Sentencing Law and Policy

"Sentencing Disparities and the Dangerous Perpetuation of Racial Bias"

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

This Article addresses the role that racial disparities — specifically sentencing disparities — play in perpetuating the racial bias that increases the daily danger of living as a Black American in the United States.  As documented in the news and by often humorous internet memes, White people have called the police many times to report Black people who were simply living as any other American.  This trend highlights the manner in which the U.S. criminal justice system’s racial inequities feed into biased beliefs about Black criminality.  This Article argues that instead of tackling implicit bias as a means to fight sentencing and other criminal justice bias, we must actively correct and eliminate the disparities head-on.

Is Prez Trump trying to convince himself to have the guts to pardon Roger Stone?

The question in the title of this post was my first thought upon seeing this news piece headlined "Trump tweet fuels speculation of Stone pardon: The tweet came after a judge ruled Stone would report to prison in July."  Here are the details:

President Donald Trump further fueled speculation Saturday morning that he plans to pardon longtime friend and adviser Roger Stone.

After a judge on Friday gave Stone a surrender date of July 14 -- he had sought to report to the Georgia prison on Sept. 3 -- Trump tweeted a story about a petition for the president to pardon Stone as he faces a sentence of 40 months for lying to Congress and misleading investigators on several key elements of their probe into Russian meddling in the 2016 election.

On Saturday, Trump retweeted a message saying "IT’S TIME TO #PardonRogerStone"

This is not the first time a Trump tweet has raised the prospect of a Stone pardon.  Earlier this month, on June 4, the president tweeted that "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!"

With Stone now seemingly having a hard prison report date in three weeks, Prez Trump is going to have to make a clemency decision sooner rather than later. If Prez Trump is really eager to keep Stone out of prison, I hope he might at least looks to include Stone with some additional meritorious clemency grants as he did back in February when commuted the sentences of sentences of three women along with Rod Blagojevich.

Prior related posts:

• For Roger Stone, federal prosecutors advocate for within-guideline sentence of 7.3 to 9 years in prison ... which Prez Trump calls a "miscarriage of justice!" 
• DOJ now says "sentence of incarceration far less than 87 to 108 months [for Roger Stone] would be reasonable under the circumstances"  
• Would it be improper for a President to write a character letter for a defendant facing federal sentencing?
• Roger Stone case generating some useful reflections on federal sentencing challenges and problems and lessons
• Roger Stone gets 40-month federal prison sentence ... but will he ever actually serve it?
• Is Prez Trump legally unable to grant clemency to Roger Stone? 
• Will Prez Trump use his clemency pen to "rescue" his pal Roger Stone from federal prison? 
• Donald Trump hinting that he will use his clemency powers on behalf of Roger Stone

"How to have less crime with less punishment"

The title of this post is the headline of this new Hill commentary authored by Benjamin van Rooij and Adam Fine.  Here are excerpts:

For too long, America has been under the illusion that punishment is an effective medicine against crime.  This has led to the largest prison population in the world, a system of mass incarceration that has destroyed families and neighborhoods caught in circles of arrests, imprisonment, probation, and legal discrimination.  And with very little to show for it. It did not help win the War on Drugs or prevent the current opioid epidemic, nor did it play a significant role in the crime declines in cities like New York.  The criminal justice system does not even help to prevent crime through incapacitation, by locking offenders out of society, as this, in the most positive estimate, reduces crime by only 0.4 percent.

So, the idea that we can only get law and order through punishment is simply flawed. Surely, there should not be impunity, and punishment is definitely part of any law and order mix. But, it should just not be its chief focus. There are much better ways to prevent crime....

If we simply make crime harder, we need less police and less punishment.  There is a clear road ahead here. If you want to reduce homicide and many forms of gang violence, and many suicides while you’re at it, just ban guns, or at least severely restrict access to them.  Just consider how none of America’s top-ten mass shootings occurred during the federal ban on assault rifles.  And this has the added advantage that we deescalate police work, as cops have less reason to be afraid and less reason to act like soldiers in war zones.

Next, we can ensure that people do not have to resort to crime in the first place.  We clearly know that when there is less poverty, there is less crime, and when people get to finish their education, again, less crime. So let’s fight crime by fighting poverty and investing in education.  And for those who do resort to crime, we can turn to our next layer of defense: treatment.  Perhaps the most surprising thing we learned when we looked through decades of research was that rehabilitation programs that provide cognitive therapy, aggression training and substance abuse treatment actually work very well.  They are shown to reduce crime between 18-60 percent.

Finally, we can also have less crime if more people think the law is legitimate.  In fact, the way we perceive the criminal justice system is directly related to our willingness to engage in crime.  If people feel that the legal system treats them with respect, that it listens to their concerns, and that it acts impartially and neutrally, they will be less likely to commit a crime.  We must make our legal system fair and just because in doing so, we not only end the racism and brutality that have existed for so long, but we also fight crime.

This is just the tip of the iceberg: there are many insights about how to reduce crime based on scientific evidence. Yet most of these are ignored in our politics and in our public media.  Why do we rely on scientists to fight the coronavirus, but fail to heed their findings when addressing crime and public safety?

We have simply fooled ourselves in believing that punishment and tough-on-crime are the keys.  We have given in to our punishment reflex. It’s time to overcome our gut feelings, follow the evidence, and build a criminal justice system that starts to deliver the justice and safety it so direly owes us all.

"COVID-19 and Homicide: Final Report to Arnold Ventures"

The title of this post is the title of this very interesting new empirical paper that I can across yesterday. The 13-page work is authored by Thomas Abt, Richard Rosenfeld and Ernesto Lopez.  Here is its summary:

Did crime rates decline in response to the actions taken to address the COVID-19 pandemic?  Several reports have suggested that they did, in the United States and other nations (e.g., Jacoby, Stucka, and Phillips 2020; Mohler, Bertozzi, Carter, et al. 2020; Police Executive Research Forum 2020; Semple and Ahmed 2020).  Some cautioned that crime was not falling at the same pace everywhere, however, and in some US cities it was rising (Dolmetsch, Pettersson, Yasiejko 2020). These accounts are typically based on small samples of cities and brief time periods.

