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August 1, 2020

Noticing problems with crack sentence reduction retroactivity, especially when certain judges are discretionarily disinclined

The New York Times has this effective new article highlighting the ugly underbelly of the FRIST STEP Act's efforts to make sure the Fair Sentencing Act's reduction of crack sentences was fully retroactive.  The headline and subheadline of the piece serves as a summary: "Law to Reduce Crack Cocaine Sentences Leaves Some Imprisoned: Critics say the First Step Act is being applied too arbitrarily by judges who are taking a hard line when it comes to revisiting nonviolent drug sentences."  Here are excerpts from a piece worth reading in full:

By and large, the First Step Act has met its goal of reducing federal sentences for nonviolent drug offenders, addressing a longstanding disparity in which crack cocaine convictions in particular led to far harsher penalties than other drug offenses and disproportionately increased imprisonment of Black men.

Thousands of inmates across the country, predominantly people of color, have been released or resentenced under a provision of the new law that allowed changes to the sentencing provisions to be applied retroactively.  As of January, 2,387 inmates had their sentences reduced under the provision that allows some crack cocaine offenders to be resentenced, out of 2,660 that the United States Sentencing Commission estimated in May 2018 were eligible.

But the law gives judges discretion in reducing sentences, leaving some inmates like Mr. Maxwell without much recourse when their applications are rejected. In those cases, activists and defense lawyers worry that the First Step Act gives too much authority to judges to determine who does and does not deserve early release.  “It’s like the luck of the draw,” said Sarah Ryan, a professor at Wesleyan University who has analyzed hundreds of First Step Act resentencing cases.  “You’ve got people sitting in prison during a pandemic, and it’s not supposed to come down to who your judge is.  It’s supposed to come down to the law.”

The simple enactment of the bill was no guarantee for inmates.  This provision of the bill did not mandate that the judges must resentence eligible offenders; Congress specified that “nothing in this section shall be construed to require a court to reduce any sentence.”...

The section of the act that governs resentencing for crack cocaine convictions is just four sentences long.  It made retroactive the 2010 Fair Sentencing Act, which reduced sentencing disparities between crack and powder cocaine.  Courts have been relatively slow to determine some of the ambiguities of the act, including whether to consider behavior behind bars or other concurrent charges as factors in the decision.

Many public defenders — who handle most of these applications — in the toughest districts declined to speak on the record for fear of upsetting the judges who oversee their cases. Parks Small, a federal public defender in Columbia, S.C., said an imperfect First Step Act was still better than nothing, calling the bill a “godsend” for many inmates.  He added that judges varied as to the importance they placed on the original offense or the inmate’s behavior behind bars.  “You give it to different judges, they’re going to come up with different opinions,” Mr. Small said.  “It’s frustrating.”

August 1, 2020 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Terrific (though necessarily incomplete) list of great books on American prisons

New York magazine has this great new piece headlined "The Best Books on the American Prison System, According to Experts."  For many reasons, I would be inclined to call this list a "great books" list rather than a "best books" list; there are many awesome texts in this genre not making the list.  For example, I adore The Oxford History of the Prison: The Practice of Punishment in Western Society, though perhaps it did not make the list because it is an edited collection.  And The Decline of the Rehabilitative Ideal: Penal Policy and Social Purpose by Frances Allen was extremely important when authored three decades ago and is arguably even more timely now amidst our persistent and ever-evolving era of mass incarceration.  I am showing my age by flagging these older books, but there are also many more recent texts about that I also think of as "modern classics" in this arena.

These quibbles aside, I am pleased to see New York magazine highlighting more than a dozen terrific books in this article.  Here is some of the text previewing the list that follows:

Along with calling for an end to police brutality, recent protests following the murder of George Floyd have brought attention to another national crisis that disproportionately affects people of color: mass incarceration.  According to the Prison Policy Initiative, 2.3 million people (or 20 percent of the world’s prison population) are incarcerated in the United States, and while Black people make up only 13 percent of the U.S. population, 40 percent of prisoners are Black.  Millions more are on probation or parole, facing restrictions on housing, employment, and, in many states, the right to vote.

Like police violence against people of color, this isn’t a new issue.  Activists and scholars like Angela Davis and Ruth Wilson Gilmore have been arguing for the abolition of prisons for decades. But if you want to further educate yourself, we asked 11 scholars, lawyers, and activists what books they recommend for those seeking a deeper understanding.

Since mass incarceration is entangled with issues of race, gender, sexuality, and economics, we sought out experts with diverse perspectives on the topic who could recommend books addressing the prison system from all angles.  Our panel includes Jeffrey Adler, professor and author of Murder in New Orleans: The Creation of Jim Crow Policing; Paul Butler, law professor and author of Chokehold: Policing Black Men; Robert Chase, professor and author of We Are Not Slaves: State Violence, Coerced Labor, and Prisoners’ Rights in Postwar America; David C. Fathi, director of the ACLU National Prison Project; author and professor Shaun L. Gabbidon, Kali Nicole Gross, professor and co-author of A Black Women’s History of the United States; Sarah Haley, professor and author of No Mercy Here: Gender, Punishment, and the Making of Jim Crow Modernity; Elizabeth Hinton, professor and author of From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America; Jen Manion, professor and author of Liberty’s Prisoners: Carceral Culture in Early America; law professor Jocelyn Simonson; and Caleb Smith, professor and author of The Oracle and the Curse: A Poetics of Justice from the Revolution to the Civil War.

