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July 25, 2020

Is consideration of gender a must or a no-no in risk assessment tools?

The question in the title of this post is prompted by this latest new article in the on-going terrific Law.com/Legaltech News series unpacking modern risk assessment tools.  The headline and full subheadline of the piece reveals why it prompts this question: "Constitutional Brawl Looms Over How Risk Assessment Tools Account for Gender: Researchers say that scoring men and women differently is essential to account for risk assessment tools’ inherent gender bias.  But it’s an open question whether these adjustments are violating state or constitutional law."  I recommend the piece in full, and here are excerpts:

While there’s been a lot of focus on how risk assessment tools treat different racial demographics, little attention has been paid to another issue that may be just as problematic: how gender factors into risk scores. Researchers say accounting for the differences in gender ensures that risk assessments are more accurate, but exactly how they do so may run into constitutional challenges.

Legaltech News found one gender-specific risk assessment tool currently implemented in at least two states: the Women’s Risk and Needs Assessment (WRNA), which like the the Ohio Risk Assessment System (ORAS), was created by the University of Cincinnati. Kansas uses the WRNA to assess parolees’ risk in a women’s prison in Topeka, while Montana deploys it for women on probation or parole throughout its Department of Corrections....

The reason WRNA is needed in the first place is because most risk assessment instruments are validated (i.e. created) on a population that is majority male, in large part due to current gender imbalance in the criminal justice system (i.e. more men than women commit crimes and become incarcerated).

Dr. Teresa May, department director of the Community Supervision & Corrections Department in Harris County, Texas, also notes that on a whole, men have higher recidivism risk than women. “What we know is when you look at gender, almost always—and in fact I don’t know of an exception—the average rearrest rate [for women] is always much lower than men.”  Without accounting for these differences, a risk assessment could end up scoring women as higher risk than they actually are....

There’s an ongoing debate over whether using  gender as a risk factor, or assigning different cutoff risk levels to both males and females, violates the 14th Amendment. “Basically the Supreme Court of the U.S. has pursued what’s called an anti-classification approach to the equal protection law, which prohibits explicit use of factors like gender and race in making decisions,” says Christopher Slobogin, professor of law at the Vanderbilt University Law School.  He adds, “It is permissible, constitutionally, to use race or gender if there is a compelling state interest in doing so. But generally speaking, the use of race and gender is unconstitutional to discriminate between groups.”

However, in Slobogin’s own opinion, he does not think the “Constitution is violated simply because a risk assessment arrives at different results for similarly situated men and women.” He argues that a tool that uses gender as a risk factor and one that has different cutoff scores for genders are functionally the same, adding in those adjustments makes the instruments more accurate.

But others see it differently. Sonja Starr, professor of law at the University of Michigan Law School, for example, recently told the Philadelphia Inquirer that “use of gender as a risk factor plainly violates the Constitution.” 

July 25, 2020 in Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Technocorrections, Who Sentences | Permalink | Comments (0)

July 24, 2020

Rounding up some more recent prison stories

It has been only a week since I did this round-up of prison pieces, but the press and commentators are keeping these critical stories coming (in part because, sadly, discouraging tales about the realities of prison keep coming). So here is another round-up of some more headlines and pieces catching my eye recently:

July 24, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Never-ending New Jersey drunk driving case highlights fundamental reason why sentencing is so dang hard

9889228-0-image-a-67_1550300070445I am fond of saying "sentencing is dang hard."  (A version of a speech I gave with this title appears in the February 2020 issue of the Federal Sentencing Reporter and also is available here via SSRN.)  An appellate ruling this  week in a high-profile New Jersey case has me recalling this point; this local press piece, headlined "Amy Locane will be sentenced for a fourth time on fatal 2010 DWI charge," provides part of the backstory (with a little emphasis added):

A state appellate court ruled Wednesday that actress Amy Locane, convicted in connection with a fatal drunken driving accident a decade ago in Montgomery, must be sentenced for a fourth time because the first three times were either illegal sentences or sentences imposed outside the state's criminal code.

In a 41-page decision, the appellate court ruled that the latest sentence in the case, handed down by Superior Court Judge Kevin Shanahan in February 2019, was "illogical" based on an "unauthorized sentencing theory" that weighed on what he called "the yin and yang" of the case's facts....

James Wronko, Locane's attorney, said he will ask the state Supreme Court to review the decision. "I don't know what society gains by putting the mother of two back in jail," Wronko said.

Shanahan sentenced Locane to five years in prison, but stayed the sentence because he did not consider her a flight risk. The Somerset County Prosecutor's Office argued the sentence should not be stayed and appealed the judge's decision.

Locane previously had been sentenced to three years in state prison on charges of vehicular homicide and assault by auto in connection with the death of Helene Seeman in the crash.  Her husband, Fred, was severely injured in the crash as the couple were turning into their driveway of their weekend home at 9 p.m. on June 27, 2010.  Locane is an actress who starred with Johnny Depp in “Cry-Baby” and was a featured actress on the TV series “Melrose Place.”...

The Somerset County Prosecutor's Office first appealed the the three-year sentence that was handed down by retired Superior Court Judge Robert Reed who presided over the trial.  Locane served 85 percent of that sentence at the Edna Mahan Correctional Facility for Women in Hunterdon County.  She also successfully completed the conditions of her parole a year ago, Wronko said.  "She's led an exemplary life since her release," Wronko said....

In handing down the five-year sentence, Shanahan said that imposing a higher sentence "would have been an exercise in bad judgment, just like all the others."  Shanahan also said that he was not bound by previous Appellate Court rulings in the case.

