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June 13, 2020

"Pandemics, Risks and Remedies"

The title of this post is the title of this new and timely article authored by Lee Kovarsky now available via SSRN.  Here is its abstract:

There are lessons in every catastrophe, and the impact of Coronavirus-19 (“COVID”) on America’s prisoner population has been especially catastrophic.  Jails and prisons are sites of unique peril because each facility bears the systemic risk of a single infection.  That COVID tore through these facilities was predictable — the health infrastructure is deplorable, social distancing is impossible, and the community has heightened medical vulnerabilities.  These places are pandemic tinder boxes, and COVID was more than enough to kindle the blaze.

There is a temptation to view America’s inability to protect her prisoners as a simple failure of political and bureaucratic will, but the shortage of such resolve was just one part of a more complex institutional disaster.  In this Paper, I argue that COVID exposed a remedial deficit between pandemic risks that were systemic and remedies that were not.  In so doing, I explore the surprisingly poor performance of the mechanisms that one might have expected to facilitate sufficient prisoner discharge: federal civil rights litigation, administrative release, and clemency power.

The systemic health risk at jails and prisons requires remedies that are fast and scalable, but existing discharge mechanisms are too slow, require too much multilateral consensus, and concentrate discharge powers in the wrong institutions.  To address future waves of pandemic infection, American jurisdictions should concentrate discharge powers in decision-makers who are closer to the most acutely affected localities.  A concentration-and-localization principle is also a model for a broader back-end decarceration strategy.

June 13, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

June 12, 2020

You be the political consultant: Should Joe Biden release a SCOTUS short-list?

I continue to think that then-candidate Donald Trump's decision in May 2016 to release a list of people he would consider as potential Supreme Court appointments was a quite clever and consequential campaign strategy.  Among other political benefits, the list honored and vindicated the decision by Senate Republicans to refuse of consider then-Prez Obama's nomination to the Court and reminded voters that the first critical act of whomever was to be elected in 2016 was to reshape the composition of SCOTUS. 

As Joe Biden looks to take over the role of nominating Supreme Court Justices, I know I would like to see him produce some kind of SCOTUS short-list.  As I have said before, as a court-watcher and a voter, it can be quite informative and important to get a view of what kinds of individuals a potential President would expect to appoint to our highest court.  But this new Hill article, headlined "Democrats warn Biden against releasing SCOTUS list," details that Biden's political allies are not keen on him taking a page from the candidate Trump playbook:

Senate Democrats are warning former Vice President Joe Biden against releasing a list of potential Supreme Court picks. Then-candidate Trump, in 2016, released a list of names he said he would pick from to fill a Supreme Court vacancy, and Biden is facing calls from activists on both the right and left to do the same.  But several Democratic senators are warning Biden, who previously chaired the Judiciary Committee, against doing so.

Sen. Dick Durbin (D-Ill.), the No. 2 Senate Democrat and a member of the panel, told The Hill that Biden should not emulate Trump, who broke political norms with his list. “I sincerely hope he does not do that,” Durbin said.  “We ought to go back to the regular order of things.  If and when vacancies occur he can look for the very best person at that moment.”...

Senate Minority Leader Charles Schumer (D-N.Y.) told reporters during a conference call that he also did not think Biden should release a list. “I have a lot of faith in Joe Biden. ...I’ve talked to him a little bit about this and I think he understands the gravity of the issue,” Schumer said.

The push for Biden to provide more details, and specific examples, of who he might pick for the Supreme Court comes as the federal judiciary is viewed as a key issue for the Democratic base in the wake of Republicans changing the rules for confirming Supreme Court nominees in 2017 and a controversial, vitriolic confirmation battle over Justice Brett Kavanaugh in 2018....

Biden has signaled he’s concerned about the courts’ direction, and that the GOP could seek to keep filling seats until the end of the year even if Trump loses reelection. During a NAACP event, Biden said he was “very concerned” that Senate Majority Leader Mitch McConnell (R-Ky.) was going to pressure older judges to retire....

His campaign didn’t respond to a request for comment on Thursday about calls for him to release a list of who he would pick from if he wins the White House and there is a Supreme Court vacancy.  Two Supreme Court Justices, Ruth Bader Ginsburg and Stephen Breyer, are in their 80s.  Two others, Clarence Thomas and Samuel Alito, are in their 70s.

Biden has committed to naming a black woman to the Supreme Court, which would mark a historic first. “I commit it that if I’m elected president and have an opportunity to appoint someone to the courts, I’ll appoint the first black woman to the courts. It’s required that they have representation, now it’s long overdue,” Biden said earlier this year during a debate against Sen. Bernie Sanders (I-Vt.).  Biden said during an interview with ABC’s “The View” that there were at least four women who he viewed as qualified to serve on the Supreme Court, but did not name names.

But some progressives say specifying a list of who he would pick from could be an olive branch to voters who might be wary of him as the party’s standard bearer.  “We think he should take the next step and say who those people are, so we have a more concrete sense of who he would nominate, sort of what the values are that he hopes those people might bring to the Supreme Court,” Christopher Kang, the chief counsel for Demand Justice, told The Hill in a recent interview.

Kang added it would be “reassuring” to get more details on who Biden is considering. “I think it could be an opportunity for him to really help consolidate the Democratic base by showing that the people he’s thinking about are people who have not only led exemplary legal careers but are inspiring for the work that they’ve done,” he said.

It’s not just progressives who want to see who Biden could be looking at for the Supreme Court.  Carrie Severino, the president of the conservative Judicial Crisis Network, wrote in an op-ed that Biden would rather “prefer to play hide the ball” than say who he will nominate.  “Independents and the right would be just as interested to know who Biden has in mind. If he becomes President Biden, they fear the Supreme Court may be radicalized, perhaps to deliver an America of the kind that Alexandria Ocasio-Cortez and the far left dream of,” she added, referring to the progressive New York House member.

Notably, neither Neil Gorsuch nor Brett Kavanaugh appeared on Donald Trump's initial SCOTUS short-list; these names were added later and that history highlights that Biden would not really be locking himself in to particular potential nominees with an initial list.  Most fundamentally, a short list would serve as a kind of statement of vision and values for the Supreme Court's future, and I think all voters benefit from getting a view of the types of people Biden would be inclined to seriously consider for the Court.  (And, of course, I am interested in seeing a list full of persons with backgrounds and legal careers suggesting they would be likely to help produce more and better criminal justice rulings from the Supreme Court.)