By contrast, the current study, to our knowledge the largest to date, compares monthly homicide rates in 64 US cities during January through June of 2020 with the previous three-year average homicide rates during the same months. We focus on homicide because it is the most serious and reliably measured criminal offense.  We find that, compared with the previous three-year average, homicide rates decreased during April and May of 2020.  Not all cities experienced a homicide decline, however, and the decreases during April were roughly twice as large as those in May.  With few exceptions, we did not find sizable differences between the cities in which homicides dropped and those where they rose.  We conclude by discussing several reasons why homicide rates in US cities might increase over the next several months.

More great new Politico Magazine coverage now on "Justice Reform: Prison Conditions"

In this post a couple of months ago, I noted that the Politico Magazine had produced a bunch of great new articles on criminal justice reform issues under the heading "Justice Reform: The Decarceration Issue."  Those article are still collected at this link, but they are now topped by another great new set of pieces under the heading "Justice Reform: Prison Conditions."  Here are the lengthy pieces under this heading with their full headlines:

The Lifers Changing Prisons From Inside: Over 40 years, the National Lifers of America rewrote the rules of prison reform. Now they've hit a new obstacle: connecting with the outside world during a pandemic.

San Quentin’s Breakthrough Prison Newsroom: A huge podcast hit and a revived newspaper mean that policymakers really have to listen. 

10 Races That Could Change the System: Forget Washington. The real challenges to the system are coming from cities and states. Here are the ones to watch.

How U.S. Prisons Became Ground Zero for Covid-19: Tight quarters, strained hygiene practices and guards moving to and from their community put prisons at risk of becoming coronavirus hotbeds.

Prior related post:

• Great new Politico Magazine feature on "Justice Reform: The Decarceration Issue" 

Time for another long list of (mostly COVID-influenced) federal sentence reductions using § 3582(c)(1)(A)

I must admit that I might be starting to get just a bit fatigued by my repeated listings of new grants of federal sentence reductions using § 3582(c)(1)(A).  But these lists represent such a special kind of good news for federal prisoners and those that care about them, and I am not at all tired of seeing this heartening news each week as I assemble dozens of recent grants.  So:

United States v. Morrison, No. 19-cr-284-PWG, 2020 WL 3447757 (D Md. June 24, 2020)

United States v. Martin, No. DKC 04-0235-5, 2020 WL 3447760 (D Md. June 24, 2020)

United States v. Davis, 2:15-cr-00062-TLN, 2020 WL 3443400 (ED Cal. June 23, 2020)

United States v. Oaks, No. RDB-17-0288, 2020 WL 3433326 (D Md. June 23, 2020)

United States v. Smith, No. 4:18CR805 HEA, 2020 WL 3429150 (ED Mo. June 23, 2020)

 

United States v. Platte, No. 05-cr-208-JD-KJM-2, 2020 WL 3441979 (ED Cal. June 22, 2020)

United States v. Salvagno, No. 5:02-CR-51 (LEK), 2020 WL 3410601 (NDNY June 22, 2020)

United States v. Common, No. 17-cr-30067, 2020 WL 3412233 (CD Ill. June 22, 2020)

United States v. Faafiu, No. CR 17-0231 WHA, 2020 WL 3425120 (ND Cal. June 22, 2020)

United States v. Ladson, No. 04-697-1, 2020 WL 3412574 (ED Pa. June 22, 2020)

 

United States v. Austin, No. 06-cr-991 (JSR), 2020 WL 3447521 (SDNY June 22, 2020)

United States v. Lee, No. 1:95-cr-58 (LMB), 2020 WL 3422772 (ED Va. June 22, 2020)

United States v. Bayuo, No. 15-cr-576 (JGK), 2020 WL 3415226 (SDNY June 20, 2020)

United States v. Richardson, No. 2:17-cr-00048-JAM, 2020 WL 3402410 (D Conn. June 19, 2020)

United States v. Garcia-Zuniga, No. 19cr4139 JM, 2020 WL 3403070 (SD Cal. June 19, 2020)

 

United States v. Jackson, No. 2:18-cr-86-PPS, 2020 WL 3396901 (ND Ind. June 19, 2020)

United States v. Calabrese, No. 16-30033-TSH, 2020 WL 3316139 (D Mass. June 18, 2020)

United States v. Clark, No. 4:08-CR-00096, 2020 WL 3395540 (SD Iowa June 17, 2020)

United States v. Joseph, No. 18-CR-156, 2020 WL 3270885 (ED Wisc June 17, 2020)

United States v. Johnson, No. JKB-14-356, 2020 WL 3316221 (D Md. June 17, 2020)

 

United States v. Kess, No. ELH-14-480, 2020 WL 3268093 (D Md. June 17, 2020)

United States v. Quinn, No. 91-cr-00608-DLJ-1 (RS), 2020 WL 3275736 (ND Cal. June 17, 2020)

United States v. Cruz, No. 3:17-cr-00075-JO-4, 2020 WL 3265390 (D Ore. June 17, 2020)

As I have mentioned repeatedly, some rulings do not appear on Westlaw right away and others do not show up at all.  Indeed, this BOP page on the FIRST STEP Act has updated its reporting of total grants of "Compassionate Releases / Reduction in Sentences," and it now reports 706 grants when last week the page reported 650 grants.  These data confirm my sense from various sources that around 50 sentence reductions are now being granted each week of the COVID era.

Prior recent related posts since lockdowns:

• Notable recent (pre-COVID) grants of sentence reductions from coast to coast using 3582(c)(1)(A) ... as FAMM urges thousand more filings in response to coronavirus
• Documenting early federal court COVID jurisprudence in response to various release requests from federal defendants and inmates 
• A few (too few) recent COVID-influenced grants of sentence reductions using 3582(c)(1)(A)
• Pleased to see growing number of COVID-influenced grants of sentence reductions using 3582(c)(1)(A)
• A few more COVID-influenced grants of sentence reductions using 3582(c)(1)(A)
• Still more COVID-influenced grants of sentence reductions using 3582(c)(1)(A), with waivers of exhaustion/waiting period 
• Additional COVID-influenced grants of federal sentence reductions using 3582(c)(1)(A) 
• Another round of recent COVID-influenced grants of federal sentence reductions using 3582(c)(1)(A)
• A dozen new grants of federal sentence reductions using § 3582(c)(1)(A), including another based on stacking/disparity/trial penalty concerns
• Still more of the ever-growing number of COVID-influenced federal sentence reductions using 3582(c)(1)(A)
• Another robust week for COVID-influenced federal sentence reductions using 3582(c)(1)(A)
• With lots more new grants, time for another timely review of the latest COVID-influenced federal sentence reductions using § 3582(c)(1)(A) 
• A big list for a whole week's worth of COVID-influenced federal sentence reductions using § 3582(c)(1)(A) 
• Despite a short work week, still another long list of new COVID-influenced federal sentence reductions using § 3582(c)(1)(A) 
• Bernie Madoff denied federal sentence reduction, but many others receive relief under § 3582(c)(1)(A) on same day
• Another week with lots of federal sentence reductions from judges using § 3582(c)(1)(A) ... dare I wonder about the racial breakdown? 
• So many more federal sentence reductions using § 3582(c)(1)(A) to report before week concludes 
• Though only mid-week, another long list of new COVID-influenced federal sentence reductions using § 3582(c)(1)(A)