"Clearly, changes in (Locane's) personal circumstances warrant divergence," the Appellate Court wrote in the decision, "but it is rudimentary that a trial judge is bound by our prior decision. (Shanahan) ignored the prior findings, while seemingly giving them lip service."

So, in a sad drunk driving case involving a fatal result, New Jersey courts have now been trying and failing to figure out Amy Locane's "right" sentence for now a full decade.  In that time, the defendant has served out a three-year ("wrong") prison sentence (and also paid $1.5 million of a nearly $5 million civil settlement).  I can only speculate about how many (mostly taxpayer) resources have been expended in all these court proceedings trying to get to the "right" sentence, and I wonder whether the surviving victims are really eager to start another decade of wrangling over finding the "right" sentence.

Of course, I keep putting "right" in quotes when discussing this matter because there obviously is no clear right sentence in this case (or most cases).  Sentencing is so dang hard in part because it lacks a clear right/wrong metric no matter what sentencing philosophies one is inclined to adopt.  Moreover, this case especially spotlights the fundamental challenge balancing aggravating offense factors (especially a victim's death) with mitigating offender factors (addiction and lack of criminal history).  The latest appellate opinion (available here) showcases how sentencing judges here have generally focused on the offender, while the appellate judges have focused on the offense (at p. 36):

In this case, the focus has repeatedly shifted away from the crime defendant committed to her individual characteristics at the expense of imposing a just sentence reflective of her offense and the harm she caused.  That she was struggling with addiction did not authorize the court to close its eyes to the harm she inflicted on the victims, the victims' family, and the community.  That harm will never dissipate.  The loss of a loved one, and serious physical injury to another, can never be compensated.

Ironically, another round of resentencing strikes me as a fool's errand in part because I agree with this court's sentiment that the harm caused by Amy Locane "will never dissipate" and "can never be compensated."  Because there is no way the law through any form of punishment can make this kind of harm go away, I struggle to see what is likely to be achieved when the state uses more taxpayer resources to  try, yet again, to add still more years to Locane's sentence.

Notably, there is no mention in this latest appellate opinion of just what the victims of this now-long-ago offense might now want.  I hope for their sake that starting another decade of wrangling over Locane's sentence does not rub salt into their wounds.  I also wonder if some kind of restorative justice efforts have been tried or might now be started to enable the victims and the defendant here to get some measure of peace and resolution that the New Jersey courts have been unable so far to provide.

Prior related post:

July 24, 2020 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

July 23, 2020

Ninth Circuit panel thoughtfully debates whether and when overtime parking fees might be an unconstitutional Excessive Fine

A Ninth Circuit panel yesterday handed down an interesting Eighth Amendment opinion on a topic that is (too) dear to my overtime parking heart. Here is how the majority opinion in Pimentel v. City of Los Angeles, No. 18-56553 (9th Cir. July 22, 2020) (available here), gets started:

In the opening scene of La La Land, drivers stuck in traffic spontaneously sing and dance on top of their cars and in the streets.  Hollywood, however, rarely resembles reality.  On any given day, Los Angelenos sigh and despair when mired in traffic jams.  One small way the City of Los Angeles tries to alleviate traffic congestion is to impose time restrictions — and fines — for limited public parking spaces.  If a person parks her car past the allotted time limit and forces people to drive around in search of other parking spaces, she must pay a $63 fine.  And if she fails to pay the fine within 21 days, the City will impose a late-payment penalty of $63.

Appellants, who had parking fines and late fees levied against them, challenge the Los Angeles parking ordinance as violating the Eighth Amendment’s Excessive Fines Clause.  We hold that the Excessive Fines Clause applies to municipal parking fines.  We affirm the district court's summary judgment order that the initial parking fine is not grossly disproportionate to the offense and thus survives constitutional scrutiny.  But we reverse and remand for the district court to determine whether the City’s late fee runs afoul of the Excessive Fines Clause.

The concurrence authored by Judge Bennett gets started this way:

Because the City of Los Angeles conceded that the Excessive Fines Clause applied to parking “fines,” I concur in the judgment.  I write separately because I do not believe the Excessive Fines Clause should routinely apply to parking meter violations.

July 23, 2020 in Fines, Restitution and Other Economic Sanctions, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (0)

Federal judge rules Michael Cohen must be released back into home confinement

As reported in this CNBC piece, a "federal judge on Thursday ordered the release from prison of President Donald Trump’s former lawyer and fixer Michael Cohen by Friday afternoon."  Here is why:

Judge Alvin Hellerstein found that Cohen was sent back to prison on July 10 in retaliation for failing to agree a day earlier to not to publish a book about Trump as one of multiple conditions for serving the remainder of his three-year prison term on home confinement.  Cohen had been furloughed from prison in late May due to concerns about the coronavirus pandemic.  Shortly before being taken into custody he had been posting on social media about his upcoming book, which is going to be critical of Trump.

“I’ve never seen such a clause, in 21 years in being a judge,” Hellerstein said at a Manhattan federal court hearing, where he questioned the condition that Cohen not publish a book while in home confinement.  “How can I take any other inference but that it was retaliatory? “the judge asked at the hearing, which was held in response to Cohen suing to win his re-release from prison.

During the hearing, the judge was highly skeptical to arguments by a federal prosecutor that Cohen was not locked up in retaliation for the book, or that the condition of not writing a book was not sought for a specific reason.  At one point, when another prosecutor tried to come to the aid of the prosecutor who was answering the judge’s questions, Hellerstein angrily cut him off, reminding him of the rule that only one lawyer argued for each side in a case.