Because I am always interested in more transparency (and more blog material), I know I still would urge Biden to release a SCOTUS short-list ASAP.  But I would be eager to hear from any would-be (or actual) political consultants: do you think it would be politically wise for Joe Biden to release a SCOTUS short-list during his campaign?

Prior related post:

June 12, 2020 in Campaign 2020 and sentencing issues, Who Sentences | Permalink | Comments (2)

So many more federal sentence reductions using § 3582(c)(1)(A) to report before week concludes

Readers may recall this post from mid May listing more than two dozen grants of sentence reductions under § 3582(c)(1)(A) in one week showing up on Westlaw, and this latest posting reporting on grants from the first week on June showing comparable activity with sentence reduction grants.  As the long listing below highlights, the sentence reduction hits just keep on coming; I felt compelled to compile these grants before the week is out because there are already so many (and included below are few stragglers from last week that only recently appeared on Westlaw):

United States v. Padilla, No. 19-cr-03331-GPC, 2020 WL 3100046 (SD Cal. June 11, 2020)

United States v. Gamboa, No. 09-1741 JAP, 2020 WL 3091427 (D N.M.  June 11, 2020)

United States v. Williams, No. 06-cr-0143 (WMW/FLN), 2020 WL 3097615 (D Minn. June 11, 2020)

United States v. Nazzal, No. 10-20392, 2020 WL 3077948 (ED Mich. June 10, 2020)

United States v. Williams, No.19-cr-134-PWG, 2020 WL 3073320 (D Md. June 10, 2020)


United States v. Blye, No.  CR15-348RSL, 2020 WL 3064225 (WD Wash. June 9, 2020) 

United States v. Goins, No. 11-cr-20376, 2020 WL 3064452 (ED Mich. June 9, 2020)

United States v. Mason, No. 3:17-CR-104-CWR-LRA-3, 2020 WL 3065303 (SD Miss. June 9, 2020)

United States v. Malone, No. 12-146-03, 2020 WL 3065905 (WD La. June 9, 2020)

United States v. Dana, No. 3:17-cr-148-SI, 2020 WL 3056791(D Ore. June 9, 2020)


United States v. Lott, No. 95cr72, 2020 WL 3058093 (SD Cal. June 8, 2020) (stacked 924(c) case)

United States v. Parramore, No. CR18-156-RSM, 2020 WL 3051300 (WD Wash. June 8, 2020) 

United States v. Krashna, No. 17-cr-00022-JSW-1, 2020 WL 3053194 (ND Cal. June 8, 2020)

United States v. Rodriguez, No. 17-CR-157 (VEC), 2020 WL 3051443 (SDNY June 8, 2020) 

United States v. Conner, No. CR07-4095-LTS, 2020 WL 3053368 (SD Iowa June 8, 2020) 


United States v. Flores, No. 19-CR-6163L, 2020 WL 3041640 (WDNY June 8, 2020) 

United States v. Folwer, No. 17-cr-00412-VC-1, 2020 WL 3034714 (ND Cal. June 6, 2020)

United States v. Holmes, No. 14-00167 (DWF/LIB), 2020 WL 3036598 (D Minn. June 5, 2020)

United States v. Smith, No. 15-cr-30039, 2020 WL 3027197 (CD Ill. June 5, 2020)

United States v. Fettis, No. 17-cr-30003, 2020 WL 3027198 (CD Ill. June 5, 2020)


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

United States v. Riley, No. ELH-16-0402, 2020 WL 3034843 (D Md. 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)

Abdallah v. United States, No. 4:15-cr-18(3), 2020 WL 3039122 (ED Va. June 4, 2020)

As I have mentioned before, late week rulings often do not appear on Westlaw right away, so there are likely to be additional grants from this week that will appear on Westlaw later.  And, of course, these Westlaw listings do not represent all sentence reductions being granted by federal courts these days; I have noted data in a Marshall Project article leading me to think Westlaw picks up at most half of all federal sentence reduction grants.  Indeed, I recently heard from a good authority that there were an average of more than 50 of these grants per week for the month of May.  So, even with this long list of 25 new sentence reduction grants from Westlaw, this list still likely represents only about 50% of the true total.

Prior recent related posts since lockdowns:

June 12, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

June 11, 2020

"The Corrective Justice Theory of Punishment"

The title of this post is the title of this new article authored by Jacob Bronsther recently posted to SSRN. Here is its abstract:

The American penal system is racist, degrading, and inefficient.  Nonetheless, we cannot give up on punishment entirely, for social peace and cooperation depend on the deterrent threat of the criminal sanction.  The question — central to determining the degree to which punishment is justified — is why society’s need for general deterrence is an offender’s problem.  Why is it his responsibility to scare off would-be future offenders?  His past offense does not magically render him accountable for the actions of total strangers.  Existing theories of criminal justice are unable to answer this question.

This Article fills the lacuna — justifying state punishment, but, more importantly, establishing its moral limits — with the help of tort law principles.  It argues that deterrent punishment can be justified as a means of rectifying an offender’s contribution to “criminality” — not merely the perceived, but the objective threat of crime in society. Criminality chills the exercise of our rights, forces us to take expensive precautions, and exposes us to unreasonable risks of harm.  By having increased the level of criminality in the past, an offender owes a duty of repair to society as a whole, a duty of “corrective justice” in the language of tort theorists.  He can fulfill this duty by decreasing the threat of crime in the future.  In this way, deterrent punishment does not merely sacrifice him to limit the problem of future crime, for which he has no personal responsibility.  Rather, it forces him to fulfill his own duty of repair.

This novel theory — the corrective justice theory of punishment — entails three sentencing principles.  First, punishment must in fact deter crime and must be the most efficient means of doing so.  Second, however efficient it may be, punishment must not harm an offender more than is required to repair his criminality contribution.  Third, even if it is both efficient and reparative, punishment must not harm an offender to a degree that is entirely out of proportion to the harm prevented by doing so.  The Article demonstrates how these three principles, in combination, demand a radical reduction in American sentencing scales.  The Article thus concludes that the corrective justice view presents stable moral ground for the decarceral movement in America.

June 11, 2020 in Purposes of Punishment and Sentencing | Permalink | Comments (0)

"A legislative guide for winnable, high-impact criminal justice reforms"

The title of this post is the title of this new detailed briefing from the Prison Policy Initiative. Here is the start and table of contents (with links):

Given the public’s increasing demands for real change to the criminal justice system, we’ve updated and expanded our annual guide for state legislators to reforms that we think are ripe for victory.  We’ve curated this list to offer policymakers and advocates straightforward solutions that would have the greatest impacts without further investments in the carceral system.  We have focused especially on those reforms that would reduce the number of people needlessly confined in prisons and jails — a systemic problem made even more urgent by the COVID-19 pandemic.