"Failing Grades: States’ Responses to COVID-19 in Jails & Prisons"

The title of this post is the title of this notable new ACLU and Prison Policy Initiative report by Emily Widra and Dylan Hayre.  Here is how it gets started:

When the pandemic struck, it was instantly obvious what needed to be done: take all actions possible to “flatten the curve.”  This was especially urgent in prisons and jails, which are very dense facilities where social distancing is impossible, sanitation is poor, and medical resources are extremely limited.  Public health experts warned that the consequences were dire: prisons and jails would become petri dishes where, once inside, COVID-19 would spread rapidly and then boomerang back out to the surrounding communities with greater force than ever before.

Advocates were rightly concerned, given the long-standing and systemic racial disparities in arrest, prosecution, and sentencing, that policymakers would be slow to respond to the threat of the virus in prisons and jails when it was disproportionately poor people of color whose lives were on the line.  Would elected officials be willing to take the necessary steps to save lives in time?

When faced with this test of their leadership, how did officials in each state fare? In this report, the ACLU and Prison Policy Initiative evaluate the actions each state has taken to save incarcerated people and facility staff from COVID-19.  We find that most states have taken very little action, and while some states did more, no state leaders should be content with the steps they’ve taken thus far.  The map below shows the scores we granted to each state, and our methodology explains the data we used in our analysis and how we weighted different criteria.

The results are clear: despite all of the information, voices calling for action, and the obvious need, state responses ranged from disorganized or ineffective, at best, to callously nonexistent at worst.  Even using data from criminal justice system agencies — that is, even using states’ own versions of this story — it is clear that no state has done enough and that all states failed to implement a cohesive, system-wide response.

In some states, we observed significant jail population reductions.  Yet no state had close to adequate prison population reductions, despite some governors issuing orders or guidance that, on their face, were intended to release more people quickly.  Universal testing was also scarce.  Finally, only a few states offered any transparency into how many incarcerated people were being tested and released as part of the overall public health response.  Even in states that appeared, “on paper,” to do more than others, high death rates among their incarcerated populations indicate systemic failures.

The consequences are as tragic as they were predictable: As of June 22, 2020, over 570 incarcerated people and over 50 correctional staff have died and most of the largest coronavirus outbreaks are in correctional facilities.  This failure to act continues to put everyone’s health and life at risk — not only incarcerated people and facility staff, but the general public as well.  It has never been clearer that mass incarceration is a public health issue.  As of today, states have largely failed this test, but it’s not too late for our elected officials to show that they can learn from their mistakes and do better.

For a kind of video version of this story of significant and dangerous failure, also be sure to check out John Oliver's coverage.

Just a few of many, many prior posts from just the last month:

• "Pandemics, Risks and Remedies"
• Two notable recent studies detailing connections between incarceration and community spread of COVID-19
• Great coverage and perspectives on incarceration nation thanks to a global pandemic
• Rounding up some carceral headlines and stories as COVID continues
• Another round-up of troubling carceral headlines and stories as coronavirus continues to ravage incarcerated populations 
• "Proposed Public Health and Public Safety Pathways for Criminal Justice System Responses to Covid-19"
• Vera Institute of Justice issues new guidance brief urging action to respond to coronavirus in correctional facilties

Federal prison population, per BOP accounting of "Total Federal Inmates," drops down to 161,640

Today's check on the federal Bureau of Prisons' updated "Total Federal Inmates" numbers show a continuation of historic declines, though it again appears that the pace of the decline is slowing just a bit.  In a prior post here, I highlighted that, according to BOP's reporting, most weeks through April the federal prison population shrunk around or over 1,000 persons per week.  And through May 2020, as detailed here, the pace of weekly decline increased to an average of around 1,200 fewer reported prisoners in federal facilities.  As we headed into and now though June, the new numbers at this webpage continue to show significant, but slightly reduced, weekly declines: the BOP reported population dropped from 166,647 (as of May 21) to 165,575 (as of May 28) to 164,438 (as of June 4) to 163,441 (as of June 11) to 162,578 (as of June 18) to now a BOP reported total of 161,640.

I continue to suspect that these persistent declines in total inmates is mostly a function of delays in federal case-processing pipelines from COVID shutdowns; I keep expecting that we will, eventually, see some (considerable?) move upward in these numbers.  But with the recent surge in COVID cases in some regions and some talk of renewed shut-downs, perhaps the federal prison-population reverberations of COVID will be continuing on and on.  And maybe, as I have wistfully speculated before, we are still some ways from the bottom here and are still moving toward a much lower "new normal" for the federal prison population.  

