk factors for serious complications from the coronavirus.  He is incarcerated at the Gus Harrison Correctional Facility in Adrian, Michigan, one of the nation’s worst prison hot spots with more than 725 confirmed COVID-19 cases as of Monday.  “All hope of being released is fading away every minute, every hour, every day,” Johnson said via a prison email app. “To have made it to the ‘finish line’ only to possibly die from this virus is that much more frightening.”

The United States is the only country in the world that sends children to prison with no chance of getting out, according to The Sentencing Project, a prison research organization. Roughly 80 percent of juvenile lifers are people of color. As the pandemic devastates prisons and jails, some governors, parole boards and prosecutors are releasing some prisoners who were serving short sentences for low-level crimes. The rationale is that they are less likely to re-offend, according to public statements by officials. Juvenile lifers have rarely been mentioned in this conversation.

That omission is misguided, prisoner advocates say. “These are human beings who brain science shows have ‘aged out’ of crime,” said Renée Slajda, spokeswoman for the Louisiana Center for Children’s Rights, a legal advocacy organization. “If you had to pick between people who just got to jail or ones who have decades of good behavior under their belt, which is a safer bet to release?” asked Ashley Nellis, a senior analyst focusing on lifers at The Sentencing Project.

Johnson, for instance, has received just one misconduct ticket during his entire incarceration: in 2001, according to court records.  He also scored a “low” risk rating for violence or re-offending on a corrections department-administered risk assessment, the document shows.  Johnson’s good behavior in prison had given him hope that the 2016 Supreme Court decision, Montgomery v. Louisiana, would apply to him.  The court ruled that because young people’s brains are still developing, along with their awareness of the consequences of their actions, those who had been sent to adult prison for life for crimes committed as children should get an opportunity to be resentenced — a chance to prove they have been redeemed.

When Johnson heard about the decision, he and friends who also were incarcerated as teens were “slapping each other on the back, saying, ‘We made it!’” he said.  Yet his dream of freedom has been deferred nearly five years because of court delays and because his prosecutor, who has the ability to grant him a shorter sentence, has been unwilling to do so.  At a hearing in December, Johnson will have the chance to challenge the prosecuting attorney’s decision, citing the Supreme Court ruling, says his attorney, Sofia Nelson of Michigan’s State Appellate Defender Office.

Johnson is one of about 200 of Michigan’s more than 350 juvenile lifers who have yet to receive a new sentence, according to court and prison records.  That is the most of any state.  Michigan is also third only to Ohio and Texas with more than 3,000 confirmed COVID-19 cases among incarcerated people, according to The Marshall Project’s tracker. Johnson said he has watched his prison friends catch the virus and worries he could be next.

June 3, 2020 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

June 2, 2020

Sixth Circuit panel rules so-called "exhaustion" procedural requirement for sentence-reduction motions under § 3582(c)(1)(A) to be "mandatory claim-processing rule"

A few months ago, I discussed in this post some sloppy Third Circuit panel dicta in Raia on the so-called "exhaustion" procedural requirement for sentence-reduction motions under § 3582(c)(1)(A).  Among my complaints about the ruling in Raia was that the issue had not be directly brought or fully briefed before the Third Circuit in that case.  But today the Sixth Circuit addressed this issue squarely in US v. Alam, No. 20-1298 (6th Cir. June 2, 2020) (available here).  Here is how the opinion begins:

Like many Americans in poor health, 64-year-old Waseem Alam has legitimate fears about the health risks created by the COVID-19 pandemic.  And like many inmates, he has ample reason to fear that a prison exacerbates those risks.  But when Alam moved for compassionate release under 18 U.S.C. § 3582(c)(1)(A), he failed to invoke all of the options for obtaining relief from the prison.  Alam asks us to overlook that reality by finding the requirement non-mandatory or by fashioning an exception of our own.  But because this exhaustion requirement serves valuable purposes (there is no other way to ensure an orderly processing of applications for early release) and because it is mandatory (there is no exception for some compassionate-release requests over others), we must enforce it.  We affirm the district court’s dismissal of Alam’s request without prejudice to filing a new one.