As in all our reading lists, the 14 books below come recommended by at least two of our experts. These titles cover the origins of our prison system, those who have been affected by incarceration, and the growing resistance movement. While we’ve separated the books into categories, it’s important to keep in mind that there are intersections and overlaps between topics. For example, a book about the history of prison in America is inevitably a book about race, while a book about race and prison will include discussions of resistance movements.

August 1, 2020 in Prisons and prisoners, Recommended reading | Permalink | Comments (0)

July 31, 2020

First Circuit panel reverses death sentence of Boston Marathon bomber Dzhokhar Tsarnaev

Roughly five years after a jury handed down a death sentence to the Boston Marathon bomber Dzhokhar Tsarnaev back in May 2015, today a First Circuit panel reversed the sentence while affirming his convictions.  This local NPR piece provides the basics and some context:

A federal appeals court has overturned the death sentence of admitted Boston Marathon bomber Dzhokhar Tsarnaev, saying the trial judge didn't do enough to ensure an unbiased jury.

The First Circuit Court of Appeals Friday ordered a new penalty phase of the trial, where a new set of jurors would decide whether to sentence Tsarnaev to life or death.  "A core promise of our criminal-justice system is that even the very worst among us deserves to be fairly tried and lawfully punished," Judge O. Rogeriee Thompson wrote in her 182-page opinion.

The federal appeals court said that Judge George O'Toole didn't do enough to make sure jurors were not tainted by pretrial publicity.... "But as to 9 of the 12 seated jurors, the judge fell short on this front," Thompson wrote. "The judge qualified jurors who had already formed an opinion that Dzhokhar was guilty — and he did so in large part because they answered 'yes' to the question whether they could decide this high-profile case based on the evidence."

But by not having the jurors identify exactly what they already knew about the case, the judge couldn’t determine whether they were actually fit to serve. The First Circuit Court of appeals issued its decision Friday, after hearing arguments in the case in December 2019.

Tsarnaev and his older brother Tamerlan killed three and injured more than 260 people near the finish line of the marathon in 2013, then murdered a police officer several days later. Tamerlan was killed during the manhunt for the brothers. In 2015, a jury convicted Dzhokhar Tsarnaev of all 30 counts against him, and then handed down six death sentences.

Liz Norden, whose two sons J.P. and Paul each lost their right leg in the bombing, supported the death penalty for Tsarnaev. In an interview with WBUR Friday, she said the appeals court decision made her “sick to her stomach.” She said she’s sad at the prospect of a new penalty phase of the trial, but having sat through the first trial, is willing to do it again....

Bombing survivor Michelle L’Heureux said she was "sad and frustrated" by the decision. "We had closure. And now that’s gone," she said. "This is going to take a toll on so many of the survivors and the families of those who never made it home. I, fortunately, through my own recovery, have gained strength and have found ways to cope with the trauma of what I and so many suffered on that fateful day in April 2013. This is a step back for many. And that is a disgrace."

The family of Martin Richard, the youngest victim of the bombing at 8 years old, declined to comment. But they pointed to a letter they wrote in 2015, just after Tsarnaev was convicted but before he was sentenced. "To end the anguish, drop the death penalty," they wrote.

Instead of another sentencing phase, prosecutors and defense attorneys could agree to life in prison for Tsarnaev, avoiding another high-profile, weeks-long session in front of a new jury. Tsarnaev's attorneys admitted his guilt at the start of the trial in 2015, and sought a plea deal before going to trial....

Among the factors at play in what happens next is a new U.S. Attorney, Andrew Lelling, who replaced Carmen Ortiz, the U.S. Attorney who oversaw the Tsarnaev trial. Lelling on Friday said his office was reviewing the decision. Tsarnaev's federal public defenders said in a statement they were grateful for the court's straightforward and fair decision....

Tsarnaev is now 27 and remains at the federal supermax prison in Florence, Colorado. Thompson noted twice in her decision that the court's ruling does not mean Tsarnaev will ever be released from prison. "Make no mistake: Dzhokhar will spend his remaining days locked up in prison, with the only matter remaining being whether he will die by execution," she wrote. With another trial, however, he will be back in a Massachusetts courtroom.

The full opinion in this case is available at this link, and I welcome help from readers to identify the good, the bad and the ugly of this notable and very lengthy ruling.  I am especially interested in speculation about whether the feds will seek review with the full First Circuit or SCOTUS.  If they do, it could be years before we even know if there will be a need for a retrial.

July 31, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)

Big new ACLU and HRW report details "How Probation and Parole Feed Mass Incarceration in the United States"

The quoted portion of the title of this post is part of the title of this huge new report by Human Rights Watch and the American Civil Liberties Union fully titled "Revoked: How Probation and Parole Feed Mass Incarceration in the United States." This important 200+ page report includes these passages in its "summary":

Probation, parole, and other forms of supervision are marketed as alternatives to incarceration in the United States. Supervision, it is claimed, will keep people out of prison and help them get back on their feet.