A few of many prior related posts:

• Federal prison population, thanks in part to the FIRST STEP Act, hits lowest level in over 15 years (from July 2019)
• Federal prison population, due seemingly to COVID responses, hits another modern low (which is still very high) (from April 2020)
• According to BOP reporting, federal prison population now shrinking about 1,000 persons per week (from April 2020)
• Federal prison population drops below 170,000 for first time in nearly two decades (from May 2020)
• As federal prison population continues remarkable decline, can anyone predict what might be a new normal? (from May 2020)
• Is the number of federal prisoners about to spike up as BOP moves nearly 7000 new inmates into federal facilities? (from May 2020) 
• Federal inmate population, as reported by BOP, continues steady decline (which continues my wondering about data)(from May 2020)
• "Total Federal Inmates," as reported by BOP, drops below 165,000 (from three weeks ago)
• "Total Federal Inmates," as reported by BOP, drops another 1000 down to 163,441 (from two weeks ago)
• BOP accounting of "Total Federal Inmates" continues to drop, though pace may be slowing (from last week)

Making the case against LWOP, the bigger and badder death penalty

This new NBC News commentary by Peter Irons makes the case for paying more attention to, and getting rid of, LWOP sentences.  The piece's full headline highlights its themes: "A prison sentence of life without parole isn't called the death penalty.  But it should be.  Before we cheer the huge drop in capital punishment cases, we need to revisit and replace the extended death penalty — life without parole."  I recommend the full piece, and here are excerpts:

[A]s more and more prosecutors seek the death penalty more infrequently, if at all­­, they routinely press for LWOP sentences in first-degree murder cases, and sometimes for second-degree murder and armed robbery.  There’s no uniform standard to decide which defendants deserve to eventually be eligible for parole and which don’t; these choices are inherently “arbitrary and capricious” and the antithesis of fairness.

As a result, even with death-sentenced inmates at a modern low of some 2,800, there are now more than 53,000 serving LWOP sentences, a four-fold increase in the past two decades.  Another 44,000 are serving “virtual life” sentences of 50 or more years, past the life expectancies of almost all inmates. In other words, some 97,000 inmates have still been condemned to die behind bars....

Those who receive life sentences with parole eligibility return to prison for another violent crime at a rate of only 1.2 percent.  Though LWOP inmates, by definition, cannot present any evidence of rehabilitation to a parole board, it’s reasonable to expect that ending life without parole sentences would not unleash a new murder wave.  Doing so would also save taxpayers up to $40,000 for each year of further incarceration, not to mention the costs for the growing number of elderly inmates with serious health problems. That’s the pocketbook argument against the practice.

A better argument, in my opinion, is that restoring parole eligibility to all convicted murderers (with no guarantee of release, of course) would encourage inmates to keep their disciplinary records clean and to participate in educational and vocational programs to improve their chances of successful re-entry into their communities and job markets....

My personal preference would be to revise state laws to give all convicted murderers a chance for parole after serving a minimum of 10 or 15 years (those who get life sentences with the possibility of parole serve an average of 13.4 years), and a presumption of parole after age 55 or 60, by which time most inmates have “aged out” of further crime.  But I understand both are unlikely of adoption in all but the bluest states, so I suggest instead urging governors to exercise their pardon and commutation powers in cases of demonstrated rehabilitation and remorse....

The nascent campaign against LWOP has already secured a beachhead from which it can press for eventual abolition. The Supreme Court ruled in 2012 in Miller v. Alabama that juvenile murderers cannot be given a mandatory LWOP sentence.  By the same token, even those LWOP inmates who murdered as adults deserve resentencing consideration.  The only factor in deciding whether to return an inmate to society is whether they are likely to endanger others.  To say that any prisoner, whatever their crime and sentence, cannot possibly show remorse and rehabilitation, as a life-without-parole punishment does, is to say that these “bad” people — unlike the rest of us — cannot change for the good and denies their common humanity.

Latest (and free) Federal Sentencing Reporter issue on "Creating a Crisis: Growing Old in Prison"

As mentioned in this prior post, the academic publisher of the Federal Sentencing Reporter, University 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, especially now that it allows me to flag this latest and timely FSR issue and some of the articles therein.  This new issue was put together by guest editor Jalila Jefferson-Bullock, and here are a few paragraphs taken from her introduction to the issue which provides a partial overview:

The Creation of a Crisis by Jalila Jefferson-Bullock:

This Issue of FSR is dedicated to the critical matter of aging in prison.  While COVID-19 media coverage currently highlights the plight of our most vulnerable prisoners, the graying of America’s prisons is nothing new.  One of the most foreseeable, yet ironically ignored, consequences of the harsh sentencing laws of the 1980s and 1990s is the dramatic upsurge in prison population through the predictable process of human aging.  Presently, elderly inmates comprise 19% of the total prison population, and that number continues to rise.  The cost of medical care for elderly offenders is five times greater for prisons with the greatest elderly population than for those with the least amount of elderly inmates, due, in large part, to factors that naturally accompany growing older.  Prisoners also experience accelerated aging and therefore require varied medications, special diets, social interventions, and individualized supervision much earlier than members of the general population of the same age.  By their own admission, prisons are ill-equipped to manage the mammoth health care, social, and other costs associated with imprisoning the elderly.  The costs of incarcerating aged offenders are quite unsustainable....

This Issue tackles the prison ‘‘silver tsunami’’ phenomenon rather creatively.  Our contributors include established law and sociology scholars, practicing attorneys, veteran politicians, and returned citizens.  Their voices herald personal narrations of the inhumanity of prion health care, the power of redemption after long years of confinement in a brutal prison system, the importance of committed, community partnerships in rebuilding retuned citizens’ lives, and deep, scholarly insight into the actual, harsh conditions that vulnerable, elderly inmates face.  This Issue represents various, unique perspectives on the crisis of aging in prison and, overall, provides a glimpse into what life is like for the incarcerated elderly.  Here, we read firsthand accounts of the inability of the prison system to safeguard its most vulnerable population.  We also learn, through authentic accounts, that despite the injustice doled out to our imprisoned elderly, there is hope and the prospect of embracing a new, bright future. 

Amendments to compassionate release policies and the passage of the First Step Act represented opportunities for the federal prison system to provide relief to elderly offenders suffering ill-reasoned, illogically lengthy terms of incarceration.  Unfortunately, neither resulted in widespread releases.  In the wake of COVID-19, policies authorized by the CARES Act offer an occasion to explore early release of elderly offenders afresh.  This time, we must get it right.  

Along with the introduction and relevant primary materials, this FSR issues includes these articles:

A Divinity That Shapes Our Ends: From Life Without Parole to the House of Life Initiative by The Elsinore Bennu Think Tank for Restorative Justice

The Unusual Cruelty of Nursing Homes Behind Bars by Rachel E. López

The Personal Case For Releasing The Elderly A Real Second Chance by Thomas J. Farrell

The Special Perils of Being Old and Sick in Prison by William J. Jefferson

Emergency Parole Release for Older Parole-Eligible DOC Inmates by David I. Bruck

Let My People Go: A Call for the Swift Release of Elderly Federal Prisoners in the Wake of COVID-19 by Jalila Jefferson-Bullock

FINAL 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).  Because the deadline for submissions is next week (June 30), this is going to be my reminder.  But it is certainly not too late to get involved; the basic details are explained on this webpage, more background appears in this document, and here are the essentials:

About

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.