This briefing is not intended to be a comprehensive platform, but rather to address a surprising problem faced by legislators: Each state’s criminal justice system varies so much that it can be difficult to apply lessons from other states to the same problem in one’s own.  The laws and procedures are all different, each state collects different data, and often the same words are used to mean very different things in different states, so it’s important to figure out which problems are a priority in your state and which lessons from elsewhere are most useful.  For that reason, each item here includes links to more state-level information, the text of model legislation, and/or detailed guidance on crafting a remedy.

Readers should also note that we made a conscious choice to not include critical reforms that are unique to just a few states, nor important reforms for which we don’t yet have enough useful resources that would make sense in most states.  But this guide grows and evolves each year, so we welcome ideas and resources from other state legislators and advocates.

Table of Contents

End unnecessary jail detention for people awaiting trial and for low-level offenses (2 recommendations)

Shorten excessive prison sentences and improve release processes (2 recommendations)

Sentence fewer people to incarceration and make sentences shorter (3 recommendations)

Change the financial incentives that fuel punitive justice system responses (2 recommendations)

Stop probation and parole systems from fueling incarceration (4 recommendations)

Keep criminal justice, juvenile justice, and immigration processes separate (2 recommendations)

Give all communities equal voice in how our justice system works (2 recommendations)

June 11, 2020 in Elections and sentencing issues in political debates, Recommended reading, Who Sentences | Permalink | Comments (2)

"Total Federal Inmates," as reported by BOP, drops another 1000 down to 163,441

This morning's check on the federal Bureau of Prisons' updated "Total Federal Inmates" numbers continue the extended pattern of big weekly drops in the overall numbers. In prior posts here and here, I have highlighted that, according to BOP's reporting, throughout the month of April the federal prison population was shrinking about 1,000 persons per week.  As we have been move from May into June, the new numbers at this webpage continue to show comparable weekly declines: the BOP reported population dropped from 167,803 (as of May 14, 2020) to 166,647 (as of May 21) to 165,575 (as of May 28) to 164,438 (as of June 4) and now a BOP reported total of 163,441.

I continue to fear that this persistent decline in total inmates is mostly a function of delays in the case-processing pipelines from COVIS shutdowns and that we will eventually see a (considerable?) a move upward in these numbers.  But maybe maybe we are still some ways from the bottom here and perhaps a much lower "new normal" for the federal prison population.  In the decade from 2006 to 2016, the BOP reported federal prison population averaged over 200,000 prisoners.  Would I be foolish to want to believe the decade of the 2020s might possibly see an average of under 150,000?  Could we dream of returning to the days of 1995 when the federal prison population was just 100,000?

A few of many prior related posts:

June 11, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

June 10, 2020

A few interesting accounts of Joe Biden on criminal justice

In the criminal justice arena, I have come to think of Joe Biden as a Zelig-like figure: out of a desire to fit in politically, Biden seems to be inclined to take on the criminal justice character of the era. For that reason, I expect he would prove to be somewhat reform-minded (though still pretty mainstream) were he to become President in 2021.  My framing and thinking here is reinforced by a number of new press articles on Biden and criminal justice:

From the AP, "Joe Biden says questions about 1994 crime bill are ‘legitimate’"

From CNN, "Biden repeatedly pushed bill in Senate that critics said would have made investigating police officers for misconduct more difficult"

From NPR, "Joe Biden Has Come A Long Way On Criminal Justice Reform. Progressives Want More"

From Slate, "The Protests Haven’t Changed Joe Biden Yet. They Will Change the Democratic Party."

While there are a lot of interesting elements to these pieces, I especially liked this portion of the NPR piece:

Chiraag Bains, who worked in the Department of Justice's Civil Rights Division during the Obama administration [and who] Bernie Sanders tapped to co-chair the criminal justice reform committee the Sanders and Biden campaigns set up at the end of their primary contest [wants more].  "It's not enough to speak to people's pain and utter the right words," said Bains, who emphasized he was speaking for himself, not the task force.

Bains said Biden's statements and speeches have been the right start and have been well-received — especially when contrasted to the president. "But we need a specific agenda and it needs to be bold," he said. "I do see that the vice president is moving that direction. I just think we need to do more."  Bains wants Biden to expand on already-announced proposals on ending mandatory-minimum prison sentences and ramping up the use of clemency.  He's also pushing for the restoration of federal parole and the legalization of marijuana, among other policies.

More clemency, eliminate mandatory minimums, restore federal parole and legalize marijuana is a pretty good accounting of my priority wish list for federal criminal justice reform.  If Biden were to champion all these reforms in the months ahead, I would need a better adjective for him than Zelig-like.

June 10, 2020 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

ANOTHER MID-WEEK 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 10, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Split Sixth Circuit panel vacates district court order to transfer vulnerable prisoners "out of Elkton through any means"

A few months ago, as detailed here, US District Judge James Gwin granted a preliminary injunction ordering federal officials to identify, and then start moving out, medically vulnerable prisoners from the Elkton federal prison in Ohio.  Federal officials appealed this order to the Sixth Circuit, but a Sixth Circuit panel refused initially to stay it, and thereafter Judge Gwin issued this follow-up order which stated that "Respondents have made poor progress in transferring subclass members out of Elkton through the various means referenced in the Court’s preliminary injunction Order."  The feds ultimately was able to get these actions stayed by the Supreme Court, and late yesterday a split Sixth Circuit panel vacated the injunction upon concluding, by a 2-1 vote, "that the district court abused its discretion in granting the preliminary injunction."

This Politico piece, headlined "Appeals court nixes order to shrink prison rolls because of virus," provides a usefully summary of the nearly 30 pages of opinions:

A divided federal appeals court has overturned a judge's order that required a federal prison in Ohio hard hit by the coronavirus to cut its inmate population by sending medically vulnerable prisoners home or to other prisons. A panel of the 6th U.S. Circuit Court of Appeals split 2-1 as it struck down the lower court's order to thin the ranks at the Elkton Federal Correctional Institution in Lisbon, Ohio, after a Covid-19 outbreak there that has cost 19 lives. More than a quarter of the roughly 2,000 inmates at Elkton have tested positive for the virus.

U.S. District Judge James Gwin ruled in April that prison officials were not doing enough to mitigate the danger to inmates. He ordered that officials transfer or release elderly prisoners and those with health conditions believed to lead to serious illness from the coronavirus.