Throughout the past 50 years, the use of probation (a sentence often imposed just after conviction) and parole (served after incarceration) has soared alongside jail and prison populations. As of 2016, the last year for which supervision data is available, 2.2 million people were incarcerated in United States jails and prisons, but more than twice as many, 4.5 million people — or one in every 55 — were under supervision.  Supervision rates vary vastly by state, from one in every 168 people in New Hampshire, to one in every 18 in Georgia.

Over the past several decades,arbitrary and overly harsh supervision regimes have led people back into US jails and prisons — feeding mass incarceration.  According to the Bureau of Justice Statistics (BJS), in the late 1970s, 16 percent of US state and federal prison admissions stemmed from violations of parole and some types of probation.  This number climbed to a high of 36 percent in 2008, and, in 2018, the last year for which data is available, was 28 percent.  A different set of data for the previous year from the Council of State Governments, which includes all types of probation violations — but is limited to state prison populations — shows that 45 percent of all US state prison admissions stemmed from probation and parole violations.  These figures do not include people locked up for supervision violations in jails, for which there is little nationwide data.  Black and brown people are both disproportionately subjected to supervision and incarcerated for violations.

This report documents how and why supervision winds up landing many people in jail and prison — feeding mass incarceration rather than curtailing it.  The extent of the problem varies among states, and in recent years multiple jurisdictions have enacted reforms to limit incarceration for supervision violations.  This report focuses on three states where our initial research indicated that — despite some reforms — the issue remains particularly acute: Georgia, Pennsylvania, and Wisconsin.

Drawing on data provided by or obtained from these states, presented here for the first time, and interviews with 164 people incarcerated for supervision violations, family members, government officials, practitioners, advocates, and experts, we document the tripwires in these states leading to incarceration.  These include burdensome conditions imposed without providing resources; violations for minor slip-ups; lengthy incarceration while alleged violations are adjudicated; flawed procedures; and disproportionately harsh sentences for violations.  The report shows that, nationwide,most people locked up for supervision violations were not convicted of new offenses — rather, they were incarcerated for breaking the rules of their supervision, such as for using drugs or alcohol, failing to report address changes, or not following the rules of supervision-mandated programs.  Of those who were incarcerated for new offenses, in our focus states, many were for conduct like possessing drugs; public order offenses such as disorderly conduct or resisting arrest; misdemeanor assaultive conduct; or shoplifting....

The root causes of these violations, the report documents, are often a lack of resources and services, unmet health needs, and racial bias.The report also draws attention to marked racial disparities in who is subjected to supervision and how authorities enforce it. In practice, supervision in many parts of the US has become a system to control and warehouse people who are struggling with an array of economic and health-related challenges, without offering meaningful solutions to those underlying problems.

July 31, 2020 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

"The Prisoner and the Polity"

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

All punishment comes to an end.  Most periods of imprisonment are term limited, and ninety-five percent of prisoners will eventually leave prison.  Though it is tempting to think of the “end” in concrete, factual terms — for example, as the moment when the prisoner is released — this concept also has normative dimensions.  Core to the notion of term-limited imprisonment is the “principle of return”: the idea that, when the prisoner has completed his or her time, that person is entitled to return to society.  Yet, for the principle of return to be meaningful, it must include the idea of a fair chance of reestablishing oneself in the community.  The “practices of incarceration” — including the prison environment and prison programs — are thus critically important because they can either facilitate or impede a prisoner’s reentry into society.  However, apart from the question of whether conditions of confinement are cruel and unusual as defined by the Eighth Amendment, these practices of incarceration have largely avoided scholarly scrutiny.

This Article uses the case study of higher education programs in prison to expose the interdependence between the practices of incarceration and the principle of return.  Drawing on original interviews with key stakeholders, it investigates how the features of higher education programs reflect and reinforce core beliefs about the goals of punishment and the state’s responsibility towards those it incarcerates.  The Article critically examines the dominant harm-prevention justification for prison higher education, and the desert-based objection to it, finding that both are inadequate for failing to take into account the principle of return.

This Article espouses an alternative approach that would recognize the ongoing relationship between prisoner and polity and devise incarceration practices accordingly.  Building on insights from communitarian theory, this approach, which foregrounds the prisoner’s status in the polity, uncovers pervasive “us-versus-them” narratives in the prison context. The first such narrative is between prisoners and those members of the polity who view prisoners, falsely, as having forfeited their claims to membership in civil society.  This view of prisoners, as members of a permanent and lower caste, is in direct conflict with the principle of return, which mandates that prisoners have at least a plausible hope of basic reintegration into society and that they avoid further harm — what might be termed “punishment-plus.”  The Article also scrutinizes a second, more localized “us-versus-them” narrative between prisoners and correctional officers, which arises from their similar backgrounds and the common deprivation experienced by members of both groups.

Finally, the Article recommends institutional design changes to mitigate “us-versus-them” dynamics: empowering stakeholders, for example, by affording correctional officers educational opportunities that would help professionalize their role and ease their resentment towards prisoners; and increasing exposure and empathy between incarcerated and non-incarcerated populations, such as by piloting a program that would employ recent college graduates to teach in prison.  These and other proposed reforms would refocus the conversation around imprisonment to account for the central role of incarceration practices in revitalizing the principle of return, as well as the inextricable connection between prisoner and polity.