"Crisis and Coercive Pleas"

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

Even in the best of times, trials are rare.  In the midst of the current pandemic, trials have vanished altogether in certain parts of the country; in other areas they occur sporadically as courts grapple with how to hold trials safely.  This makes sense from a public health perspective, but the lack of trials, along with other challenges posed by the coronavirus crisis, poses a heightened risk that defendants will be coerced into false and unfair pleas.

Coercive pleas are part and parcel of the criminal system, but the current crisis provides several avenues for even greater abuse of defendants through the plea process.  In Part I of this essay I explore the particular concerns related to plea bargaining during the COVID-19 crisis and address three broad areas: 1) the particularized fear of a prison or jail sentence during a pandemic, 2) the difficulty with holding — or complete lack of — jury trials, and 3) issues with access to counsel and other procedural challenges that defendants will face during and after the crisis.

Part II offers some solutions to mitigate the risk of coercive pleas.  The essay encourages criminal courts to think about holding jury trials via video, despite the many obvious challenges.  The essay also defines several ways in which judges can take a more active role in protecting against coercive pleas during the pandemic.  And, as the essay explores, this crisis may also provide opportunities for creative problem solving that can outlast the virus.

Roger Stone's past sentencing and coming prison time making headlines

I am not sure which of these stories surprises me less:

From ABC News, "Citing coronavirus fears, Roger Stone files motion to delay reporting to Georgia prison"

A week before President Donald Trump's longtime friend and adviser Roger Stone was scheduled to turn himself in to federal prison in Georgia to begin his more than three-year sentence, his lawyers filed a motion seeking to delay his surrender, citing the deadly risk posed by the coronavirus outbreak.

“This motion is based on the exceptional circumstances arising from the serious and possibly deadly risk [Stone] would face in the close confines of a Bureau of Prisons facility, based on his age and medical conditions,” the motion says. “Those medical conditions make the consequences of his exposure to the COVID-19 virus in a prison facility life-threatening.”

The 67-year-old was sentenced to 40 months in prison on Feb. 20 by Judge Amy Berman Jackson in Washington, D.C. Stone's attorneys also asked to file a letter under seal from a physician concerning their client's medical conditions.

From Politico, "Prosecutor says he was pressured to cut Roger Stone 'a break' because of his ties to Trump"

A prosecutor who withdrew from the Roger Stone case after Justice Department leaders intervened to recommend a lighter sentence intends to testify before Congress that he and his colleagues were repeatedly pressured to cut Stone "a break," and were told that it was because of his relationship with President Donald Trump.

"What I heard – repeatedly – was that Roger Stone was being treated differently from any other defendant because of his relationship to the President," Aaron Zelinsky, one of four prosecutors who quit the case, plans to tell the House Judiciary Committee Wednesday, according to his prepared testimony. "I was also told that the acting U.S. Attorney was giving Stone such unprecedentedly favorable treatment because he was 'afraid of the President.'"

Senators Durbin and Grassley introduce new bill to make modest, but still important, reforms to federal elderly home release and compassionate release

As reported in this new press release, "U.S. Senators Dick Durbin (D-IL) and Chuck Grassley (R-IA), authors of the bipartisan First Step Act, landmark criminal justice reform legislation, introduced new, bipartisan legislation to reform the Elderly Home Detention Pilot Program and compassionate release from federal prisons. "  The release provides some notable contextual data and well some details of the bill's particulars:

Sadly, more than 80 federal prisoners with pre-existing medical conditions that made them more vulnerable to COVID-19 have died as a result of the virus, more than half of whom were over 60 years old.  Elderly offenders, the fastest-growing portion of the prison population, have much lower rates of recidivism and are much more expensive to incarcerate due to their health care needs. 

Since enactment of the First Step Act, the Federal Bureau of Prisons (BOP) has opposed the vast majority of compassionate release petitions.  In 2019, 1,735 requests for release were initiated by or on behalf of prisoners, of which 1,501 were denied by wardens and 226 of which were forwarded to the BOP Director.  Of these 226, BOP approved only 55 and denied 171.  Since March of this year, only about 500 inmates have been granted compassionate release in the midst of the pandemic, nearly all of them by court order over the objections of the Department of Justice and BOP.  BOP has reportedly refused to approve any compassionate releases based on vulnerability to COVID-19.

“At the end of 2018, Congress came together to pass one of the most important criminal justice reform laws in a generation.  Now we have an obligation to ensure that this law is properly implemented,” Durbin said.  “My legislation with Senator Grassley would help ensure that the most vulnerable prisoners are quickly released or transferred to home confinement for the remainder of their sentence – just as the First Step Act intended.  This is especially critical during the COVID-19 pandemic to protect against the spread of this deadly virus.  I’m hopeful that this commonsense, bipartisan legislation will pass swiftly through the House and Senate and will be signed into law.”

“In the middle of a pandemic the federal government ought to be doing everything it can to protect the inmates in its care.  We already established important home confinement and early release programs in 2018, which are especially important right now as older inmates face very serious risks because of the virus.  Our bill will clarify and expand those programs we wrote into the First Step Act, so we can better protect these vulnerable populations,” Grassley said.

Specifically, the COVID-19 Safer Detention Act would reform the Elderly Home Detention Pilot Program and compassionate release by:

• Clarifying that the percentage of time served required for the Elderly Home Detention Pilot Program should be calculated based on an inmate’s sentence, including reductions for good time credits (H.R. 4018, which passed the House by voice vote);

• Expanding the eligibility criteria for the Elderly Home Detention Pilot Program to include nonviolent offenders who have served at least 50 percent of their term of imprisonment;

• Clarifying that elderly nonviolent D.C. Code offenders in BOP custody are eligible for the Elderly Home Detention Pilot Program and that federal prisoners sentenced before November 1, 1987 are eligible for compassionate release;

• Subjecting elderly home detention eligibility decisions to judicial review (based on the First Step Act’s compassionate release provision); and

• Providing that, during the period of the pandemic, COVID-19 vulnerability is a basis for compassionate release and shortening the period prisoners must wait for judicial review for elderly home detention and compassionate release from 30 to 10 days.