The panel decides (rightly in my view) that the so-called "exhaustion" procedural requirement for sentence-reduction motions is a "claim-processing rule" (and thus not jurisdictional).  But the panel also decides (wrongly in my view) that no "exceptions to mandatory claim-processing rules — waiver or forfeiture — apply here."  The panel in reaching this conclusion makes some reasonable policy arguments:

Even if federal courts possessed a general power to create equitable carveouts to statutory exhaustion requirements, Alam does not show why an exception would make sense in the context of this statute.  Remember that Congress made compassionate release available only to elderly prisoners and those with “extraordinary and compelling” reasons for release. 18 U.S.C. § 3582(c)(1)(A).  For such prisoners, time usually will be of the essence.  That would make nearly every prisoner eligible to invoke “irreparable harm” and eligible to jump the line of applications — making the process less fair, not more fair.

Appending a futility requirement does not improve things.  How could we divine whether the Bureau of Prisons may wish to act on any given petition?  And, in any event, why must we assume that the Bureau of Prisons’ failure to act would render the act of waiting “futile”?  Speed matters, yes.  But accuracy matters too.  Preventing prisoners from charging straight to federal court serves important purposes.  It ensures that the prison administrators can prioritize the most urgent claims.  And it ensures that they can investigate the gravity of the conditions supporting compassionate release and the likelihood that the conditions will persist.  These are not interests we should lightly dismiss or re-prioritize.

These policy arguments, though sound in the abstract, fail to give effect and suggest a lack of understanding for why and how Congress changed the process for compassionate release motions in the FIRST STEP Act.  As I stressed in this prior post what this panel decision ignores, namely all the reasons Congress sought to now enabled district judges to consider the merits of a sentence reduction under § 3582(c)(1)(A) without awaiting even full consideration of a request by prison administrators.  For years, BOP failed to use its authority to seek reductions even in the most compelling of cases, and so Congress decided to district courts could and should assess sentence-reduction requests without BOP serving as any kind of gatekeeper precisely because Congress concluded BOP could and should no longer be trusted to "prioritize the most urgent claims" or to adequately "investigate the gravity of the conditions" supporting a claim

Critically, with the FIRST STEP Act revision, Congress did not even actually require defendants to exhaust the BOP motion-request process before turning to the courts — which is what would have made sense if Congress still trusted the BOP process to some extent.  Rather Congress provided that a sentence-reduction motion could be considered by courts after "the lapse of 30 days from the receipt of such a request."   Put another way, this statute actually does have an express "carveout to statutory exhaustion requirements" in the form of the "lapse of 30 day" provision.  But, so the argument might go, even though Congress did create an exception to BOP exhaustion in the form of a "30 day" lapse requirement, why should courts even consider short-circuiting that express timeline?  Well, in the midst of a pandemic, a timeline intended by Congress to give a prisoner quick access to the court sensibly can and should be sped up consistent with the overall goals of § 3582(c)(1)(A).  But, disappointingly, rather than give full effect to the fundamental interest of Congress in giving ailing prisoners a chance to have speedy access to the courts based on the equities of the case, this panel decision determines that it is good policy to be respectful of BOP interests that Congress itself was eager to de-prioritize.

Prior related posts:

June 2, 2020 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (4)

"Pay to Play? Campaign Finance and the Incentive Gap in the Sixth Amendment's Right to Counsel"

The title of this post is the title of this notable new paper authored by Neel Sukhatme and Jay Jenkins now available via SSRN. Here is its abstract

For nearly 60 years, the U.S. Supreme Court has affirmed that the Sixth Amendment to the U.S. Constitution guarantees felony defendants the right to counsel, regardless of their ability to pay.  Yet nearly all criminal procedure scholars agree that indigent defense as practiced today falls far short of its initial promise.  These scholars frequently cite a lack of political support, insufficient public funding, and a failure to address instances of inadequate legal representation, among other things, as causes for the underlying systemic dysfunction.