July 31, 2020 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (1)

July 30, 2020

US Department of Justice sets another execution date for last week of August

In this recent post I wondered aloud "How many federal death row prisoners does Attorney General William Barr want to see executed in 2020?".  My main point in that post was that, after the completion of three federal executions earlier this month thanks to SCOTUS lifting lower court stays, it would now seem that AG Barr is likely to be able to complete how ever many executions he decides to set.

Yesterday, via this press release, we learned that AG Barr wants to see at least one more execution in 2020.  This release, titled  "Execution Rescheduled for Federal Inmate Convicted of Brutally Murdering a Grandmother and her Nine-Year-Old Granddaughter" states:

Attorney General William P. Barr today directed the Federal Bureau of Prisons to reschedule the execution of Lezmond Mitchell, a federal death-row inmate who was convicted more than 17 years ago of the brutal murders of a grandmother and her nine-year-old granddaughter.  The execution, initially scheduled for last December, is now scheduled to occur on August 26, 2020, at the U.S. Penitentiary in Terre Haute, Indiana.

In October 2001, Mitchell murdered Alyce Slim, a 63-year-old grandmother, and her nine-year-old granddaughter as part of a carjacking in Arizona.  After getting a ride from Slim in her pickup truck, Mitchell and an accomplice stabbed her 33 times and threw her body into the backseat beside her granddaughter.  Mitchell then drove the truck 30-40 miles into the mountains, ordered the girl “to lay down and die,” slit her throat twice, and crushed her head with rocks. Mitchell and his accomplice proceeded to sever the heads and hands of the victims’ bodies and burn their clothes. Mitchell later confessed to the murders.  In May 2003, a jury in the U.S. District Court for the District of Arizona found him guilty of numerous federal crimes — including first-degree murder, felony murder, and carjacking resulting in death — and he was sentenced to death.  His convictions and sentence were affirmed on appeal, and his claims for collateral relief were denied by every court that considered them.

Mitchell’s execution was initially scheduled for December 2019, but the U.S. Court of Appeals for the Ninth Circuit entered a stay of execution while it resolved an additional appeal by Mitchell.  The court of appeals unanimously rejected Mitchell’s claim in April 2020 and denied his request for full-court rehearing earlier this month. When the Ninth Circuit stay formally concludes, no legal impediments will bar the execution, and it can occur without further delay.

This Arizona Republic article provides more details on Mitchell's crime and notes that he is the only Native American on federal death row.

Recent prior related posts:

July 30, 2020 in Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Fascinating Oklahoma initiative seeking to block non-violent prior convictions from enhancing statutory range of punishment qualifies for ballot

The COVID pandemic has derailed various ballot initiatives in various jurisdictions, but I am very pleased to see this news about the success of one criminal justice reform effort in at least making it to the ballot in Oklahoma.  Here are the details and some background:

The Oklahoma Supreme Court ruled Wednesday that enough voter signatures were collected to put a question regarding sentence enhancements for nonviolent offenders on the ballot on November 3.

More than 248,000 Oklahomans signed an initiative petition to get State Question 805 on the ballot.

Sentence enhancements allow courts to widen the range of years they can sentence a person to prison if that person has been convicted of another felony in the past.  The state question will ask voters to take that power away from courts when they’re sentencing people who have never been convicted of a violent felony.

A recent analysis from the Oklahoma Council for Public Affairs suggests ending enhancements for nonviolent offenders could cut the state’s prison population more than eight percent in 10 years and save the state up to $186 million.

The Oklahoma Department of Corrections questions some of the study’s findings.

A 2017 report from a task force established by former Governor Mary Fallin found that sentence enhancements were a large contributor to Oklahoma’s disproportionately high prison population.

Because I am not an expert on Oklahoma's current politics around sentencing reforms, I do not have a keen sense of whether this initiative has a real chance of passage.  But I do sense this initiative could and should engender an important national conversation about often out-sized impact of (even minor) criminal history at sentencing.  And in light of this OCPA report stressing the fiscal savings of this reform, it will be quite interesting to see how debates over public safety and state spending play out in a very red state circa fall 2020.  The OCPA report has this summary and concluding thoughts providing its accounting of what State Question 805 might achieve:

Oklahoma criminal statutes typically provide a sentencing range for each offense. A separate law allows even longer sentences—sometimes including life in prison—for persons with prior felony convictions. People convicted of non-violent property and drug offenses are the most likely to receive enhanced penalties under this law and also receive the harshest sentence increases.

State Question 805 would limit this sentence enhancement to crimes that the legislature considers violent.  This should reduce Oklahoma’s prison population by 8.5% over the next 10 years. That would reduce state expenses between $45 million and $186 million, with expected savings of at least $142 million. Taxpayer savings of up to $27 million per year would continue indefinitely into the future.  These funds could be directed to substance abuse and mental health services, victim’s services, reentry programs, or other public safety priorities....