However, the appeals court's majority said the steps the Bureau of Prisons took — such as screening for symptoms, limiting visitation, increasing cleaning and providing masks — meant officials were not deliberately endangering prisoners in a way that made their punishment "cruel and unusual" under the Constitution. "The BOP argues that these actions show it has responded reasonably to the risk posed by Covid-19 and that the conditions at Elkton cannot be found to violate the Eighth Amendment. We agree," Judge Julia Gibbons wrote, joined by Judge Deborah Cook.

BOP was slow to roll out widespread testing at Elkton, even as Ohio state officials moved much faster to get mass testing underway at one of their badly hit prisons. But Gibbons said the federal officials' effort met the legal standard. "The BOP initally struggled to scale up its testing capacity just before the district court issued the preliminary injunction, but even there the BOP represented that it was on the cusp of expanding testing. The BOP’s efforts to expand testing demonstrate the opposite of a disregard of a serious health risk," she wrote. Gibbons also chided Gwin for failing to address "how the released inmates would look after themselves."

Chief Judge R. Guy Cole Jr. dissented, saying federal officials were too slow to respond to the rising death toll at the prison. "I am left with the inescapable conclusion that the BOP’s failure to make use of its home confinement authority at Elkton, even as it stared down the escalating spread of the virus and a shortage of testing capacity, constitutes sufficient evidence for the district court to have found that petitioners were likely to succeed on their Eighth Amendment claim," Cole wrote.

Cole also faulted the Bureau of Prisons for offering action plans detailing a multiphase response, where the details left much to be desired. One phase consisted entirely of gathering and inventorying cleaning supplies, he wrote. "The BOP’s multiphase response does not include a single phase that allows for meaningful social distancing," the judge added.

The 6th Circuit panel split along ideological lines. Gibbons and Cook are appointees of President George W. Bush. Cole was appointed by President Bill Clinton.

Advocates for inmates expressed disappointment in the decision. “Today’s ruling is a major loss for incarcerated people who are at risk from this deadly disease,” said David Carey of the ACLU of Ohio, which brought the lawsuit. “With hundreds of people currently sick, and nearly everyone else at Elkton exposed, the federal government has a duty to take quick and decisive action."

Prior related posts:

June 10, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

"Sentenced to Surveillance: Fourth Amendment Limits on Electronic Monitoring"

The title of this post is the title of this notable new paper authored by Kate Weisburd and recently posted to SSRN.  Here is its abstract:

As courts and legislatures increasingly recognize that “digital is different” and attempt to limit government surveillance of private data, one group is conspicuously excluded from this new privacy-protective discourse: the five million people in the United States on probation, parole, or other forms of community supervision.  This Article is the first to explore how warrantless electronic surveillance is dramatically transforming community supervision and,as a result, amplifying a growing privacy-protection disparity: those in the criminal legal system are increasingly losing privacy protections even while those not in the system are increasingly gaining privacy protections.  The quickly expanding use of GPS-equipped ankle monitors, as well as other forms of electronic searches, reflects unprecedented government surveillance that has yet to be regulated, scrutinized, or limited in any meaningful way.

This Article explores this phenomenon in its own right but also contends that the expanding disparity in privacy protections is explained by two underappreciated but significant shifts in Fourth Amendment jurisprudence.  First, on the theory that defendants “choose” surveillance in exchange for avoiding incarceration, courts increasingly invoke consent to justify otherwise unconstitutional surveillance of people on community supervision.  While the debate over criminal justice bargaining is not new, the expanded reliance on consent in this context reveals blind spots in the existing debate.  Second, courts also increasingly accept government arguments in favor of otherwise unconstitutional electronic monitoring under a general “reasonableness” standard, as opposed to the traditional “special needs” doctrine.  This insidious shift toward “reasonableness” threatens to jeopardize the precise interests the Fourth Amendment was designed to protect.  But even under a reasonableness standard, electronic surveillance of people on community supervision should be more circumscribed.  Ultimately, this Article reveals how the significance of these two shifts extends beyond electronic surveillance and represents a new frontier of sanctioning warrantless searches without any level of suspicion or exception to the warrant requirement.

June 10, 2020 in Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Technocorrections, Who Sentences | Permalink | Comments (0)

Two notable recent studies detailing connections between incarceration and community spread of COVID-19

One important theme of much COVID-era advocacy for decarceration efforts (early examples here and here and here) was that reducing the density of jails and prisons, and thereby slowing the spread of coronavirus, is critical not just for the well-being of incarcerated persons, staff and their families, but also for the communities and the general public around prison facilities.  In recent days, I have seen these two interesting new studies that explore various connections between incarceration and local community spread of this harmful virus:

Incarceration And Its Disseminations: COVID-19 Pandemic Lessons From Chicago’s Cook County Jail by Eric Reinhart and Daniel Chen:

Abstract: "Jails and prisons are major sites of novel coronavirus (SARS-CoV-2) infection.  Many jurisdictions in the United States have therefore accelerated release of low-risk offenders.  Early release, however, does not address how arrest and pre-trial detention practices may be contributing to disease spread.  Using data from Cook County Jail, in Chicago, Illinois, one of the largest known nodes of SARS-CoV-2 spread, we analyze the relationship between jailing practices and community infections at the zip-code level.  We find that jail cycling is a significant predictor of SARS-CoV-2 infection, accounting for 55 percent of the variance in case rates across zip codes in Chicago and 37 percent in Illinois. By comparison, jail cycling far exceeds race, poverty, public transit utilization, and population density as a predictor of variance.  The data suggest that cycling through Cook County Jail alone is associated with 15.7 percent of all documented novel coronavirus disease (COVID-19) cases in Illinois and 15.9 percent in Chicago as of April 19, 2020.  Our findings support arguments for reduced reliance on incarceration and for related justice reforms both as emergency measures during the present pandemic and as sustained structural changes vital for future pandemic preparedness and public health."

Incarceration Weakens a Community’s Immune System: Mass Incarceration and COVID-19 Cases in Milwaukee Preliminary Results by Gipsy Escobar and Sema Taheri

"Following on the findings from previous research, we hypothesize that communities with higher levels of incarceration are more vulnerable to the spread of COVID-19 due to the impacts of mass incarceration on collective efficacy and concentrated disadvantage.  We look at the effect of the number of people sentenced to incarceration in 2015 on the concentration of COVID-19 cases between March 15 and May 11, 2020 at the census tract in Milwaukee county....