Cohen, who has been in quarantine in the prison in Otisville, N.Y., since his arrival there, will be released by 2 p.m. after begin tested for the coronavirus, and will be driven back to his home on Manhattan’s Upper East Side by his son, Hellerstein said. After his release into home confinement, he will be subject to a number of restrictions on his movement and employment and contact with other people.  But the restriction sought by federal Probation officials that he not speak to reporters, post on social media, or publish a book, is likely to be largely gutted.

Cohen’s lawyer and a prosecutor will in coming days negotiate the issue of any restrictions on Cohen dealing with the media.  Hellerstein suggested it would be inappropriate for Cohen to host a press conference in his apartment with a large number of reporters to discus his book while at the same time still serving his criminal sentence....

Hellerstein noted that court filings by both prosecutors and Cohen’s lawyers agree on a key point: that Cohen and his lawyer, after taking issue with at least one of the conditions, about the book, were left in a room along at some time by a Probation officer, and then confronted by Bureau of Prison officials who arrived to take him into custody.  Hellerstein also repeatedly said that Probation officials had not given Cohen a warning that if he did not agree to all the conditions presented to him at a July 9 meeting with his lawyer that he would be sent back to prison.  “Mr. Cohen was never given a chance to say, ‘If this is it, I will sign,’ ” Hellerstein said.

Prior Michael Cohen posts:

July 23, 2020 in Celebrity sentencings, Impact of the coronavirus on criminal justice, Prisons and prisoners, White-collar sentencing, Who Sentences | Permalink | Comments (1)

Declines in federal prison population, per BOP reporting of "Total Federal Inmates," trending lower

Regular readers are used to my regular Thursday morning updates on COVID-era changes in the federal prison population based on the federal Bureau of Prisons' weekly updated "Total Federal Inmates" numbers.  After months of historic declines, it appears that the federal prison population might be getting closer to flattening out as this week's decline is much lower than we have seen in weeks past.

This prior post detailed that, according to BOP's reporting, most weeks through April the federal prison population shrunk around or over 1,000 persons per week; through May, as detailed here, the pace of weekly decline increased to an average of around 1,200 fewer reported prisoners; through June, as detailed here, declines continued at a slightly reduced rate of about 950 fewer persons reported in all federal facilities on average per week.  As of late July, we have hit another new historic low with the new BOP numbers at this webpage reporting "Total Federal Inmates" at 158,405.  But this represents a decline of "only" 433 persons from last week's reported total of 158,838, and that number was itself a decline of "only" 854 persons from the prior week's total of 159,692. 

I am inclined to guess that more COVID-delayed sentencings and stalled federal prison transfers may now be moving forward; but the lack of any real-time data from the US Sentencing Commission and the opaque nature of BOP data make it hard to be sure just what the reported population numbers represent.  I am unsure just what to predict for the federal prison population in the weeks and months ahead, though I am sure I will keep following this notable echo of our persistent pandemic problems.  

A few of many prior related posts:

July 23, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (1)

July 22, 2020

A midsummer reminder of all persons that Prez Trump has granted clemency to during the COVID-19 pandemic

Drum-roll please....:

Roger Stone

Sadly, that one name amounts to the full list of persons to receive a clemency grant from Prez Trump during the period in which, as detailed on this BOP page, nearly 100 federal prisoners have died and nearly 10,000 have been infected by COVID-19. 

I am not really surprised that Prez Trump has entirely failed to deliver on his promise back in March to look at freeing elderly "totally nonviolent" offenders from federal prisons amid the  pandemic.  But I figure now is as good a time as any to highlight again that Prez Trump could and should, via just a stroke of a pen, bring clemency relief to the many, many federal prisoners who, like Roger Stone, are older, medically vulnerable and present no clear risk to public safety. 

Because Prez Trump seems now eager to do some things differently in response to his sagging poll numbers, perhaps he should consider focusing in this realm on something a lot more popular than he is.  Specifically, I am talking about marijuana, while imagining the positive press Prez Trump would likely garner by granting clemency to the lifer marijuana offenders assembled at the Life for Pot website.  Prez Trump seems to like the adulation he received after his clemency grant to Alice Marie Johnson two years ago, and I am suggesting he might really get some political juice if he granted clemency to a number of older marijuana offenders.  (Notably, a number of voters in a number of swing states like Arizona and Florida and Michigan seemingly care a lot about marijuana issues.)

I fear that Prez Trump is unlikely to improve his clemency record anytime soon.  But that will not keep me from using this setting to urge him to see the value in trying to do so.

Prior related posts:

July 22, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

"How To Assess Whether Your District Attorney Is A Bona Fide Progressive Prosecutor"

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

This article serves as a surgeon general’s warning that not all progressive prosecutors are alike and provides a “weighted constellation” framework that advocates can use to assess which district attorneys deserve the progressive name. Although the justice system’s structural landmines inhibit district attorneys’ efforts to substitute law-and-order policies with more forward-thinking approaches, local prosecutors still wield enormous power; they can reduce incarceration and more equitably enforce the law.  Participants in local politics should elect and support district attorneys who effect authentically progressive policies.  Because not all seemingly progressive district attorneys are in fact pursuing meaningful criminal justice reform, this article aims to help advocates separate the bona fide progressives from those in sheep’s clothing. Those keen to assess their district attorney can use this article’s proposed analytical framework, which accounts for the totality of each district attorney’s circumstances but draws clear lines between progressive and non-progressive prosecution practices.