With all of these changes, however, SQ 805 would still only reduce Oklahoma to the fourth-most incarcerated state in the nation.  Rather than the radical reductions opponents claim, this is a common-sense, limited adjustment to drug and property sentence lengths that will make Oklahoma’s failing criminal justice system more efficient and more fair.

Prior related post:

July 30, 2020 in Offender Characteristics, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

Federal prison population, per BOP reporting, now down to 157,862

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.  This week's update suggests again that the federal prison population might be getting closer to flattening out as we see a decline that is considerably lower than in weeks past.  But the decline continues and remains significant.

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 the last week of July, we have hit another new historic low with the new BOP numbers at this webpage reporting "Total Federal Inmates" at 157,862.  But this represents a decline of "only" 543 persons from last week's total of 158,405, which had been a decline of only 433 persons from the previous week's reported total.  Put another way, it took two weeks in the second part of July to see the roughly 1000 person drop in the prison population that we were seeing each week in earlier months. 

I remain 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 hopeful that we will eventually get some sentencing data from the USSC that can help us better understand these prison data, but now five months into the pandemic the USSC still seems in no rush to provide any inkling of how the federal criminal sentencing process has been impacted. 

A few of many prior related posts:

July 30, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

July 29, 2020

"Will The Reckoning Over Racist Names Include These Prisons?"

The question in the title of this post is the headline of this interesting Marshall Project piece.  Here is a snippet:

While the killing of George Floyd has galvanized support for tearing down statues, renaming sports teams and otherwise removing markers of a (more) racist past, the renewed push for change hasn’t really touched the nation’s prison system. But some say it should. Across the country, dozens of prisons take their names from racists, Confederates, plantations, segregationists, and owners of slaves. “Symbols of hate encourage hate, so it has been time to remove the celebration of figures whose fame is predicated on the pain and torture of Black people,” said DeRay McKesson, a civil rights activist and podcast host.

Some candidates for new names might be prisons on former plantations. In Arkansas, the Cummins Unit—now home to the state’s death chamber—was once known as the Cummins plantation (though it’s not clear if the namesake owned slaves). In North Carolina, Caledonia Correctional Institution is on the site of Caledonia Plantation, so named as a nostalgic homage to the Roman word for Scotland....

James E. Ferguson — namesake of the notoriously violent Ferguson Unit [in Texas near Huntsville — was a governor in the 1910s who was also an anti-Semite and at one point told the Texas Rangers he would use his pardoning power if any of them were ever charged with murder for their bloody campaigns against Mexicans, according to Monica Muñoz Martinez, historian and author of “The Injustice Never Leaves You.” Ferguson got forced out of office early when he was indicted and then impeached. Afterward, he was replaced by William P. Hobby, a staunch segregationist who opposed labor rights and once defended the beating of an NAACP official visiting the state to discuss anti-lynching legislation. Hobby, too, has a prison named after him....

To many experts, the idea of changing prison names feels a bit like putting lipstick on a pig: No matter what you call it, a prison is still a prison. It still holds people who are not free. They are still disproportionately Black and brown. “If you are talking about the inhumanity, the daily violence these prisons perform, then who these prisons are named after is useful in understanding that,” Martinez said. “But what would it do to name it after somebody inspiring? It’s still a symbol of oppression.”

But to Anthony Graves, a Texas man who spent 12 years on death row after he was wrongfully convicted of capital murder, the racist names are a “slap in the face of the justice system itself.” New names could be a powerful signal of new priorities. “At the end of the day the mentality in these prisons is still, ‘This is my plantation and you are my slaves,’” he said. “To change that we have to start somewhere and maybe if we change the name we can start to change the culture.”

July 29, 2020 in Prisons and prisoners, Race, Class, and Gender | Permalink | Comments (3)

"Visualizing the racial disparities in mass incarceration"

Prisonratesbyracesex2018The title of this post is the title of this notable new briefing by Wendy Sawyer at the Prison Policy Initiative.  The subtitle of this piece provides an overview: "Racial inequality is evident in every stage of the criminal justice system - here are the key statistics compiled into a series of charts." I recommend the whole briefing, and here is a taste in text and visuals:

Recent protests calling for radical changes to American policing have brought much-needed attention to the systemic racism within our criminal justice system. This extends beyond policing, of course: Systemic racism is evident at every stage of the system, from policing to prosecutorial decisions, pretrial release processes, sentencing, correctional discipline, and even reentry. The racism inherent in mass incarceration affects children as well as adults, and is often especially punishing for people of color who are also marginalized along other lines, such as gender and class.

Because racial disparity data is often frustratingly hard to locate, we’ve compiled the key data available into a series of charts, arranged into five slideshows focused on policingjuvenile justicejails and pretrial detention, prisons and sentencing, and reentry. These charts provide a fuller picture of racial inequality in the criminal justice system, and make clear that a broad transformation will be needed to uproot the racial injustice of mass incarceration.

Following the slideshows, we also address five frequently asked questions about criminal justice race/ethnicity data....

Q: Where can I find data about racial disparities in my state’s criminal justice system?