"In the context of ecological criminology, we explored the effect of incarceration rates on the number of COVID-19 cases in Milwaukee County neighborhoods and found preliminary support for our hypothesis.  The number of incarcerations is a strong predictor of the number of COVID-19 cases above and beyond the effect of other predictors in the model, including poverty, unemployment, and population not in the labor force.  Indeed, incarceration is an aggravating factor in poor health outcomes for disadvantaged communities."

June 10, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

June 9, 2020

Big new Heritage report takes stock of DOJ's risk and needs assessment system resulting from FIRST STEP Act

The Heritage Foundation has this week released this new 30-page report authored by Charles Stimson that takes a close look at the risk and needs assessment system created by the Justice Department as required by the FIRST STEP Act.  The title of the report captures its basic theme: "The First Step Act’s Risk and Needs Assessment Program: A Work in Progress."  Here is a summary from this Heritage webpage:

The First Step Act is a significant achievement. It was a rare moment in time when a bipartisan congressional delegation and an Administration supported meaningful and comprehensive criminal justice reform. Stakeholders from across the ideological spectrum came together to get behind much-needed legislation. A key pillar to that reform ultimately succeeding is the creation and implementation of a 21st-century risk and needs assessment system. To date, the Department of Justice has risen to part of the challenge by publishing PATTERN, its risk assessment tool. No doubt, PATTERN will continue to be refined, as any modern risk assessment program is only as good as the latest science and research.

And here is the conclusion of the full report:

The First Step Act is a significant achievement.  It was a rare moment in time when a bipartisan congressional delegation and an Administration supported meaningful and comprehensive criminal justice reform.  Stakeholders from across the ideological spectrum came together to get behind much-needed legislation.

A key pillar to that reform ultimately succeeding is the creation and implementation of a 21st-century risk and needs assessment system.  To date, the DOJ has risen to part of the challenge by publishing PATTERN, its risk-assessment tool.  In short order, it refined PATTERN after taking into consideration a wide variety of viewpoints.  No doubt, PATTERN will continue to be refined, as any modern risk-assessment program is only as good as the latest science and research.

With respect to developing a new and improved needs-assessment program under PATTERN, the DOJ has so far fallen short, but has acknowledged an ambitious time frame in which to publish that program.

As PATTERN matures, and more data becomes available, we will be able to ascertain how accurate PATTERN is in predicting recidivism and whether, in its application, it proves to be both race and gender neutral and an effective tool.  The DOJ should continue to be prudent in studying the data as it accrues and considering a wide variety of feedback on PATTERN, and should base future decisions based on fact and the best science available, not political considerations or outcome-based desires.

June 9, 2020 in FIRST STEP Act and its implementation, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Rounding up some carceral headlines and stories as COVID continues

With other criminal justice news grabbing more headlines these days, it is dangerously easy to forget the dire realities that persist as incarceration nation continues to confront a coronavirus pandemic.  Here is a quick round-up of some recent headlines and stories to remind everyone that this tale is still unfolding in many particulars:

From CorrectionsOne, "COVID-19 cases continue to climb at Wash. state prison"

From KQED, "As COVID-19 Surges Through Prisons, Guards and Inmates Sue"

From the Los Angeles Times, "Nearly 1,000 infected at Chuckawalla Valley State Prison in worst coronavirus outbreak to hit prison system"

From the Marion Star, "North Central officer: Private Ohio prison is a 'powder keg' amid coronavirus pandemic"

From The Marshall Project, "Jails Are Coronavirus Hotbeds. How Many People Should Be Released To Slow The Spread?: As officials cut jail populations, researchers and advocates explore what more can be done."

From McClatchy DC, "‘Mommy, I’m in so much pain:’ Florida prisoners write home about COVID-19 ordeals"

From Newsweek, "'Tiger King' Star Says Medical Mistreatment in Prison Will Kill Him in 2-3 Months"

From NPR, "COVID-19 Inside Arkansas Prisons: Virus Spreads Through Inmate Populations and Staff"

From the Texas Tribune, "Inmates report dangerous practices inside the Texas prison with the most coronavirus deaths"

From U Chicago News, "Study: Nearly 16% of Illinois COVID-19 cases linked to spread from Chicago jail"

From USA Today, "Coronavirus was Paul Manafort's ticket home. Many other old, ill, nonviolent inmates are still in prison"


While the 11 pieces above report mostly disconcerting news, I will finish here with two pieces reporting more hopeful news from two states:

From the Detroit Free-Press, "Michigan prison population sees record drop during coronavirus pandemic"

From the Lexington Herald-Leader, "Thousands were freed from Kentucky jails to avoid COVID-19. Few have re-offended."

June 9, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

"Prosecutors and Their Legislatures, Legislatures and Their Prosecutors"

The title of this post is the title of this book chapter authored by Russell Gold recently posted to SSRN. Here is its abstract:

This chapter explores the often-pathological relationship between prosecutors and legislatures and considers fiscal pressure as an important antidote to the pathology.  Institutional incentives between prosecutors and legislatures align in a way quite different than the classic separation-of-powers story.  Rather, legislatures are well served to empower prosecutors as much as possible by making criminal law broad and deep.  And with respect to substantive criminal law, prosecutors have been enormously empowered.  Prosecutors are not merely passive recipients of such power but indeed actively lobby for it — often quite successfully. 

But fiscal pressures can provide a cross-cutting pressure for legislatures, particularly at the state level where many governments must balance their budgets.  Thus, sentencing law sometimes finds legislatures refusing prosecutors’ requests for ever longer or mandatory minimum sentences because longer sentences are expensive; this is especially true where sentencing commissions provide legislatures with meaningful data on costs of particular proposals. 

Criminal procedure has recently found progressive prosecutors leading the way toward defendant-friendly reforms such as using unaffordable cash bail less frequently and providing defendants with more discovery than is required by law.  In these spaces, county prosecutors have provided laboratories of experimentation that led the way toward broader statewide reforms.

June 9, 2020 in Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (0)

June 8, 2020

US Sentencing Commission releases awesome new data tool, "Interactive Data Analyzer"

Download (1)I was pleased to receive today from the US Sentencing Commission an email blaring "JUST LAUNCHED: Interactive Data Analyzer." Here is part of the text of the email:

You've got questions, IDA has data! The U.S. Sentencing Commission's Interactive Data Analyzer (IDA) is an online tool that can be used to explore, filter, customize, and visualize annual federal sentencing data. 