This article presents fourteen buckets of prosecutorial policies that further a more dignified and fair American justice system. Advocates should use these fourteen buckets to evaluate a district attorney and — depending on the history of the prosecutor’s office and the local justice system — assign weights to each of the metrics.  Advocates should then examine the district attorney’s performance for each metric, including whether the prosecutor falls outside the metric’s outer bounds, the distance between the prosecutor’s policies and the theoretically most progressive iteration of the metric, and the prosecutor’s policies compared with their peers’ policies.  To aid with the last analytical step, this article provides a comparative analysis of twenty-one prosecutors’ performance against a subset of seven of the metrics — the death penalty, bail reform, decarceration and the New Jim Crow, non-prosecution and diversion, wrongful convictions, police accountability, and prosecutorial accountability.

July 22, 2020 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

You be the federal judge: what sentence for Senator Rand Paul's attacker at resentencing after 30 days deemed unreasonable?

Regular readers know that, more than 15 years after Booker created the reasonableness standard of appellate review for federal sentencing, circuit courts still almost never find a sentence to be "substantively unreasonable" upon a defendant's appeal claiming the sentence was too high.  But last year, a Sixth Circuit panel decided, upon an appeal by the government, that a high-profile sentence was "substantively unreasonable" as too low.  The ruling in US v. Boucher, No. 18-5683 (6th Cir. Sept. 9, 2019) (available here), concerned the sentencing resulting from Senator Rand Paul's neighbor attacking him while he was was mowing his lawn in 2017.  Now, as this local article highlights, it is time for resentencing after the Sixth Circuit vacated Boucher’s sentence as substantively unreasonable:

Federal prosecutors have renewed a push for a 21-month sentence for the man who tackled and injured U.S. Sen. Rand Paul in November 2017.

Rene Boucher deserves to spend more time behind bars because of the serious injuries Paul sustained, including six broken ribs that left him in intense pain and led to bouts of pneumonia and damage that ultimately required removing part of Paul’s lung, Assistant U.S. Attorney Bradley P. Shepard said in a memorandum filed Monday.

Shepard also argued that the initial 30-day sentence against Boucher wasn’t enough to deter other potential assaults on members of Congress.  “‘Aggressive’ rhetoric directed at our elected leaders is at a dangerously high level,” Shepard wrote.  “Although this case is lacking in evidence of political motivation, it is still important, in this climate, to send a message to society as a whole that assaults and violence perpetrated against members of Congress will not be tolerated.”

Boucher’s attorney, however, has argued it would be unjust to send him back to prison after he’s already completed his initial sentence, and moved to dismiss the case.

U.S. District Judge Matthew F. Leitman scheduled a sentencing hearing for Boucher on July 27.  Lietman, a judge in Michigan, is sitting as a special judge in Boucher’s case.

Paul, a doctor elected to the Senate in 2010, and Boucher, also a physician, lived next door to each other in a gated community in Bowling Green.  In the summer of 2017, Boucher trimmed five maple trees that were on Paul’s property, but had limbs sticking over the property line onto Boucher’s side, according to a motion from Boucher’s attorney, Matthew J. Baker. In response, Paul piled up a large stack of limbs and brush near the property line in Boucher’s view, Baker said....

[On] Nov. 3, 2017, Boucher saw Paul mowing his yard. Paul blew leaves into Boucher’s lawn and then got off the mower, picked up some limbs and turned toward the place where Boucher had burned the debris the day before, Baker said. Boucher lost his temper, ran 60 yards and tackled Paul from behind....

Police first charged Boucher with misdemeanor assault in state court, but the federal government stepped in and prosecuted him under a law barring assaults on members of Congress.

Paul, a Republican, suggested in a letter to the court that there was a political motive behind the attack, saying that Boucher’s anger toward him “comingles with his hatred of my political policies.”  However, Boucher has said the attack was driven solely by his anger over the yard waste, and prosecutors have acknowledged there was no evidence of a political motivation.

Under advisory guidelines, Boucher faced a potential sentence from 21 to 27 months, though judges can impose sentences outside those guidelines.  U.S. District Judge Marianne O. Battani sentenced Boucher to 30 days in prison, a $10,000 fine and 100 hours of community service, noting Boucher’s military service, career as a doctor and his involvement in his church.

Prosecutors appealed the sentence, arguing it was unreasonably short.  The U.S. 6th Circuit Court of Appeals ordered a new sentencing hearing for Boucher, ruling last September that Battani didn’t give sufficient weight to the seriousness of Paul’s injuries or the need for deterrence, and didn’t sufficiently address the issue of the big difference in Boucher’s sentence and others involving federal assault cases.

In arguing for more time for Boucher, Shepard cited cases in which two people received as much jail time as he did only for throwing eggs at a member of Congress, and others in which people who attacked federal employees received much longer sentences.  The prosecutor also said that had Boucher’s case been handled in a Kentucky court, Paul’s injuries could have meant a charge of second-degree assault, punishable by five to 10 years in prison.

Baker, however, argued that Boucher’s initial sentence was legitimate and that putting him back in prison would amount to punishing him twice for the same crime....  Baker said it appears that the government is getting a do-over on Boucher’s sentencing because the victim is a U.S. senator.

Shepard, however, said it is not unusual for people to be re-sentenced after completing a sentence.  What Boucher wants, the prosecutor said, “is for those who have received exceptionally low sentences to get further special treatment in the form of a bar to resentencing.”

There are so many interesting elements to this resentencing, including the fact that there is a distinct new "outside judge" in charge of this resentencing.  I am inclined to predict Boucher will get a sentence somewhere between the 30 days originally imposed and the 21 months requested by the feds.  But I am eager to hear what readers think the new sentence should be. 