We contend that these conventional critiques are incomplete.  Rather, indigent defense systems often fail due to poor design: they do not align publicly funded defense attorneys with their clients’ best interests.  This is particularly true when courts appoint private attorneys to represent indigent defendants for a fee, as is done in hundreds of jurisdictions across the United States.  We explain how such assignment systems create an “incentive gap” that financially motivates defense attorneys to maximize their caseloads but minimize their efforts.

We then show how campaign finance exacerbates this problem.  Specifically, we provide empirical evidence that elected trial court judges and criminal defense attorneys regularly engage in “pay to play,” where judges appoint attorneys who donate to their campaigns as counsel for indigent defendants.  We find trial judges routinely accept such donations, often as apparent “entry fees” from attorneys who have just become eligible for appointments.  These judges, in turn, typically award their donors more than double the cases they award to non-donors, with the average donor attorney earning greater than a 27-fold return on her donation.  Indeed, we find indigent defense appointments can be surprisingly lucrative, with many donor attorneys earning tens or even hundreds of thousands of dollars across the hundreds of cases assigned to them by their donee judges.

Worse, this apparent quid pro quo between judges and defense attorneys appears to directly harm defendants.  We find that defense attorneys who donate to a judge are, if anything, less successful than non-donor attorneys in attaining charge reductions, dismissals, and acquittals, or avoiding prison sentences.  We contend donor attorneys might underperform simply because they take on so many more cases from their donee judges, and hence spend less time on each matter.

Our study is the first empirical analysis of how campaign finance distorts criminal trial court decision-making.  While our data are from Harris County (Houston), Texas — the nation’s third most populous county — we show that pay to play is probably endemic across that state. Indeed, similar problems likely affect millions of Americans, as trial judges who control indigent defense assignments in many other states—including California, Georgia, Maryland, Missouri, North Carolina, and Ohio, among others — accept attorney donations to fund their electoral campaigns.  Unless substantial reforms are made to address the corrosive influence of campaign finance on criminal defense, the Sixth Amendment’s right to counsel will continue to ring hollow for millions of indigent defendants.

The New York Times today has this article about this research under the headline "Campaign Funds for Judges Warp Criminal Justice, Study Finds; Judges in Harris County, Texas, were far more likely to appoint lawyers who had donated to their campaigns to represent poor criminal defendants."

June 2, 2020 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Timely reminders that racial disparities may persist and grow even as the carceral state begins to shrink

The Marshall Project has this notable new piece about arrest rates during the COVID era under the full headline "Police Arrested Fewer People During Coronavirus Shutdowns — Even Fewer Were White: Racial disparities grew in five cities as arrests fell, according to our new data analysis."  Here are excerpts:

As protesters clash with police across the country, they are venting not only their rage about the death of George Floyd at the hands of Minneapolis police, but more broadly their frustration with decades of racial inequality in the American criminal justice system.

These inequalities persisted during the coronavirus outbreak, a new Marshall Project analysis of arrest data found. Even as crime rates fell while much of the country was ordered to shelter in place, arrest data from five U.S. cities suggests racial disparities worsened in March and April.  Across these cities, arrests of white people dropped 17 percent more than arrests of black people and 21 percent more than Hispanic people.

In March, the New York City Police Department made about 13,000 arrests, a 30-percent drop from the same month a year before. While most people in the city were confined to their homes, the changes in arrest practices did not affect residents of all races equally.  White people experienced the largest decreases in arrests, whereas arrests of black and Hispanic people dropped at a much slower rate.

New York is not an outlier. The Marshall Project’s analysis found that arrests in Los Angeles, Baltimore, Pittsburgh and Tucson, Arizona, reflected similar patterns.  As the total number of arrests plummeted through March and April, they didn't drop equally across the board. Arrests of white people decreased far more than the arrests of black and Hispanic people. Though they were much fewer to begin with, arrests of Asians, Native Americans and people of other backgrounds declined faster than arrests of white people.

These disparities in arrests took place during the same time period when some police departments came under fire for how they enforce social distancing orders. In New York City, more than 80 percent of people arrested for violating those orders were black. In major cities across Ohio, black residents were more than four times as likely to be charged with violating stay-at-home orders than their white peers. 