Some of IDA's features include:

  • Simple visualization and navigation of complex datasets (tutorial video);

  • Readymade dashboards for the most common federal crime types;

  • Combined annual data and trend analyses spanning five years;

  • Data filters by geography, demographics, crime and drug types;

  • Cross-sectional variable analysis; and

  • Export options that include formatted tables and raw data (tutorial video);

This great new tool is also explained at this USSC webpage, which includes this text:

The Interactive Data Analyzer (IDA) is an online tool that can be used to explore, filter, customize, and visualize federal sentencing data. IDA presents annual data that is stored in a secure data warehouse and refreshed periodically with the latest information collected, received, and edited by the Commission.

IDA offers prebuilt data dashboards for the four most common crime types in the federal caseload and for other common areas of interest. You can navigate to these sections using the main menu.

If you're looking for more granular data, use the filtering menu along the left side of any page. You can select data by fiscal years, jurisdictions, offender characteristics, or other variables. Filtering options will vary based on the topics you choose.

Kudos to the USSC for creating this now and helpful way to access its data. I am already having fund with IDA, and I am certain it will prove to be a useful resource for academics, policy-makers and practitioners.

June 8, 2020 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

"America’s Criminal Justice System Is Rotten to the Core"

The sharp title of this post is the sharp title of this new commentary authored by Clark Neily at Cato.  Here is how it gets started:

Before you can fairly assess the legitimacy of the ongoing protests or the quality of the government’s response, you must understand the relevant facts.  And the most relevant fact is that America’s criminal justice system is rotten to its core.  Though that certainly does not justify the violence and wanton destruction of property perpetrated by far too many protesters, it does provide useful context for comprehending the intensity of their anger and the fecklessness of the government’s response.  If America is burning, it is fair to say that America’s criminal justice system — which is itself a raging dumpster fire of injustice — lit the fuse.

I feel moved to write these words because it appears from some of the commentary I’ve been reading — including even from libertarian circles — that many people who consider themselves to be generally skeptical of government and supportive of individual rights have no idea just how fundamentally broken our criminal justice system is and how wildly antithetical it has become to our core constitutional values.

Within days or weeks, most protesters will renounce the use of lawless violence as a tool of politics; but the state will not.  That’s the key takeaway and the thing you really need to understand about this moment in time.

As I will explain below, I see three fundamental pathologies in America’s criminal justice system that completely undermine its moral and political legitimacy and render it a menace to the very concept of constitutionally limited government.  Those three pathologies are: (1) unconstitutional overcriminalization; (2) point‐​and‐​convict adjudication; and (3) near‐​zero accountability for police and prosecutors.

June 8, 2020 in Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (3)

New Federal Defenders fact sheet highlights flaws in recent USSC report on incarceration lengths and recividism

This post from late April flagged this notable report by the US Sentencing Commission, titled "Length of Incarceration and Recidivism," which reported, inter alia, that the "Commission consistently found that incarceration lengths of more than 120 months had a deterrent effect."  The empiricism of this report was quickly questioned by two academics with empirical props, Jennifer Doleac and John Pfaff, and now the Sentencing Resource Counsel of the Federal Public and Community Defenders have produced this lengthy fact-sheet and this two-pager detailing problems with this USSC's report.

The nine-page "fact sheet" from the defenders is titled "Flawed U.S. Sentencing Commission Report Misstates Current Knowledge," and here is its initial "Summary":

In April 2020, the U. S. Sentencing Commission issued a report entitled “Length of Incarceration and Recidivism.”  In its report, the Commission claimed that “incarceration lengths of more than 120 months had a deterrent effect.” No effect was found for sentences 60 months or less, while sentences between 60 and 120 months yielded inconsistent results.

None of the findings in this report should be used by judges, legislators, or the Commission to make decisions of any kind.  The report badly misrepresents the research literature (Section I), uses a weak methodology for inferring causation (Section II), and fails properly to control for defendants’ criminal history (Section IV).  The report states its findings in a misleading form prone to misinterpretation and exaggeration (Section III).  The anomalous pattern of findings fits no theory of deterrence (Section VI), and no previous study has found the same pattern.  Further, it is unlikely the report’s findings would replicate or withstand tests for robustness, but because the Commission will not release data underlying the report, independent evaluation is impossible (Section IX). 

As a bipartisan agency, charged with being a “clearinghouse” for information on the effectiveness of sentencing practices, the Commission should issue accurate reports on the current state of knowledge regarding important policy questions. This report fails to meet that standard.

Prior related post:

June 8, 2020 in Data on sentencing, Detailed sentencing data, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

SCOTUS issues short unanimous opinion clarifying prisoner filing limits of PLRA

With a large number of high-profile (and likely divisive) civil cases still left to resolve in the current SCOTUS Term, the US Supreme Court this morning just issued one little unanimous opinion and it happened to be the one last case on the docket dealing with criminal justice matters.  Specifically, Justice Kagan wrote a seven-page opinion for a unanimous Court in Lomax v. Ortiz-Marquez, 18-8369 (S. Ct. June 8, 2020) (available here).  The opinion begins and ends this way:

To help staunch a “flood of nonmeritorious” prisoner litigation, the Prison Litigation Reform Act of 1995 (PLRA) established what has become known as the three-strikes rule.  Jones v. Bock, 549 U.S. 199, 203 (2007).  That rule generally prevents a prisoner from bringing suit in forma pauperis (IFP) — that is, without first paying the filing fee — if he has had three or more prior suits “dismissed on the grounds that [they were] frivolous, malicious, or fail[ed] to state a claim upon which relief may be granted.” 28 U.S.C. §1915(g).  Today we address whether a suit dismissed for failure to state a claim counts as a strike when the dismissal was without prejudice.  We conclude that it does: The text of Section 1915(g)’s three-strikes provision refers to any dismissal for failure to state a claim, whether with prejudice or without....

The text of the PLRA’s three-strikes provision makes this case an easy call.  A dismissal of a suit for failure to state a claim counts as a strike, whether or not with prejudice.  We therefore affirm the judgment below.