Prior related posts:

July 22, 2020 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (5)

July 21, 2020

"Open Risk Assessment"

The title of this post is the title of this recent paper authored by Brandon Garrett and Megan Stevenson. Here is its abstract:

As criminal justice actors increasingly seek to rely on more evidence-informed practices, including risk assessment instruments, they often lack adequate information about the evidence that informed the development of the practice or the tool.  Open science practices, including making scientific research and data accessible and public, have not typically been followed in the development of tools designed for law enforcement, judges, probation, and others.  This is in contrast to other government agencies, which often open their processes to public notice and comment.

Lack of transparency has become pressing in the area of risk assessment, as entire judicial systems have adopted some type of risk assessment scheme.  While the types of information used in a risk tool may be made public, often the underlying methods, validation data, and studies are not.  Nor are the assumptions behind how a level of risk gets categorized as “high” or “low.”  We discuss why those concerns are relevant and important to the new risk assessment tool now being used in federal prisons, as part of the First Step Act.  We conclude that a number of key assumptions and policy choices made in the design of that tool are not verifiable or are inadequately supported, including the choice of risk thresholds and the validation data itself.  Unfortunately, as a result, the federal risk assessment effort has not been the hoped-for model for open risk assessment.

July 21, 2020 in Data on sentencing, Detailed sentencing data, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

How many federal death row prisoners does Attorney General William Barr want to see executed in 2020?

The question in the title of this post has been in my head in the wake of last week's three federal executions and the clear signal sent by five members of the Supreme Court that they will not allow lower courts to get in the way of the Attorney General's execution plans.  As highlighted in posts last week here and here, the Supreme Court by 5-4 votes vacated a series of lower court stays and injunctions to enable the Justice Department to complete the scheduled executions of Daniel Lewis Lee and Wesley Ira Purkey.  By the end of the week, the pro-execution momentum was so strong that the third person executed, Dustin Lee Honken, apparently did not even pursue any final legal claims up to the Supreme Court.

Recall that it was only a month ago that AG Barr ordered the scheduling of these execution dates for last week (as well as one more set for August 28 for Keith Dwayne Nelson).  This reality suggests to me that AG Barr could, at just about any time for just about any reason, order the scheduling of one or many executions and have them carried our within a month's time.  There are 59 condemned persons on federal death row (full list here via DPIC), and I suspect at least a couple dozen of these death row defendants have exhausted the standard appellate and post-conviction remedies so that no legal impediments would currently prevent their executions.  Consequently, it would seem their fates now lie squarely and only in the hands of AG Barr and will turn on how he now decides to exercise his discretion in the setting of execution dates.

In DOJ statements concerning the setting of executions dates (here and here), AG Barr has repeatedly stated that "we owe it to the victims and their families to carry forward the sentence imposed by our justice system."  If AG Barr really believes this, will he be actively trying to set more execution dates (perhaps many more) in the weeks and months ahead?  Notably, former Vice President Joe Biden is campaigning for Prez on a promise to "Eliminate the death penalty": "Because we cannot ensure we get death penalty cases right every time, Biden will work to pass legislation to eliminate the death penalty at the federal level, and incentivize states to follow the federal government’s example."  If AG Barr really believes that justice calls for executing those now currently on federal death row, should he be seeking to complete as many executions as possible in 2020 just in case a new administration might not want to carry out these sentences in 2021? 

Recent prior related posts:

July 21, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Some notable federal prison comings and goings for high-profile political figures

A (re)sentencing yesterday of a high-profile New York state politician led me to notice a few more stories concerning the ins and outs of federal prison for some notable political figures. Here are headlines, links and a taste of the stories:

Via the New York Post, "Sheldon Silver sentenced to more than 6 years in prison for bribery scheme":

Crooked Albany power broker Sheldon Silver will finally go to prison for his crimes — but not for another month, a judge ruled Monday as she sentenced the former Assembly speaker to 6 1/2 years in federal prison, nearly five years after he was first convicted of corruption.  Judge Valerie Caproni handed down the sentence Monday afternoon in front of Silver, 76, who was ordered to appear in person in the courtroom despite an effort by his lawyers to hold the hearing remotely amid the coronavirus pandemic. “This was corruption pure and simple,” Judge Caproni told the disgraced ex-speaker of the New York state Assembly, whom she had already sentenced twice. “The time, however, has now come for Mr. Silver to pay the piper,” she said before delivering the 78-month sentence and a $1 million fine, which the ruined kingmaker received with a blank expression.

Via the Philadelphia Inquirer, "Former Philly U.S. Rep. Chaka Fattah came home early from prison. Federal officials won’t say why.":

The U.S. Bureau of Prisons has accomplished what former U.S. Rep. Chaka Fattah could not in two appeals.  It sprang the disgraced pol early from lockup. A bureau spokesperson confirms that Fattah, a Philadelphia Democrat sentenced in 2016 to 10 years on corruption charges, returned to the city June 8 from a federal prison near Scranton and will serve the rest of his sentence either in a halfway house or under house arrest. But the bureau refused to say why the former congressman had been released more than five years before the scheduled 2025 date.

Via NBC News, "ACLU, law firm sue to get Michael Cohen released, saying he was sent back to prison over book":

The American Civil Liberties Union and a law firm on Monday filed a legal challenge to the recent imprisonment of Michael Cohen, President Donald Trump's former personal attorney.  The groups argue that Cohen was sent back to prison this month after being released on home confinement in retaliation for his plans to release a negative book about Trump before the November election.  "He is being held in retaliation for his protected speech, including drafting a book manuscript that is critical of the President — and recently making public his intention to publish that book soon, shortly before the upcoming election," lawyers on behalf of Cohen wrote in Monday's lawsuit.