A: Unfortunately, the more specific you want to get with race/ethnicity data, the harder it is to find an answer, especially one that’s up-to-date. State-level race and ethnicity data can be hard to find if you are looking to federal government sources like the Bureau of Justice Statistics (BJS).  BJS does publish state-level race and ethnicity data in its annual Prisoners series (Appendix Table 2 in 2018), but only every 6-7 years in its Jail Inmates series (most recently the 2013 Census of Jails report, Table 7).  The Vera Institute of Justice has attempted to fill this gap with its Incarceration Trends project, by gathering additional data from individual states.  Individual state Departments of Correction sometimes collect and/or publish more up-to-date and specific data; it’s worth checking with your own state’s agencies.....

Q: How are the data collected, and how accurate are the data?

A: Finally, the validity of any data depends on how the data are collected in the first place. And in the case of criminal justice data, race and ethnicity are not always self-reported (which would be ideal). Police officers may report an individual’s race based on their own perception – or not report it at all – and the surveys that report the number of incarcerated people on a given day rely on administrative data, which may not reflect how individuals identify their own race or ethnicity. This is why surveys of incarcerated people themselves are so important, such as the Survey of Inmates in Local Jails and the Survey of Prison Inmates, but those surveys are conducted much less frequently. In fact, it’s been 18 years since the last Survey of Inmates in Local Jails, which we use to analyze pretrial jail populations, and 16 years since the last published data from the Survey of Inmates were collected.

July 29, 2020 in Data on sentencing, Detailed sentencing data, Race, Class, and Gender | Permalink | Comments (1)

Council on Criminal Justice launches "National Commission on COVID-19 and Criminal Justice"

Half-reverseThe Council on Criminal Justice (CCJ) — which is a favorite new organization in part because they asked me to take a close look at the 1994 Crime Bill's sentencing provisions and because they recently produced a great report urging criminal justice reforms — announced via this press release yesterday that they are launching an important and impressive new commission.  Here are the details:

The Council on Criminal Justice (CCJ) today launched a national commission to assess the impacts of COVID-19 on the criminal justice system, develop strategies to limit outbreaks, and produce a priority agenda of systemic policy changes to better balance public health and public safety.

Led by former U.S. Attorneys General Alberto Gonzales and Loretta Lynch, the National Commission on COVID-19 and Criminal Justice will:

  • Evaluate the pandemic’s impact on the four major sectors of the justice system (law enforcement, courts, corrections, and community programs);
  • Identify the most effective ways to minimize the spread of COVID-19 and the impact of future pandemics on the proper functioning of the justice system, and on the people who work in and are served by it; and
  • Establish a priority agenda of policies and practices that should change, or remain changed, based on what the pandemic and response have revealed about the system’s fairness and effectiveness, particularly for communities of color.

Given the serious health and safety risks created by the novel coronavirus, the Commission intends to work quickly, producing multiple interim reports before issuing final recommendations by the end of 2020.  The Commission also welcomes and will seek input from a wide variety of outside experts and stakeholders.  To submit written testimony, please visit the Commission’s website here [and here].  Opportunities to give oral testimony will be provided at later date.

“Our response to the pandemic will shape society and the justice system for generations. It’s critical that we learn from this crisis and make the right choices as we move ahead,”said Commission Co-Chair Gonzales, who served as Attorney General under President George W. Bush. “I look forward to working with Gen. Lynch and my other Commission colleagues to develop solutions that can make a difference immediately and well into the future.”

“Our nation’s criminal justice system has not been exempt from the devastating impact of COVID-19, with longstanding issues and concerns rising to the fore,” said Commission Co-Chair Lynch, who served as Attorney General under President Barack Obama. “Now, more than ever, we need solutions anchored in facts, science, sound judgment, and trusted experience, and the widely respected members of this Commission are ideally qualified to produce them.”

The Commission’s 14 members represent a diverse range of perspectives and experience.  Commissioners include current and former justice system leaders, elected officials, advocates, a leading incarceration researcher, a directly impacted individual, and a top public health specialist....

At its opening meeting today, the Commission was presented with the first in a series of reports presenting new research on COVID-19 and criminal justice.  The study by Richard Rosenfeld and Ernesto Lopez of the University of Missouri-St. Louis [available here], examined crime trends from 27 cities leading up to the pandemic and through June. It found that:

  • Property and drug crime rates fell significantly, coinciding with stay-at-home mandates and business closings.  Residential burglary dropped by 20% between February and June 2020. Larceny and drug offenses decreased by 17% and 57%, respectively, between March and June 2020.  These declines reflect quarantines (residential burglary), business closings (larceny), and reduced police and street activity (drug offenses).
  • One exception to the drop in property crime was commercial burglary, which spiked by 200% for a single week beginning in late May.  The spike is likely associated with the property damage and looting at the start of nationwide protests following the killing of George Floyd.
  • Rates of violent crime showed little change early in the pandemic but began to increase significantly in late May.  Homicides (37%) and aggravated assaults (35%) rose significantly in late May and June.  The increases could be tied to diminished police legitimacy in the wake of protests after Floyd’s killing.
  • Robbery rose significantly — by 27% — between March and June 2020.
  • Domestic violence also rose, but the increase was not significantly greater than in previous years.  In addition, the finding was based on data from only 13 of the cities studied, and thus requires further examination.