In Los Angeles, New York and Tucson, three cities that break down arrests by the severity of the alleged offense, The Marshall Project found that with each racial and ethnic group, misdemeanor arrests plummeted during the early weeks of the pandemic, while felony arrests, for the most severe crimes, declined slightly.  For example, from February to March, the Los Angeles Police Department made 1,000 fewer arrests for misdemeanor charges, such as driving under the influence or traffic violations. Meanwhile, arrests for felony charges, like aggravated assault and rape, dropped by 100.

These COVID-era data remind me of the data we often now see on marijuana-related arrests in the wake of legalization or decriminalization, where the total number of arrests decline (often significantly) but with racial disparities persisting or even growing.  Here are just a few recent studies on this topic via my coverage at my Marijuana Law, Policy & Reform blog:

Also worth recalling in this context is the notable reality that a number of US states with relatively smaller prison populations often have the most racially disparate prison populations.  This 2016 Sentencing Project report on the topic detailed that the states with the largest disparities in their prison population between whites and blacks were Iowa, Minnesota, New Jersey, Vermont, and Wisconsin.  Notably, all of these states have well below the national average in per-capita prison population.

These numbers do not surprise me because I often notice, in both policies and practices, how disparities and discrimination can find express in the exercise of leniency or mercy.  I see this especially in death penalty administration, when so many different actors in the system (prosecutors, judges, jurors) have formal and/or informal authority to prevent a murderer from being subject to the death penalty.  Disparities can and will result merely not from legal actors being distinctly punitive toward certain defendants, but also from these actors being distinctly willing to act leniently or mercifully toward only certain other defendants.  Other sentencing systems, where prosecutorial charging and bargaining discretion in turn shape judicial sentencing discretion, also surely reflect differential expressions of leniency as well as differential expressions of punitiveness.

I bring all this up not too create cynicism or fatalism about what legal and social change might achieve, but rather to highlight how much work there is to do even as we make progress in reducing the scope and impact of mass criminalization, mass punishment and mass incarceration.  In recent years, I have grown ever more hopeful about the potential, politically and practically, to shrink the carceral state in America.  But the events of this past week provide a critical reminder of our need to keep our eyes on all the prizes that we are aspiring to achieving in this critically important work.

June 2, 2020 in Impact of the coronavirus on criminal justice, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Senate Judiciary Committee about to start "Examining Best Practices for Incarceration and Detention During COVID-19"

At 10:00 am this morning, June 2, 2020, the Senate Judiciary Committee has scheduled this full committee meeting on "Examining Best Practices for Incarceration and Detention During COVID-19."  Here are the scheduled witnesses:

Panel I
Mr. Michael Carvajal
Federal Bureau of Prisons
Washington , DC
Dr. Jeffry D. Allen, MD
Medical Director
Federal Bureau of Prisons
Washington , DC

Disappointingly, as of this writing, there is no written testimony linked from the Senate website from any of these witnesses. If any becomes available later, I will be sure to post it.

UPDATE: I am pleased to see that there is now linked written testimony for all the witnesses listed above.  Here is the written testimony for both BOP witnesses, and here are excerpts on "Current Status" and "Home Confinement":

The Bureau manages the health and treatment of approximately 149,000 inmates in BOP facilities and RRCs.  Over half of our institutions have no COVID-19 positive cases among inmates or staff.  Indeed, two-thirds of our positive cases are in just 7 of our 122 institutions nationwide.  As of June 1, 2020, across all facilities, there are 1,650 federal inmates who are currently COVID-19 positive based on test results.  There are also currently 171 Bureau staff who have confirmed positive test results for COVID-19 nationwide, with 445 staff recovered and returning to work.

In total, from March 1, 2020, the date of the beginning of the national emergency proclaimed by President Trump, until today, 5,323 inmates total have tested positive for COVID19 and to-date, 3,784 have recovered.  More than 80 percent of infected individuals have not become significantly ill.  The number of hospitalized inmates — those who became significantly ill — is currently only 83 in total.  And in fact, the number hospitalized is on a significant downward trajectory (see attached), suggesting that our attempts to mitigate the transmission of the virus is effective.  Regrettably, there have been 68 federal inmate deaths from COVID-19.