July 21, 2020 in Celebrity sentencings, White-collar sentencing | Permalink | Comments (0)

July 20, 2020

"Crime Has Declined Overall During The Pandemic, But Shootings And Killings Are Up"

The title of this post is the headline of this new NPR piece, and here are excerpts:

Across the country, we've seen massive change brought on by the coronavirus pandemic, including a dramatic drop in the overall crime rate. David Abrams, a University of Pennsylvania law and economics professor, has been keeping an eye on numbers across the country. The website he created details what's been happening with crime in more than 25 major cities during the COVID-19 crisis. "People have reacted to the pandemic in all sorts of ways in decreasing economic activity," Abrams says. "They stopped going to work, they stopped driving their car. They stopped walking around the city, and crime also stopped."

Baltimore, Philadelphia, San Francisco, Washington, D.C., and Chicago all have witnessed a drop of more than 30%. Violent crimes such as aggravated assaults and robberies also fell substantially. That wasn't true of homicides and shootings though. In some cities, there's a troubling rise compared with last year.

Shauntavius Sims, 35, lives in a Chicago neighborhood that has been plagued by gun violence. That reality makes the news of an overall drop in the crime rate irrelevant. "Seem like it got worser to me. Just yesterday, I saw it behind my house," Sims says, as the sounds of firecrackers — not guns — filled the air. "Some boys just came and shot while me and my baby was in the back. Like every day, it's constantly on the news. Every day, it's something."

There has been a surge of homicides over recent violent weekends, and several children have been shooting victims. It's that type of tragic crime news in Chicago and other cities such as Houston, Cincinnati and Fresno, Calif., that's gotten the most attention.

Even though the numbers are tragic, Abrams says it's difficult to determine any trend in murder or other crimes over a short time span. He says for a more accurate statistical count it takes comparing what takes place from year to year over a longer period of time. "When you look at the homicide data and compare it to levels over the past five years," he says, "we didn't see any significant impact because of the pandemic."

Even so, University of Chicago professor Jens Ludwig, the head of the university's Crime Lab, says it's a big puzzle why shootings and murders haven't dropped while other crimes have. "Murders make up far less than 1% of the crimes in these cities," Ludwig says, "but murder is so damaging to families and communities, and I don't think we have a great understanding of why they haven't declined."...

There's more positive news when it comes to drug crimes. They plummeted by more than 60% compared with previous years, according to Abrams' website. Arizona State University criminologist Ojmarrh Mitchell says there are several reasons why. "First, drug crimes are measured by arrests, not citizen reports to police," Mitchell says. "During a pandemic, police aren't necessarily employing the pro-active police tactics and practices that typically result in discovering drugs."

The pandemic seems to be driving a lot of the reduction in crime, including home burglaries. But in commercial spaces, there's been a bump in burglaries, up by almost 30% on average across the cities examined.

Abrams says there was also a dramatic jump in car theft in Philadelphia, with increases as well in Denver, Los Angeles and Austin, Texas. Baltimore was the only city that saw a substantial decline. "So if people are leaving cars on the street, they have no need to use them," he says. "They aren't checking on them as frequently. There's also just less foot traffic around and fewer people to observe. I think that makes for more attractive targets for would-be thieves."

Prior related posts:

July 20, 2020 in Impact of the coronavirus on criminal justice, National and State Crime Data | Permalink | Comments (0)

"Forgotten by the Fair Sentencing Act and the First Step Act: Federal Methamphetamine Sentencing Reform"

The title of this post is the title of this new paper recently posted on SSRN and authored by Quincy Ferrill.  Here is its abstract:

This paper explores the issue of sentencing guidelines based on outdated premises and unfair treatment and the potential impacts of drug sentencing laws and enhancements not based on empirical data.  To address this problem, this paper proposes a bill, similar to the First Step Act, to both retroactively and prospectively lessen the effect of these capricious drug sentencing guidelines.

July 20, 2020 in Drug Offense Sentencing, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (2)

July 19, 2020

Back by popular demand, another VERY long list of federal sentence reductions using § 3582(c)(1)(A)

It has now been a full two wees since I set out this holiday weekend listing of new grants of federal sentence reductions using § 3582(c)(1)(A).  The delay in producing a new list is not because of a lack of grants.  In fact, the updated numbers on this BOP page on the FIRST STEP Act suggests that roughly 70 sentence reductions are being granted by federal district courts each week: BOP reported 706 grants of "Compassionate Releases / Reduction in Sentences" three weeks ago, then reported 774 total grants as of two weeks ago, and it now reports 916 total grants. 

Only a portion of these sentence reduction grants end up on Westlaw, but I have heard from a number of readers that my listings are still appreciated.  So, without further ado, I am pleased to highlight dozens and dozens of additional recent grants here.  Because it has been two weeks since my last list, this one will be quite lengthy:

United States v. Grant, No. 16-30021-001, 2020 WL 4036382 (CD Ill. July 17, 2020)

United States v. Burton, No. 18-cr-00094-JSW-1, 2020 WL 4035067 (ND Cal. July 17, 2020)

United States v. Hendry, No. 2:19-cr-14035-ROSENBERG, 2020 WL 4015487 (SD Fla. July 16, 2020)

United States v. Watkins, No. 15-20333, 2020 WL 4016097  (ED Mich. July 16, 2020) 

United States v. Mabry, No. 14 CR 116-1, 2020 WL 4015315 (ND Ill. July 16, 2020)

 

United States v. Kirschner, No. 1:10-cr-00203-JPH-MJD, 2020 WL 4004059 (SD Ind. July 15, 2020)