“The impacts of COVID-19 on the criminal justice system require rapid but rigorous analysis by a set of seasoned leaders and community stakeholders who understand the significance of this moment for the future well-being of our nation,”said Commission Director Thomas Abt, a CCJ senior fellow who served as Deputy Director of Public Safety for New York State and as chief of staff to the U.S. Department of Justice Office of Justice Programs.“It’s essential that we provide justice system leaders wrestling with COVID-19’s impacts with a roadmap based on evidence, data, and the wisdom of top experts. No organization is better positioned than CCJ to lead this vital effort.”

UPDATE: Paul Cassell has a new lengthy post here at The Volokh Conspiracy under the title "What Explains Why Homicides Are Increasing Significantly Across the Country Since Late May?".  This post takes a deep dive into this new CCJ report, and I recommend the post in full for its effort to fully understand and account for developing crime data.  Here is a paragraph from the latter part of the post:

Researchers should continue to investigate why homicides have been spiking in Chicago and other major cities across the country. If the answer is that de-policing is linked to rising gun violence (as some earlier studies would suggest), further limiting police efforts to aggressively deter gun crimes will tragically lead to more shootings and more homicides. And the victims of those crimes will likely come disproportionately from African-American communities—communities that, in some instances, may want more aggressive police efforts to combat gun crimes.

July 29, 2020 in Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (0)

July 28, 2020

Notable criminal justice reform discussion in draft 2020 Democratic Party Platform

As reported in this NPR piece, "Democrats met remotely Monday afternoon to approve a lengthy policy platform that seeks to balance the interests of the Democratic Party's more moderate and liberal factions."  Here is a bit more about the meeting and its product:

The virtual meeting came three weeks ahead of what will be one of the strangest party conventions in U.S. history: No delegates and few Democratic dignitaries will travel to Milwaukee to nominate former Vice President Joe Biden to be the party's standard-bearer. Instead, the convention will be held mostly remotely, with only Biden and a few other speakers appearing from Milwaukee.

The draft platform, released last week, draws heavily from a report issued this month by joint task forces organized by Biden and his onetime campaign rival, Vermont Sen. Bernie Sanders. It tries to bridge the gap between Sanders' progressive politics and Biden's more moderate approach to governing.

The criminal justice discussion and recommendations, which appear at pp. 32 to 35 of this 80-page draft DNC platform, includes a number of reform proposals that track ideas and language emerging from the 110-page Biden-Sanders Unity Task Force recommendations discussed here.  Here are some sections that should be of special interest to sentencing fans:

Democrats know we can end the era of mass incarceration and dramatically reduce the number of Americans held in jails and prisons while continuing to reduce crime rates, which have fallen steadily from their peak nearly three decades ago....

A growing number of states have recognized it is unjust — and unjustifiable — to punish children and teenagers as harshly as adults. We believe that if you aren’t old enough to drink, you aren’t old enough to be sentenced to life without parole. The federal government will incentivize states to stop incarcerating kids, and develop community-based alternatives to prison and detention centers for youth and invest in after-school programs, community centers, and summer jobs to provide opportunities for young people at risk....

It is past time to end the failed “War on Drugs,” which has imprisoned millions of Americans — disproportionately people of color — and hasn’t been effective in reducing drug use. Democrats support policies that will reorient our public safety approach toward prevention, and away from over-policing — including by making evidence-based investments in jobs, housing, education, and the arts that will make our nation fairer, freer, and more prosperous....

Substance use disorders are diseases, not crimes.  Democrats believe no one should be in prison solely because they use drugs.  Democrats will decriminalize marijuana use and reschedule it through executive action on the federal level.  We will support legalization of medical marijuana, and believe states should be able to make their own decisions about recreational use.  The Justice Department should not launch federal prosecutions of conduct that is legal at the state level.  All past criminal convictions for cannabis use should be automatically expunged.  And rather than involving the criminal justice system, Democrats support increased use of drug courts, harm reduction interventions, and treatment diversion programs for those struggling with substance use disorders....

Sentencing decisions should be based on the facts of each case, including the severity of the offense and individuals’ circumstances. Democrats support allowing judges to determine appropriate sentences, which is why we will fight to repeal federal mandatory minimums, incentivize states to do the same, and make all sentencing reductions retroactive so judges can reconsider past cases where their hands were tied.  We believe it is long past time to end the federal sentencing disparity between crack and powdered cocaine, which has contributed to the disproportionate imprisonment of people of color.  And Democrats continue to support abolishing the death penalty....

Democrats are proud that the Obama-Biden Administration commuted the sentences of more than 1,700 people serving unjust sentences following thorough review of their individual cases, and we support the continued use of the President’s clemency powers to secure the release of those serving unduly long sentences.  We denounce President Trump’s inappropriate use of clemency to help his friends and political cronies avoid justice.  We also support establishing an independent clemency board to ensure an appropriate, effective process for using clemency, especially to address systemic racism and other priorities.

Democrats support ending the use of private prisons and private detention centers, and will take steps to eliminate profiteering from diversion programs, commercial bail, electronic monitoring, prison commissaries, and reentry and treatment programs.  Democrats believe prisoners should have a meaningful opportunity to challenge wrongful convictions and unconstitutional conditions in prisons. We also believe that too many of our jails and prisons subject people to inhumane treatment, and will work to end practices like solitary confinement for adults and juveniles and ban the use of restraints on pregnant federal inmates.  Incarcerated people must not be denied access to vital medical care or unnecessarily exposed to disease, as they have been during the COVID-19 pandemic.  And Democrats will pursue a holistic approach to rehabilitation, increasing support for programs that provide educational opportunities, including pursuing college degrees, for those in the criminal justice system, both in prison and upon release.