To-date, the Bureau’s overall infection rate is approximately 4%, including clinically-probable and suspect cases, and based on the total number of inmates in custody.  The BOP's death rate of those infected is approximately 1.1% and is slightly lower than the US rate of 1.3%.  The BOP's rate of hospitalization has continued to decline over time with only 83 inmates currently hospitalized and only 22 of those on ventilators....

As the pandemic grew more widespread, the Bureau began aggressively screening the inmate population for inmates who were appropriate for transfer to RRC or Home Confinement for service of the remainder of their sentences.  On March 26, 2020 and April 3, 2020, Attorney General Barr issued memoranda to the Bureau directing us to increase the use of Home Confinement, particularly at institutions that were markedly affected by COVID-19, for vulnerable inmates.  The CARES Act, signed by President Trump on March 27, 2020, further expanded our ability to place inmates on Home Confinement by lifting the statutory limitations contained in Title 18 U.S.C. § 3624(c)(2) during the course of the pandemic.  I am pleased to note that we currently have 6,120 inmates in RRC and 6,398 on Home Confinement.  This is an 124% increase in HC from March 26, 2020. There are an additional 985 who are scheduled to transfer to Home Confinement in the coming weeks.  While we continue to make robust strides in these placements to reduce risk of spread to the inmate population and staff, public health and safety must remain our highest priority.  The Attorney General has issued guidance as to which inmates should be considered for home confinement.  Staff are conducting individualized assessments to ensure inmates are appropriate for community placement both from a public safety perspective and given their own specific needs and circumstances.  Additionally, we must ensure inmates who release to Home Confinement have a viable residence in which to reside.

It should go without saying that while we are dedicated to the protection of our inmates’ health and safety, we also have to consider — as the Attorney General’s guidance emphasized — that inmates who presented a risk of public safety because of their criminal acts or other factors cannot be released.  Neither can we release inmates who would be worse off outside Bureau facilities than inside, such as those whose medical conditions could not be adequately cared for by health systems that are themselves overwhelmed by the response to COVID infections in the general community.  Nor can we release inmates who do not have safe housing for themselves or housing that is not subject to appropriate safeguards for home confinement, which is still, after all, a form of incarceration for persons convicted of crimes whereby such persons are still serving a federal sentence.

June 2, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

June 1, 2020

"Prosecutor-Driven 'Second Look' Policies Are Encouraging, But Not A Panacea"

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

This article explains how the dearth of executive clemency and parole has led to some prosecutors reducing terms of incarceration for particular defendants post-sentencing. California has passed the first law to encourage prosecutors to order “second look” hearings for prisoners they deem worthy.  Elsewhere, prosecutors have in rare circumstances renegotiated plea deals to reduce terms of incarceration.  Prosecutor-driven “second look” policies should be considered one of many tools that could help reduce the U.S. incarceration rate.  Such policies will thrive only in localities where reducing incarceration is politically palpable.  The “second look” paradigm is also unlikely to be viable in the federal context, due to skepticism from the Department of Justice.

June 1, 2020 in Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Free download available for "360 Federal Crimes: elements and defenses"

Ed Hagen, who served as Assistant Director at the US Department of Justice Office of Legal Education, sent me this email:

I thought that your readers would be interested to know that for the next three days, June 1-3, the Kindle version of 360 Federal Crimes - Elements and Defenses is a *free* download.

360 FEDERAL CRIMES is a 550-page field guide that covers the 360 most commonly charged federal crimes, including narcotics, firearms, immigration, money laundering, conspiracy, civil rights, racketeering, wire fraud, and identity fraud.

It covers the elements, required mental states, defenses, definitions, DOJ policies, and sentence enhancements.  There is a special emphasis on issues that are not apparent from the statutes, including Pinkerton liability, the Apprendi rule, the official restraint doctrine, the categorical approach, hub-and-spoke conspiracies, entrapment, and much more.