United States v. Burt, No. 90-80492, 2020 WL 4001906 (ED Mich. July 15, 2020)

United States v. Calimer, No. DKC 02-0177, 2020 WL 4003288 (D Md. July 15, 2020)

United States v. Arceo, No. 5:09-cr-00616-EJD-1, 2020 WL 4001339 (ND Cal. July 15, 2020)

United States v. England, No.CR 18-61-GF-BMM, 2020 WL 4004477 (D Mont. July 15, 2020)

 

United States v. Mines, No. 4:18-cr-00552, 2020 WL 4003048 (ND Oh. July 15, 2020)

United States v. Edwards, No. 5:15-cr-00339, 2020 WL 4003050 (ND Oh. July 15, 2020)

United States v. Fluellen, No. 1:15-cr-00435, 2020 WL 4003039 (ND Oh. July 15, 2020)

United States v. Neal, No. 5:15-cr-00339, 2020 WL 4003049 (ND Oh. July 15, 2020)

United States v. Berry, No. 09-CR-90-JPS, 2020 WL 4001932 (ED Wisc. July 15, 2020)

 

United States v. Hayes, No. 17-20292, 2020 WL 4001903 (ED Mich. July 15, 2020)

United States v. Anello, No. 2:12-cr-00131-RAJ, 2020 WL 3971399 (WD Wash. July 14, 2020)

United States v. Torres, No. 19-cr-20342-BLOOM, 2020 WL 4019038 (SD Fla. July 14, 2020)

United States v. Collins, No. 15-10188-EFM, 2020 WL 3971391 (D Kan. July 14, 2020)

United States v. Evans, No. 18-cr-00308-WHO-1, 2020 WL 3971620 (ND Cal. July 14, 2020)

 

United States v. Mitchell, No. 4:13-cr-20468, 2020 WL 3972656 (ED Mich. July 14, 2020)

United States v. Pompey, No. CR 97-0638 RB, 2020 WL 3972735 (D N.M. July 14, 2020)

United States v. Amaro, No. 16 Cr. 848 (KPF), 2020 WL 3975486 (SDNY July 14, 2020)

United States v. Furlow, No. 2:06-CR-20020-01, 2020 WL 3967719 (WD La. July 13, 2020)

United States v. Fletcher, No. TDC-05-0179-01, 2020 WL 3972142 (D Md. July 13, 2020)

 

United States v. Fortson, No. 1:18-cr-00063-TWP-MJD, 2020 WL 3963729 (SD Ind. July 13, 2020)

United States v. Osborne, No. 1:07CR00019-002, 2020 WL 3958500 (WD Va. July 13, 2020)

United States v. Reed, No. 09-160 (PAM), 2020 WL 3960251 (D Minn. July 13, 2020)

United States v. Barajas, No. 18-CR-736-04 (NSR), 2020 WL 3976991 (SDNY July 13, 2020)

United States v. White, No. CCB-09-369, 2020 WL 3960830 (D Md. July 10, 2020)

 

United States v. Leal, No. 12-20021-05-KHV, 2020 WL 3892976 (D Kan. July 10, 2020)

United States v. Van Praagh, No. 1:14-cr-00189-PAC-1, 2020 WL 3892502 (SDNY July 10, 2020)

United States v. Hernandez, No. 10-CR-1288-LTS, 2020 WL 3893513 (SDNY July 10, 2020)

United States v. Collins, No. 10-cr-00963-1, 2020 WL 3892985 (ND Ill. July 10, 2020)

United States v. Smith, No. 04-CR-2002-CJW-MAR, 2020 WL 3913482 (ND Iowa July 10, 2020)

 

United States v. Paz, No. 92-172, 2020 WL 3958481 (D N.J. July 10, 2020)

United States v. Spencer, No. 04 Cr. 1156 (PAE), 2020 WL 3893610 (SDNY July 10, 2020)

United States v. Jones, No. 13-cr-577-2, 2020 WL 3892960 (ED Pa. July 9, 2020)

United States v. Croft, No. 95-496-1, 2020 WL 3871313 (ED Pa. July 9, 2020)

United States v. Gonzalez Quiroz, No. 18-CR-4517 (DMS), 2020 WL 3868751 (SD Cal. July 9, 2020)

 

United States v. Crawford, No. 2:18-cr-00075-3, 2020 WL 3869480 (SD Oh. July 8, 2020)

United States v. Davis, No. 3:10-cr-99 (SRU), 2020 WL 3843682 (D Conn. July 8, 2020)

United States v. Grubbs, No. CR16-228 TSZ, 2020 WL 3839619 (WD Wash. July 8, 2020)

United States v. Devine, No. 3:17cr228 (JBA), 2020 WL 3843716 (D Conn. July 8, 2020)

United States v. Gutierrez, No. 98-279(8) (JRT/AJB), 2020 WL 3839831 (D Minn. July 8, 2020)

 

United States v. Steffey, No. 2:12-cr-0083-APG-GWF, 2020 WL 3840558 (D Nev. July 8, 2020)

United States v. Jelinek, No. 15-20312, 2020 WL 3833125 (ED Mich. July 8, 2020)

United States v. Barnes, No. 3:13-CR-117-TAV-HBG-1, 2020 WL 3791972 (ED Tenn. July 7, 2020)

United States v. Erickson, No. 18-245(3) (DWF/HB), 2020 WL 3802823 (D Minn. July 7, 2020)

United States v. McRae, No. PJM 10-0127, 2020 WL 3791983 (D Md. July 7, 2020)

 