June 8, 2020 in Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (0)

Justice Sotomayor flags due process concerns with how Eleventh Circuit considers inmate efforts to file second/successive habeas petition under AEDPA

The US Supreme Court has kicked off another work week with another anticlimactic order list this morning.  The Court granted cert only on a procedural immigration issue, while failing to take any action on an array of Second Amendment and qualified immunity cases that it has been sitting on for a number of weeks.  Still, there are some in crumbs for hard-core habeas fans thanks to a statement on the denial of cert from Justice Sotomayor concerning the process the Eleventh Circuit uses to consider and resolve requests from inmates seeking to file a second or successive habeas petitions under the Antiterrorism and Effective Death Penalty Act.  Here are parts of the start of Justice Sotomayor's six-page statement to provide a flavor of her concerns:

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposes several restrictions on inmates seeking to file a second or successive habeas petition.... But an inmate seeking such authorization from the Court of Appeals for the Eleventh Circuit faces even greater hurdles.
Unlike its sister circuits, the Eleventh Circuit has interpreted the relevant statutes to mandate an authorization decision within 30 days, leaving the court little time to consider a complex inmate application.  In re Williams, 898 F.3d 1098, 1102 (2018) (Wilson, J., concurring).  Under Eleventh Circuit rules, the applicant must confine his or her entire legal argument to a form on which “[f]ew prisoners manage to squeeze more than 100 words.” 918 F.3d 1174, 1198 (2019) (Wilson, J., dissenting from denial of reh’g en banc).  That limited form is the only submission that the court typically accepts: The Government seemingly “never files a responsive pleading,” and the court never grants oral argument. Ibid. Surprisingly still, this perfunctory process affects future claimants too, and not only those who find themselves in the second or successive petition posture....

These factors make out a troubling tableau indeed.  Most importantly, they raise a question whether the Eleventh Circuit’s process is consistent with due process.  The Eleventh Circuit has not yet appeared to address a procedural due process claim head on, so I will leave it to that court to consider the issue in the first instance in an appropriate case.  In the meantime, nothing prevents the Eleventh Circuit from reconsidering its practices to make them fairer, more transparent, and more deliberative.

June 8, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

June 7, 2020

An initial list of federal sentencing reforms to advance greater equity and justice for congressional consideration

According to this recent Hill article, headlined "Pelosi: Democrats to unveil sweeping criminal justice proposal Monday," a federal criminal justice bill is in the works that may go beyond police reforms.  Here are the basics:

Democrats on Monday will introduce wide-ranging legislation designed to combat racial inequities in the criminal justice system, Speaker Nancy Pelosi (D-Calif.) announced Thursday.  The much awaited package, currently being crafted by members of the Congressional Black Caucus (CBC), will feature provisions designed to eliminate racial profiling, rein in the excessive use of police force and repeal the so-called qualified immunity doctrine for law enforcers, which protects individual officers from lawsuits over actions they perform while on duty.

"We will not relent until that is secured — that justice is secured," Pelosi told reporters in the Capitol.  Yet the package will go far beyond that, Pelosi suggested.... Aside from the criminal justice elements of the Democrats' legislation, Pelosi said the package would also include provisions designed to raise the status of African Americans outside of the criminal justice system as well. "It is about other injustices, too. It's about health disparities, it's about environmental injustice, it's about economic injustice, it's about educational injustice," Pelosi said. 

This Politico piece suggests the developing bill is primarily focused on police reforms.  But if Congress has an interest, as I think it should, in broader criminal justice reforms to advance greater equity and justice, I have many suggestions.  Let's get started with some basic federal sentencing reforms:

1. Equalize crack and powder cocaine sentencing (finally!) Based on data showing huge unfair disparities, the US Sentencing Commission in 1995 (a full quarter century ago!) sent to Congress proposed guidelines changes to fix the 100:1 crack/powder cocaine disparity by adopting a 1:1 quantity ratio at the powder cocaine level.  But Congress passed, and President Bill Clinton signed, legislation rejecting the USSC’s proposed guideline changes (see basics here and here), thereby ensuring decades of disproportionately severe crack sentences and extreme racial inequities in cocaine offense punishments.

Barack Obama gave a 2007 campaign speech assailing the crack/powder disparity, and in 2009 the Obama Justice Department advocated for "Congress to completely eliminate the crack/powder disparity."  Sadly, despite strong DOJ advocacy for a 1:1 ratio in April 2009, it still took Congress more than a year to enact any reform to the 100:1 crack/powder cocaine disparity, and then it only could muster a partial reduction in crack sentences rather than the parity advocated by the USSC in 1995 and by DOJ in 2009.  Specifically, the Fair Sentencing Act enshrined a bew 18:1 crack/powder quantity disparity ratio into federal drug sentencing statutes and guidelines, and even this modest reform did not become fully retroactive until eight years later with the FIRST STEP Act.

As the USSC said in 1995 and as DOJ recognized in 2009, crack cocaine and powder cocaine are functionally the same drug save for the fact that Blacks are far more likely to be prosecuted federally for the former.  The crack/powder cocaine sentencing disparity has long been the most tangible and consequential example of structural sentencing racism, and the Minnesota Supreme Court decades ago found a lesser disparity to be unconstitutional under its state constitution.  This ugly stain still impacting thousands of Black federal defendants needs to be wiped out once and for all.

2. Repeal federal mandatory minimumsEven before its important work highlighting racial biases in the application of federal cocaine penalties, the USSC began noting the racial inequities in the application of federal mandatory minimum statutes.  In its 1991 report, the USSC noted early data showing "disparate application of mandatory minimum sentences [which] appears to be related to the race of the defendant, where whites are more likely than non-whites to be sentenced below the applicable mandatory minimum."  In its 2011 report, the USSC again documented with copious data the various ways that the effects of severe mandatory minimum sentencing provisions "fall on Black offenders to a greater degree than on offenders in other racial groups."

One need not rely on USSC data to see clear evidence of racial disparities in the application of federal mandatory minimum.  M. Marit Rehavi and Sonja B. Starr found that federal prosecutors are almost twice as likely to file charges carrying mandatory minimum sentences against Black defendants.  Similarly, Crystal Yang found that "Black offenders are far more likely to be charged with mandatory minimums than similar white offenders, and after Booker, black defendants are significantly more likely to face mandatory minimums that exceed their Guidelines minimum compared to white defendants."

Critically, mandatory minimums have all sorts of flaws, both in theory and in practice, that justify their repeal on a number of bases beyond advancing greater racial equity.  But, as is too often the case throughout criminal justice systems, a bad law for everyone often gets applied in a way that is especially inequitable and unjust for people of color.  All federal mandatory minimums ought to be repealed.

3. Create a federal expungement statute. Having a criminal record severely limits access to employment, education, housing, civic engagement, and public assistance.  As highlighted by a recent US Commission on Civil Rights report on collateral consequences, "People of color are more likely to be arrested, convicted, and sentenced more harshly than are white people, which amplifies the impact of collateral consequences on this population."

An encouraging recent study by Sonja B. Starr and J.J. Prescott involving expungements in Michigan over the course of decades found that expungement recipients had extremely low subsequent crime rates and saw a sharp upturn in wages and employment levels.  Sounds like a win-win, and ever more states are each year expanding and enhancing mechanisms for record relief.  But there is currently no general federal expungement or record sealing statute, and federal courts have no inherent authority to expunge records.  Congress should again follow the wise lead of the states by creating a robust expungement statute ASAP.