The following organizations support the COVID-19 Safer Detention Act:  Aleph Institute, Americans for Tax Reform and Digital Liberty, Drug Policy Alliance, Due Process Institute, FAMM, Federal Public and Community Defenders, FreedomWorks, Justice Action Network, National Association of Criminal Defense Lawyers (NACDL), Right on Crime, Sentencing Project, Taking Action For Good, Texas Public Policy Foundation (TPPF), and Tzedek Association.

A section-by-section of the legislation is available here.

Bill text is available here.

I have placed in bold the provisions of this new bill that strike me as particularly noteworthy and that could prove most consequential. In short form, this bill would seem to authorize (though not require) judges to move most persons over the age of 60 from federal prison into home confinement as soon as they approach serving about half of their initially imposed prison sentence.  Sound like a great idea to me, and it also sounds like another version of another kind of "parole light" proposal of the sort I discussed a few years ago in this article. 

An NYC window into COVID's disruption of the administration of criminal justice

The New York Times has this lengthy new front-page article under the headline "Pandemic Pushes New Yorkers Into Legal Limbo."  The piece merits a full read as just one version of so many stories about how COVID is echoing through criminal justice systems.  Here are some excerpts:

The coronavirus outbreak is putting extraordinary stress on New York City’s judicial system, forcing lengthy delays in criminal proceedings and raising growing concerns about the rights of defendants.

Since February, the backlog of pending cases in the city’s criminal courts has risen by nearly a third — to 39,200.  Hundreds of jury trials in the city have been put on hold indefinitely.  Arraignments, pleas and evidentiary hearings are being held by video, with little public scrutiny.  Prosecutions have dropped off, too, as the authorities have tried to reduce the jail population.

Three months into the crisis, the city’s once bustling courthouses are barely recognizable.  Their spacious lobbies and halls, formerly filled with people, are nearly empty, and in the courtrooms clerks in surgical masks tend to virtual hearings on giant video screens.  Two centuries of face-to-face judicial traditions have either been cast aside or moved online....

Two weeks ago, the state courts in New York City took a first small step toward physically reopening: Judges started returning to their chambers, though they are still holding court virtually.  No one has quite figured out yet how to bring the public back safely to New York City courthouses, nor how to resume trials and state grand jury hearings. Officials said the challenge of balancing public health and the requirements of the law is likely to persist for some time.  “It’s a situation we’ve just never seen before,” said Melinda Katz, the Queens district attorney....

The halt on jury trials, while highly unusual and difficult for defendants, has not yet reached a crisis point.  Even under the best conditions, it can take years for cases to move from arrest to trial, and only about 5 percent ever get that far; most end with a plea bargain.  Still, jury trials are the heart of the justice system, and state court officials face significant hurdles as they resume.  “I can’t tell you we have a precise plan,” said Judge Lawrence Marks, the state’s chief administrative judge. “It will be one of the last phases.”

Unlike other court proceedings, jury trials require people to hear evidence together and then deliberate in close quarters.  “The whole idea of ‘12 Angry Men’ screaming at each other over a telephone, over a Zoom network, would be ridiculous,” said one defense lawyer, Joel Cohen.

In Federal District Court in Manhattan, architects and carpenters have been redesigning courtrooms, building jury boxes with additional space and inserting plexiglass dividers to keep jurors safer. Shields are being put in front of witness stands and at lecterns where lawyers argue.  Certain precautions that are being considered may raise legal issues.  “You can’t put a mask on the witnesses in a criminal trial because the defendant has the right to see them,” Chief Judge Colleen McMahon said.  “Jury trials are way, way down the road,” she added.

Some jurists warn that a prolonged delay in resuming trials could violate the Constitution.  “If well past July and for months to come, it is still dangerous for 12 people to gather together in tight quarters to hear and determine civil and criminal cases, it is not easy to see how the constitutional right to a jury trial will be genuinely met,” Judge Jed S. Rakoff wrote in The New York Review of Books....

People who are arrested no longer set foot inside a physical courtroom to hear the charges against them in an arraignment. They now sit in a windowless booth in a courthouse cell, looking into a camera and speaking into a microphone on the wall.  Felony arraignments have fallen by 50 percent this spring compared to last, largely because far fewer people were arrested in the first weeks of the pandemic.  That has made the transition to video somewhat easier, though not any faster.  In the months after the courts moved to a virtual system, the average arrest-to-arraignment time has increased by as much as three hours.

Before the pandemic, lawyers generally did most of the talking in court. In the video hearings, defendants, no longer in the same room as their lawyers, have been more prone to sudden and sometimes incriminating outbursts....  Tina Luongo, chief criminal defender for the Legal Aid Society, mentioned another challenge: The inability to see a witness's body language and quietly confer with the defendant seriously hampers defense lawyers. “We’ve got to figure that out,” she said. “When we’re all on one Skype link, how do I talk to my client in a confidential way?”  Before hearings begin, lawyers can meet virtually with clients in private Skype conference rooms, but the system is not foolproof....

Perhaps the biggest headache for the state courts has been the inability to convene grand juries, which given their size — they are usually composed of 16 to 23 people — have been unable to gather safely. Grand juries have traditionally acted as a citizen’s check on overzealous prosecutions by scrutinizing evidence and approving formal charges. They are also used by state and federal prosecutors to conduct long-term investigations.  Without them, the rights of both defendants and crime victims are less assured....

Unable to convene grand juries, the city’s five district attorneys are turning instead to preliminary hearings, which have not been conducted in New York in decades.  At the hearings, judges hear witnesses, consider evidence and decide if prosecutors’ charges are warranted. Like everything else these days, these hearings are being held by video....

The city’s two federal courts, in Manhattan and Brooklyn, have adapted more smoothly to the crisis.  Under their auspices, grand jurors began meeting again recently outside the city, in White Plains and Central Islip.  And in both courts, regular audio and video hearings have been held, with dial-in numbers for the public clearly posted on electronic dockets.  But obstacles remain, like how to bring in large numbers of prospective jurors for screening.

Disappointingly, this piece does not address sentencing issues and challenges in state or federal courts.  As always, I welcome comment from readers about their recent COVID-shaped experiences in that arena.