United States v. Mueller, No. 2:08-cr-00139-AB-1, 2020 WL 3791548 (ED Pa. July 7, 2020)

United States v. Bradley, No. 2:14-CR-00293-KJM, 2020 WL 3802794 (ED Cal. July 7, 2020)

United States v. Reyes-De La Rosa, No. 5:18-CR-55, 2020 WL 3799523 (SD Tex. July 7, 2020)

United States v. Mishler, No. 19-cr-00105-RS-2, 2020 WL 3791590 (ND Cal. July 7, 2020)

United States v. Tate, No. 17-cr-30037, 2020 WL 3791467 (CD Ill. July 7, 2020)

 

United States v. Ramsey, No. 18-CR-163, 2020 WL 3798938 (ED Wisc. July 7, 2020)

United States v. Hayes, No. 09 CR 1032, 2020 WL 3790615 (ND Ill. July 7, 2020)

United States v. Adeyemi, No. 06-124, 2020 WL 3642478 (ED Pa. July 6, 2020)

United States v. Adams, No. 3:04-CR-30029-NJR, 2020 WL 3639903 (SD Ill. July 6, 2020)

United States v. Bennett, No. 15-260(10) (PAM/TNL), 2020 WL 3638696 (D Minn. July 6, 2020)

 

Some of many prior recent related posts on CR grants:

July 19, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered | Permalink | Comments (1)

Perspectives from A to Z on how to reform incarceration nation

Though there is still plenty more to say about how the coronavirus is continuing to course through our nation's jails and prisons, I was pleased to see this week a number of new commentaries discussing prison and criminal justice reform more generally.  Notably, this round-up of pieces include works from sources that start with A and that start with Z, so here is a collection of pieces that all seem worth a midsummer read from A to Z:

From America: The Jesuit Review, "Religious ideals shaped the broken U.S. prison system. Can they also fix it?"

From Fast Company, "Here’s How We Get to a World Where We Don’t Need Prisons at All"

From The Morning Call, "We need justice system that values people"

From Salon, "Abolishing the whole prison-industrial complex"

From the Washington Times, "Keeping families together must be a priority for the criminal justice system"

From ZDNet, "Can technologists help end mass incarceration?: Data-driven approaches to criminal justice often backfire. Here's one way to do it right."

July 19, 2020 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

"American Roulette: The Social Logic of Death Penalty Sentencing Trials"

9780520344396The title of this post is the title of this recently published book authored by Sarah Beth Kaufman which now seem especially timely in light of the federal government's return to operating its machinery of death.  Here is the book description on the website of the publisher, University of California Press:

As the death penalty clings to life in many states and dies off in others, this first-of-its-kind ethnography takes readers inside capital trials across the United States.  Sarah Beth Kaufman draws on years of ethnographic and documentary research, including hundreds of hours of courtroom observation in seven states, interviews with participants, and analyses of newspaper coverage to reveal how the American justice system decides who deserves the most extreme punishment.  The “super due process” accorded capital sentencing by the United States Supreme Court is the system’s best attempt at individuated sentencing.  Resources not seen in most other parts of the criminal justice system, such as jurors and psychological experts, are required in capital trials, yet even these cannot create the conditions of morality or justice.  Kaufman demonstrates that capital trials ultimately depend on performance and politics, resulting in the enactment of deep biases and utter capriciousness.  American Roulette contends that the liberal, democratic ideals of criminal punishment cannot be enacted in the current criminal justice system, even under the most controlled circumstances.

The 15-page introduction to the text is available here, and here is an excerpt:

It would be sensible to assume that those who face capital punishment have committed the most atrocious murders and that their executions might serve as the strongest deterrent to others.  But these are not the criteria that determine who is “death-worthy” in the United States; ... Zacarias Moussaoui, who conspired to plan the 9/11 attacks, and Gary Ridgway, who was convicted of killing forty-nine women, for example, were both sentenced to life imprisonment.  Corinio Pruitt and Corey Wimbley each committed single robbery-murders and were sentenced to death by execution.  In the twenty-first century United States, between 14,000 and 17,000 homicides are committed each year, yet fewer than a hundred result in a sentence of death.  Those so chosen, according to prosecutors, judges, and legislators, are meant to be the “worst of the worst.”  During the past two decades, death sentencing has steadily decreased from its peak of 315 cases in 1996 to fewer than 50 in 2018....  This is a meaningful trend, but the capital punishment system continues to provide fodder for politicians touting “tough on crime” positions, feeding the myth that the capital punishment system identifies and punishes those most evil in American society.  Whether for or against the death penalty, few people are satisfied with the current system....

I came to think of the trials I witnessed as games of Russian roulette, unnecessary sport where someone would inevitably die, and that I had no power to stop.  Criminal defendants arrive at capital trials through a series of structuring logics ordained by racial classification and state power.  In part I, I take readers through the first major structuring logic: the construction of capital homicide.  From a vast backdrop of millions of human deaths a year, courts, legislatures, police forces, and prosecutors define some deaths as homicide — the result of malicious human intent — before settling on those worthy of being considered capital.  What I refer to as the “narrowing structure” of the capital punishment field is not unproblematic.  The cultural and legal norms that determine who eventually is tried by a capital jury follow confusing and often contradictory logics....  Importantly, the stages of capital narrowing are unknown to most of the parties involved.  Though I worked in capital sentencing for years, I had little idea about the mechanisms determining who was tried capitally.  Capital jurors, I will argue, are likewise and necessarily uninformed.  When they agree to participate in the capital sentencing process, they are assured that they are the last in a series of people who systematically ensure that those tried for capital murder are the worst society has to offer.

July 19, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)