The book also includes a 120-page index.  I stopped short of providing comprehensive coverage of Sentencing Guidelines issues for reasons (I think satisfactorily) explained in the book’s forward.  There is more information about the book (and my background) on the TRIALDEX BLOG and TRIALDEX ABOUT pages.

June 1, 2020 in Recommended reading | Permalink | Comments (0)

Senator Harris and Representative Jeffries write to AG Barr to express "concern about the process for transferring incarcerated individuals to home confinement"

As reported in this AP piece, "Democratic lawmakers are raising questions about the federal Bureau of Prisons’ release of high-profile inmates and are calling for widespread testing of federal inmates as the number of coronavirus cases has exploded in the federal prison system."  Here is more from the press piece:

Sen. Kamala Harris and Rep. Hakeem Jeffries sent a letter Monday to Attorney General William Barr and Bureau of Prisons Director Michael Carvajal over the home confinement policies. They expressed concern that a number of high-profile inmates, including former Trump campaign chairman Paul Manafort and former Trump lawyer and fixer Michael Cohen, had been released despite not meeting all the criteria that the agency has set for inmates prioritized for home confinement.  “As President Trump’s associates are cleared for transfer, tens of thousands of low-risk, vulnerable individuals are serving their time in highly infected prisons,” the lawmakers wrote.

They pointed to the case of Andrea Circle Bear, a 30-year-old pregnant inmate whose baby was delivered by cesarean section while she was on a ventilator after being hospitalized with coronavirus symptoms and who died in federal custody in late April.  They also pointed to the case of a 67-year-old man serving a sentence at FCI La Tuna, a low-security prison in Texas, who has advanced coronary disease and who was initially told he would be released to home confinement but later was told it was rescinded because he hadn’t served at least half of his sentence.

Prison advocates and congressional leaders have been pressing the Justice Department for weeks to release at-risk inmates ahead of a potential outbreak, arguing that the public health guidance to stay 6 feet (1.8 meters) away from other people is nearly impossible behind bars. And they’ve raised alarm about what they’ve described as mixed messages from the prison agency about the criteria for who can be released....

The Bureau of Prisons has disputed that it is giving any preferential treatment to high-profile inmates and has said it has placed 3,544 inmates on home confinement since Barr first issued a memo ordering an increase in the use of home confinement in late March. The response from the Bureau of Prisons on the coronavirus has raised alarm among advocates and lawmakers about whether the agency is doing enough to ensure the safety of the about 137,000 inmates serving time in federal facilities.

As of Monday, 5,234 inmates had tested positive for COVID-19 since late March; the Bureau of Prisons said 3,605 had recovered. At least 64 inmates have died. And even though officials have stressed infection and death rates inside prisons are lower compared with outside, a high number of inmates tested come back positive — signs that COVID-19 cases are left uncovered.

Separately, Sens. Elizabeth Warren and Cory Booker asked the Bureau of Prisons to immediately begin conducting “universal diagnostic testing” for all federal inmates and staff members, including those held at privately run facilities, and to publicly release daily data on the number of inmates and staff members who have been tested. “Widespread and continued diagnostic testing is crucial to controlling the COVID-19 pandemic,” they wrote. The lawmakers said the Bureau of Prisons has “not been forthcoming with specific testing protocols” and is not providing specific information about the testing capacity at federal prisons across the U.S.

The full three-page letter referenced in this article is available at this link, and it concludes with a number of questions that would be nice to see answered (e.g., "How many individuals has BOP recommended for transfer to home confinement since March 26, 2020?... Please provide a breakdown of those recommendations by age, gender, race, and crime of conviction.").