Intriguing (and discouraging?) criminal justice elements in new polling mostly about policing reform

This new release, headlined "Widespread Desire for Policing and Criminal Justice Reform," reports on a new Associated Press-NORC Center for Public Affairs Research poll that is mostly about policing reforms but includes a few notable criminal justice questions.  Here are excerpts about the poll, with my emphasis on its criminal justice elements:

Large majorities of the public support the implementation of policies aimed at reducing police violence, but few back a reduction in the funding for law enforcement.  Most Americans say the country’s criminal justice is in need of serious transformation, and police officers who kill or injure civilians are treated too leniently by the courts.

In the national AP-NORC survey, which was conducted as protests spread across the country in response to the killing of George Floyd, a handcuffed Black man who died after a white police officer pressed his knee into Floyd’s neck for several minutes, nearly half regard police violence to be very serious problem.

The public agrees that several reforms could help prevent police violence against civilians.  Americans, regardless of race, strongly support policies that include body cameras, holding police accountable for excessive force and racially biased policing, and creating criteria for the use of force.  There is little support for reducing funding for law enforcement.

There is majority support in both parties for a number of reforms.  However, Democrats are more likely than independents and Republicans to support all the guidelines to prevent police violence included in the survey.  The biggest partisan gaps arise when it comes to limiting the use of military equipment, reducing funding for agencies, and limiting the criminal justice system’s focus on policing and prosecuting low level offenses.

More than two-thirds of the public say that criminal justice system needs either major changes or a complete overhaul.  Black Americans are more likely than white Americans to say the system needs a complete transformation.  Views differ based on partisanship with 44% of Democrats saying the system needs a complete change while just 27% of independents, and 12% of Republicans say the same.

Most Americans — including a majority of white and Black adults — believe that police officers who cause injury or death in the course of their job are treated too leniently by the justice system.  In 2015, just 41% of all adults and 32% of white Americans said the same.

Democrats are almost twice as likely as Republicans to say police are treated too leniently by the justice system (85% vs. 43%).

The nationwide poll was conducted June 11-15, 2020 using the AmeriSpeak® Panel, the probability-based panel of NORC at the University of Chicago. Online and telephone interviews using landlines and cell phones were conducted with 1,310 adults. The margin of sampling error is +/-3.7 percentage points.  In addition, Black adults were sampled at a higher rate than their proportion of the population for reasons of analysis. The overall margin of sampling error for the 377 completed interviews with Black respondents is +/- 5.3 percentage points.

I suppose I should take a "glass-half-full" view on this poll and be encouraged that so many Americans seem to be in favor of policing and criminal justice reforms.  But I cannot help but see a lot of "glass-half-empty" elements such as the fact that roughly two-thirds of Republicans and Independents oppose "reducing the criminal justice system’s focus on policing and prosecuting low level offenses."  In the wake of all the protests about lock-down orders and their enforcement, not to mention significant support for marijuana reforms, I would have expected and hoped support for this kind of reform to be stronger.  Similarly, with all of Prez Trump's attacks on the FBI and high-profile prosecutions of his various associates, I would have hoped for a larger number of Republicans to say our criminal justice system needs a complete overhaul.

Long story short, I think anyone and everyone advocating for any kinds of criminal justice reforms must not lose sight of the power of status quo biases, especially for those who are powerful and who do not bear the brunt of criminal justice biases.  This poll suggests we may have a unique opportunity for unique reforms in the coming weeks and months and years, but it also should be a reminder that reforms are always an uphill battle.

"The Substance of Montgomery Retroactivity: The Definition of States’ Supremacy Clause Obligation to Enforce Newly-Recognized Federal Rights in Their Post-conviction Proceedings and Why It Matters"

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

In Montgomery v. Louisiana, 136 S.Ct. 718 (2016), the Supreme Court made a decision of far-reaching importance to the criminal justice system: the Supremacy Clause requires states adjudicating post-conviction attacks to give full retroactive effect to “substantive” new rules of federal constitutional law.

The significance of this holding has so far been under-appreciated because of the assumption that “substantive” has the same narrow meaning in the context of the state’s obligations under the Supremacy Clause as it does under Teague v. Lane, 489 U.S. 288 (1989), which sets forth prudential limitations on the claims that the federal courts will entertain when adjudicating federal habeas corpus attacks on state criminal convictions.

But, this article argues, the two contexts are not the same and the assumption is unwarranted.  To be sure, rules that are “substantive” under Teague are also substantive under Montgomery.  But because Montgomery is based on the Supremacy Clause, the class of “substantive” federal rules for Montgomery purposes should be far broader than it is for Teague purposes.

“Substantive” rules under Montgomery, I propose, include all those whose policy underpinnings extend beyond enhancing the factual accuracy of particular decisions.  Examples of such rules are ones whose aims include discountenancing government misconduct (e.g., barring evidence derived from coerced confessions or unreasonable searches) and achieving full community participation in the judicial process (e.g., adding new groups to the ones that may not constitutionally be excluded from jury service, and expanding the categories of juror bias that a defendant must be permitted to litigate).

Adopting the proposed definition will have structural benefits to the system of criminal justice adjudication.  The Montgomery decision will necessarily have the effect of increasing the number of state post-conviction decisions.  The broader the definition of “substantive” the more pronounced the effect.  The more pronounced the effect the better off the criminal justice system will be, for two reasons.  First, state post-conviction decisions will be some extent be able to fill the gap in the normal creation of new rules by lower federal courts that has resulted from the restrictive ruling in Teague.  Second, the greater the salience of post-conviction decisions, the greater the pressure on the states to improve the quality of their post-conviction systems.

Thus, in the interests of making modest but real improvements in the quality of our criminal law, lawyers, legislators, academics, judges, and all individuals concerned about justice should seek adoption of the proposal of this article.