Critically, these three suggestions are really just low-hanging fruit for criminal justice reforms in the sentencing space that would obviously and easily advance greater equity and justice for all.  There are plenty of other important structural changes I would also like to see in the name of racial justice ranging from eliminating all felon disenfranchisement to decriminalizing or legalizing marijuana and lots more in between.  Indeed, any kind of wise criminal justice reform is likely to serve as a kind of racial justice reform given the consistently biased operation of our justice systems.  But for now, I will be content to advocate for these three reforms and encourage others to use the comments to indicate what they consider the most urgent forms of reform in this arena.

June 7, 2020 in Collateral consequences, Drug Offense Sentencing, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, New USSC crack guidelines and report, Race, Class, and Gender, Who Sentences | Permalink | Comments (3)

Another week with lots of federal sentence reductions from judges using § 3582(c)(1)(A) ... dare I wonder about the racial breakdown?

I flagged in this Friday post five grants of sentence reductions under § 3582(c)(1)(A) on same day Bernie Madoff was denied a reduction, and this past week was filled with many, many more judicial grants of sentence reductions using § 3582(c)(1)(A).  Readers may recall, this post from mid May with more than two dozen grants in one week showing up on Westalw, and the first week on June shows comparable activity (though I have included below a few from late May that have only recently appeared on Westlaw):

United States v. Regas, No. 3:91-cr-00057-MMD-NA-1, 2020 WL 2926457 (D Nev. June 3, 2020)

United States v. Gray, No. RDB-16-0364, 2020 WL 2932838 (D Md. June 3, 2020)

United States v. Rich, No. 17-cr-094-LM, 2020 WL 2949365 (D N.H. June 3, 2020)

United States v. McClellan, No. 1:92 CR 268, 2020 WL 2933588 (ND Oh. June 3, 2020)

United States v. Hodges, No. 04 CR 993-3, 2020 WL 2935101 (ND Ill. June 3, 2020)


United States v. Millage, No. 3:13-cr-234-SI, 2020 WL 2857165 (D Ore. June 2, 2020)

United States v. Hilow, No. 15-cr-170-JD, 2020 WL 2851086 (D N.H. June 2, 2020)

United States v. O'Neil, No. 3:11-CR-00017, 2020 WL 2892236 (SD Iowa June 2, 2020)

United States v. Williams-Bethea, No. 18-cr-78 (AJN), 2020 WL 2848098 (SDNY June 2, 2020)

United States v. Chapman, No. 09-CR-0741, 2020 WL 2850984 (ND Ill. June 2, 2020)


United States v. Prasad, No. 19-71, 2020 WL 2850147 (ED La. June 2, 2020)

Snell v. United States, No. 16-20222-6, 2020 WL 2850038 (ED Mich. June 2, 2020)

United States v. Kelley, No. 16-cr-00038-SI-1, 2020 WL 2850280 (ND Cal. June 2, 2020)

United States v. Anderson, No. 16-CR-824-1 (JMF), 2020 WL 2849483 (SDNY June 2, 2020)

United States v. Ozols, No. 16-CR-692-7 (JMF), 2020 WL 2849893 (SDNY June 2, 2020)


United States v. Torres, No. 87-Cr-593 (SHS), 2020 WL 2815003 (SDNY June 2, 2020) (two defendants both with LWOP sentences reduced)

United States v. Dickerson, No. 1:10CR17 HEA, 2020 WL 2841523 (ED Mo. June 1, 2020)

United States v. Smith, No. CR07-3038-LTS, 2020 WL 2844222 (SD Iowa June 1, 2020)

United States v. Kamaka, No. 18-00085 SOM, 2020 WL 2820139 (D Hawaii June 1, 2020)


United States v. Van Cleave, No. CR03-247-RSL, 2020 WL 2800769 (WD Wash. May 29, 2020)

United States v. Castillo, No. H-08-146-01, 2020 WL 2820401 (SD Tex. May 29, 2020)

United States v. Baclaan, No. 16-00468 HG-01, 2020 WL 2820199 (D Hawaii May 29, 2020)

United States v. Pena, No. 16-10236-MLW, 2020 WL 2798259 (D Mass. May 29, 2020)

United States v. Bass, No. 1:10-CR-166 (LEK), 2020 WL 2831851 (NDNY May 27, 2020)

As I have mentioned before, late week rulings often do not appear on Westlaw right away, so there likely are additional early June grants that will appear on Westlaw later this week.  And, of course, these Westlaw listings do not represent all sentence reductions being granted by federal courts these days; data in the Marshall Project article flagged here leads me to think Westlaw picks up at most half of all federal sentence reduction grants.

As the title of post suggests, after a week of righteous protests and discussions focused on the importance of racial equity and justice, I could not help but wonder as I assembled this list whether people of color are equally benefiting from judicial authority to reduced sentences using § 3582(c)(1)(A) after the FIRST STEP Act.  According to the most recent US Sentencing Commission data, roughly 34% of federal prisoners are Black, 34% are Latinx, 28% are White, and 4% are "other" races.  For various reasons, I suspect that the population of older federal prisoners, who seem to be those most likely to benefit from COVID-influenced reduction grants, is more Whte than the general population.  Still, because it seems likely that a sizable number of non-White federal prisoners are making viable motions for sentence reductions, I cannot help but wonder if a sizable number of non-White federal prisoners are being granted  reduced sentences using § 3582(c)(1)(A).   

Prior recent related posts since lockdowns:

June 7, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (0)

"The Effects of Parental and Sibling Incarceration: Evidence from Ohio"

The title of this post is the title of this lengthy empirical paper recently posted to SSRN authored by Samuel Norris, Matthew Pecenco and Jeffrey Weaver.  Here is its abstract:

Every year, millions of Americans experience the incarceration of a family member.  Using 30 years of administrative data from Ohio and exploiting differing incarceration propensities of randomly assigned judges, this paper provides the first quasi-experimental estimates of the effects of parental and sibling incarceration in the US.  Contrary to conventional wisdom, parental incarceration has beneficial effects on children, reducing their likelihood of incarceration by 4.9 percentage points and improving their adult socioeconomic status.  We can also reject large positive or negative effects of parental incarceration on academic performance and teen parenthood.  Sibling incarceration leads to similar reductions in criminal activity.

June 7, 2020 in National and State Crime Data, Offender Characteristics | Permalink | Comments (0)