June 1, 2020 in Criminal justice in the Trump Administration, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

SCOTUS, voting 7-2, limits reach of AEDPA's limit on second habeas petitions in Bannister v. Davis

The Supreme Court handed down a number of opinions this morning, and habeas/criminal procedure fans — or civil procedure fans since habeas actions are technically civil actions — will be excited to see one of the group is Bannister v. Davis, No. 18–6943 (S. Ct. June 1, 2020) (available here).  The opinion in Bannister is a notable procedural win for habeas petitioners, and I am intrigued and a bit surprised the ruling came down 7-2 given how long the opinions took to be issued (the case had been argued in December 2019).  The opinion for the Court was authored by Justice Kagan, and it starts and ends this way:

A state prisoner is entitled to one fair opportunity to seek federal habeas relief from his conviction.  But he may not usually make a “second or successive habeas corpus application.” 28 U.S.C. §2244(b).  The question here is whether a motion brought under Federal Rule of Civil Procedure 59(e) to alter or amend a habeas court’s judgment qualifies as such a successive petition.  We hold it does not.  A Rule 59(e) motion is instead part and parcel of the first habeas proceeding....

Our holding means that the Court of Appeals should not have dismissed Banister’s appeal as untimely.  Banister properly brought a Rule 59(e) motion in the District Court.  As noted earlier, the 30-day appeals clock runs from the disposition of such a motion, rather than from the initial entry of judgment.  See supra, at 3.  And Banister filed his notice of appeal within that time. The Fifth Circuit reached a contrary conclusion because it thought that Banister’s motion was really a second or successive habeas application, and so did not reset the appeals clock. For all the reasons we have given, that understanding of a Rule 59(e) motion is wrong. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

Justice Alito pens a dissent that is joined by Justice Thomas.  This dissent, intriguingly, runs the same length as the opinion for the Court, and here are excerpts from how it starts and ends:

If Banister had labeled this motion what it was in substance — another habeas petition — it would have been summarily dismissed under 28 U. S. C. §2244(b)(1).  If he had labeled it a motion for relief from judgment under Federal Rule of Civil Procedure 60(b), it would also have been subject to dismissal under our decision in Gonzalez v. Crosby, 545 U.S. 524 (2005). Instead, he gave it a different label, styling it as a motion to alter the judgment under Rule 59(e), and the Court now holds this label makes all the difference.

The question in this case is whether a state prisoner can evade the federal habeas statute’s restrictions on second or successive habeas petitions by affixing a Rule 59(e) label. The answer follows from our decision in Gonzalez, and the answer is no.  If a Rule 59(e) motion asserts a habeas claim, the motion functions as a second or successive habeas petition and should be treated as such....

I would hold that a Rule 59(e) motion that constitutes a second or successive habeas petition is subject to §2244(b) and that such a motion does not toll the time to appeal.  I therefore conclude that the Fifth Circuit was correct to dismiss Banister’s untimely appeal.  Because the Court holds to the contrary, I respectfully dissent.

June 1, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

May 31, 2020

"Proposed Public Health and Public Safety Pathways for Criminal Justice System Responses to Covid-19"

The title of this post is the title of this effective short document produced by a number of organizations involved in both criminal justice administration and public health.  Here is how it gets started:

A wide array of criminal justice stakeholders have come together to call for a public health-oriented approach to the COVID-19 crisis. The key recommendations are as follows:

 1.  Release of people who are incarcerated, based on clear public health recommendations and release criteria, is a critical intervention to limit the spread of disease.

 2.  Limiting new admissions to closed correctional settings is an equally critical component of reducing disease transmission for the protection of our communities.

 3.  Violations of COVID-19-related directives and orders should be addressed with a public health approach, rather than with criminalization and law enforcement surveillance.

 4.  Innovations that promote integration of public health priorities into the justice system already exist and may help local jurisdictions in their responses, including specialty courts, evidence-based models of correctional health care, and dedicated re-entry services.

 5.  Connections among public health organizations, researchers, and criminal justice stakeholders are necessary to manage health crises in custodial settings and should endure beyond the COVID-19 pandemic.