Rounding up some recent sentencing scholarship new to SSRN

In this space, I typically only flag "brand new" scholarship when if first appears on SSRN and which has not been previously available in print or elsewhere online.  But I have seen a number of notable and still timely pieces with 2019 publication dates that have just recently been posted to SSRN.  Because I always benefit from additions to my summer reading list, I figured I would flag this quartet of "new to SSRN" pieces in this one post:

What Makes the Death Penalty Arbitrary? (And Does It Matter if It Is?) by Chad Flanders

18 U.S.C. section 3553(a)'s Undervalued Sentencing Command: Providing a Federal Criminal Defendant with Rehabilitation, Training, and Treatment in 'the Most Effective Manner' by Erica Zunkel

The Bureaucratic Takeover of Criminal Sentencing by Maimon Schwarzschild

Categorically Redeeming Graham v Florida and Miller v Alabama: Why the Eighth Amendment Guarantees All Juvenile Defendants a Constitutional Right to a Parole Hearing by Parag Dharmavarapu

No new cert grants from SCOTUS as Justice Thomas laments failure to take up whether First Amendment limits criminalizing "reckless threats"

This morning's Supreme Court order list yet again lacks any new grants of certiorari (which, as explained in this recent post, I have come to expect from this court).  But, showcasing as he did last week that he will call out his colleagues for failing to take up issues he considers important, Justice Thomas has a dissent from the denial of cert in Kansas v. Boettger, No. 19–1051.  Here is how this six-page dissent gets started:

Kansas asks us to decide whether the First Amendment prohibits States from criminalizing threats to “[c]ommit violence . . . in reckless disregard of the risk of causing . . . fear.” Kan. Stat. Ann. §21–5415(a)(1) (2018).  Respondent Timothy Boettger was convicted for telling the son of a police detective that he “‘was going to end up finding [his] dad in a ditch.’” ___ Kan. ___, ___, 450 P. 3d 805, 807 (2019).  Respondent Ryan Johnson was separately convicted for telling his mother that he “‘wish[ed] [she] would die,’” that he would “‘help [her] get there,’” and that he was “‘going to f***ing kill [her] a***.’” ___ Kan. ___, ___, 450 P. 3d 790, 792 (2019).  The Kansas Supreme Court overturned both convictions and held that reckless threats are protected by the First Amendment, relying on Virginia v. Black, 538 U.S. 343 (2003).

In my view, the Constitution likely permits States to criminalize threats even in the absence of any intent to intimidate. See Elonis v. United States, 575 U.S. 723, 760– 767 (2015) (dissenting opinion).  It appears to follow that threats of violence made in reckless disregard of causing fear may be prohibited.  The Kansas Supreme Court reached the opposite conclusion by overreading our decision in Black, which did not answer the question presented here.  Other courts looking to Black, however, have upheld similar statutes.  State v. Taupier, 330 Conn. 149, 193 A.3d 1 (2018); Major v. State, 301 Ga. 147, 800 S.E.2d 348 (2017).  I would grant the petition for certiorari to resolve the split on this important question.

"Investing in Failure: 2020 Ballot Initiative to Repeal Justice Reform Would Come at a High Cost to Californians"

The title of this post is the title of this recent report from the Center on Juvenile and Criminal Justice making the case against a ballot initiative before California voters this year.  Here is the report's introduction:

In November 2020, Californians will vote on a ballot initiative titled Restricts Parole for Non-Violent Offenders.  Authorizes Felony Sentences for Certain Offenses Currently Treated Only as Misdemeanors.  Initiative Statute (“the initiative”), which would roll back key elements of the state’s recent justice reforms, including Public Safety Realignment, Proposition 47, and Proposition 57 (AB 109, 2011; Prop 47, 2014; Prop 57; 2016; SOS, 2018).  In recent years, the Center on Juvenile and Criminal Justice (CJCJ) has analyzed the effects of other major reform initiatives, including the “Three Strikes” law reform, Proposition 47, and Proposition 57 (CJCJ, 2008; 2011; 2014; 2014a; 2014b; Ridolfi et al., 2016; 2016a).  This report considers the current initiative’s effects on budgets, jail and prison populations, and crime rates.  Our analysis suggests that the initiative’s passage could siphon scarce state resources and increase populations in jails and prisons to critical levels.

Seventh Circuit panel finds way above-guideline (stat-max) sentence to be "not sufficiently" justified

As long-time readers know, I have long been troubled be the fact that the Booker-created reasonableness standard of review has been pretty toothless as a check on extreme federal sentences. But because so few sentences have been found unreasonable, any such decision is noteworthy, and so here I highlight a new Seventh Circuit panel decision handed down last week in US v. Jones, No. 19-1644 (7th Cir. June 19, 2020) (available here). The 12-page ruling is worth reading in full, and here is how the opinion starts and one notable substantive paragraph:

In 1998, a federal jury convicted Jerry Jones of two carjackings, an armed bank robbery, and using firearms during those crimes of violence.  The district court sentenced him to 840 months in prison. Twenty years later, the district court vacated its original sentence and ordered resentencing because Jones no longer qualified as a career offender under the federal Sentencing Guidelines.

At resentencing, Jones’s effective Guidelines range was 348–390 months.  The district court deviated from the Guidelines and once again sentenced Jones to 840 months in prison. That was an increase of 450 months, approximately 215% above the high end of Jones’s Guidelines range.  Jones now appeals his sentence.  Because the district court did not sufficiently justify the extent of its deviation from the Guidelines, we vacate its judgment and remand for resentencing....

Here, the district court acknowledged the need to avoid unwarranted sentence disparities, noting that Jones’s co-defendants—“with similar records [and] similar conduct” — had received sentences of 675 months and 728 months.  Notwithstanding the three defendants’ similar records and similar conduct, Jones received a sentence 165 months longer than one co-defendant and 112 months longer than the other.  The court did not explain why it singled Jones out for different treatment.  Quite the contrary, it synthesized the offenders and their offenses, observing they had “similar records [and] similar conduct.”  It was therefore incumbent on the court to specify what warranted Jones’s sentence disparity.  See 18 U.S.C. § 3553(a)(6).  Without such a justification, and because the court did not sentence Jones within the Guidelines range, we cannot assure ourselves that the court sufficiently considered the interest in consistency between similarly situated defendants.

No matter how long I follow the federal sentencing system, I will continue to be awed (in a bad way) by the scale of sentences that get handed out in seemingly run-of-the-mill cases. Here, after co-defendants receive sentences of over 55 years and 60 years, the judge decided that he should round up to an even 70 years for Mr. Jones (meaning that, even with time off for good behavior in prison, he could be not released until age 95).  I am pleased that this Seventh Circuit panel is now demanding a more meaningful justification for such a sentence, but I am displeased that such extreme sentences can be deemed justifiable in part because they are just not all that unusual in the federal system.