May 31, 2020 in Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (0)

Despite a short work week, still another long list of new COVID-influenced federal sentence reductions using § 3582(c)(1)(A)

Another (too) busy work week for me meant that I needed this weekend to catch up on last week's  COVID-influenced grants of sentence reductions using § 3582(c)(1)(A).  As readers may recall, my last post with a list of recent grants (covering grants mostly from May 16 to 21) was quite lengthy.  Perhaps due in part of a shorter work-week, this listing is not quite as long, but it still represents lots of uplifting news for certain defendants and their loved ones during a time when I think we can all benefit from some positivity.  So:

United States v. Somerville, No. 2:12-CR-225-NR, 2020 WL 2781585 (WD Pa. May 29, 2020)

United States v. Chester, No. 6:17-CR-06151 EAW, 2020 WL 2771077 (WDNY May 29, 2020)

United States v. Acoff, No. 3:15cr157 (MPS), 2020 WL 2781798 (D Conn. May 29, 2020)

Harrell v. United States, No. 13-20198, 2020 WL 2768883 (ED Mich. May 28, 2020)

United States v. Gonzalez, No. 12-CR-326 (JMF), 2020 WL 2766048 (SDNY May 28, 2020)

United States v. Feucht, No. 11-CR-60025-MIDDLEBROOKS, 2020 WL 2781600 (SD Fla. May 28, 2020)

United States v. Silkeutsabay, No. 2:13-CR-0140-TOR-3, 2020 WL 2747401 (ED Wash. May 27, 2020)

United States v. Whyte, No.  4:12cr00021-002, 2020 WL 2754761 (WD Va. May 27, 2020) 

United States v. Body, No. 18 CR 503-1, 2020 WL 2745972 (ND Ill. May 27, 2020)

United States v. Jackson, No. 5:02-cr-30020, 2020 WL 2735724 (WD Va. May 26, 2020)

United States v. Morris, No. 12-154 (BAH), 2020 WL 2735651 (DDC May 24, 2020)

Nearly a dozen grants in a short week is still remarkable, and this group can be rounded up to an even dozen with McCoy v. United States, No. 2:03-cr-197, 2020 WL 2738225 (ED Va. May 26, 2020).  McCoy grants a sentence reduction, without any mention of COVID, to redress an old excessive sentence imposed on a young offender and inflated by stacking mandatory 924(c) counts.  Here is the closing section from McCoy court: "Petitioner was sentenced at just 20 years old to a mandatory 421 month term for crimes that he would face an advisory guidelines range of 205–214 months if sentenced today.... Petitioner's relative youth at the time of the sentence, the overall length of the sentence, the disparity between his sentence and those sentenced for similar crimes after the FIRST STEP Act, and his rehabilitative efforts form an extraordinary and compelling basis for relief.  Accordingly, .... Petitioner's total sentence is reduced to a cumulative term of 205 months."

As I have mentioned before, a lot of late week rulings do not appear on Westlaw right away, so there might still be some additional late May grants that could show up on the service later this week.  Moreover, as I have mentioned in a number of prior posts, I am quite certain that these Westlaw listings do not represent all sentence reductions being granted by federal courts these days.  The data in the Marshall Project article flagged here have led me to believe that Westlaw is picking up only about half or even less of all federal sentence reduction grants.

Prior recent related posts since lockdowns:

May 31, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

"Unconstitutional Incarceration: Applying Strict Scrutiny to Criminal Sentences"

The title of this post is the title of this new Yale Law Journal note authored by Salil Dudani.  Here is its abstract:

The deprivation of a fundamental right triggers strict scrutiny, and freedom from physical restraint is a fundamental right.  Indeed, the right to be free from physical restraint lies at the very core of the liberty protected by the Due Process Clause.  In the contexts of pretrial detention and civil commitment, courts hold that due process prohibits unnecessary incarceration and requires the government to prove the necessity of incarceration in each individual case.  Without explanation, courts do not apply these same principles to criminal sentences, which just as surely infringe on physical liberty.  This Note argues that they should: there is no good reason to exempt sentences of confinement from the fundamental due-process right to freedom from physical restraint.  If the government cannot prove that a criminal sentence is necessary to achieve a compelling state interest, the sentence is unconstitutional, even when it is purportedly required by a statute establishing a “mandatory minimum sentence” for the crime of conviction.  The Note discusses how courts should implement this scrutiny and suggests that state courts should lead the way in doing so.

May 31, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (1)