Democrats believe in redemption.  We must deepen our commitment to helping those who have served their time re-enter society, earn a good living, and participate in our democracy as the full citizens they are.  We will aim to ensure access to transitional housing for returning citizens, support expanded access to mental health and substance use treatment, and will stop the practice of reincarcerating people for technical violations of probation or parole. Democrats support federal and state efforts to “ban the box” and will make it easier for returning citizens to access work opportunities through the Job Corps.  The formerly incarcerated should not be blocked from exercising their voting rights or accessing public services, including Pell Grants and nutrition assistance, available to other free citizens of the United States.  Continuing to punish a person after they have rejoined the community is both cruel and counterproductive.

There are lots of consequential (and politically and practically challenging) reforms being proposed here, ranging from pledging to try to do away with the death penalty and all mandatory minimum sentencing provisions to significant marijuana reforms to the creation of a clemency board to making "all sentencing reductions retroactive."  If the Democrats could achieve even a portion of what's called for in this document in the coming years, it would make for a truly historic period in federal criminal justice reform.

And yet, though I like a lot of what I see here, I am still sad some of the most interesting aspects of the Biden-Sanders Unity Task Force recommendations being left out.  Specifically, that document called, inter alia, for "issu[ing] new federal guidelines that advise prosecutors not to overcharge cases in order to coerce plea deals, or to pursue harsher sentences in order to penalize citizens for exercising their right to a jury trial"; for "encourag[ing] states to invest tax revenue from legal marijuana industries to repair damage to Black and brown communities hit hardest by incarceration"; for "task[ing] the U.S. Sentencing Commission with conducting a comprehensive review of existing sentencing guidelines and statutory sentencing ranges, with the goal of generating legislative recommendations, promulgating new guidelines, and issuing formal guidance to reduce unreasonably long sentences and promote rehabilitation"; for "creat[ing] a U.S. Reentry Commission to conduct a comprehensive review of barriers to reentry, with the goal of taking executive action and proposing legislation to remove as many as possible." 

A number of progressives were concerned that the Biden-Sanders Unity Task Force recommendations were too moderate on a number of matters, and it seems that this draft 2020 Democratic Party Platform is reining in the reform vision and ambition still further at least in the criminal justice arena.  That said, both the language and the proposals of this document are far more far-reaching and reform-minded than any comparable document in recent decades.  Though not as bold as some might hope, the fundamental boldness of this draft platform should not be underappreciated.

Prior related post:

July 28, 2020 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

"Death Row Narratives: A Qualitative Analysis of Mental Health Issues Found in Death Row Inmate Blog Entries"

The title of this post is the title of this new article now on SSRN authored by Robert Johnson and Jacqueline Lantsman.  Here is its abstract:

Death row inmate narratives, culled from online blogs, are used to explore the social determinants of mental health in the context of the stresses and deprivations of living on death row.  Legal and correctional procedures that affect death row inmates are conceptualized as social determinants of mental health.  These procedures include the granting or denying of stays of execution, conditions of solitary confinement during death row and particularly the death watch, and impending dates of execution.  Death row narratives offer a nuanced account of the many ways condemned prisoners must contend with their powerlessness as an essential element of life under sentence of death.

July 28, 2020 in Death Penalty Reforms, Prisons and prisoners | Permalink | Comments (0)

US Sentencing Commission publishes "Federal Probation and Supervised Release Violations"

Cover_violations-report-2020The US Sentencing Commission today released this lengthy notable new report titled simply "Federal Probation and Supervised Release Violations." This USSC webpage provides a summary and a extended account of "key findings":

Summary

Federal Probation and Supervised Release Violations presents data on approximately 108,000 violation hearings that occurred between 2013 and 2017.  The report examines the prevalence, types, and locations of federal supervision violations as well as the characteristics of more than 82,000 violators. The report also compares supervision violators to the population of federal offenders originally sentenced to probation or a sentence including a term of supervised release during the same time period. (Published July 28, 2020)

Key Findings
  • Nationally, the number of individuals under supervision was relatively stable during the study period, ranging from 130,224 to 136,156 during the five years. Half of the individuals under supervision, however, were concentrated in only 21 of the 94 federal judicial districts.
  • Nationally, the rate of violation hearings for individuals on supervision also was relatively stable, ranging from 16.2 to 18.4 percent during the five years, with an overall rate of 16.9 percent.  The prevalence of supervision violations, however, varied considerably among the federal judicial districts.
    • Violations accounted for more than one-third of individuals on supervision in the Southern District of California (42.1%), District of Minnesota (37.4%), Western District of Missouri (34.3%), District of Arizona (33.7%), and District of New Mexico (33.4%).  In contrast, violations accounted for less than five percent of individuals on supervision in the Districts of Connecticut (4.5%) and Maryland (4.7%).
  • Supervision violators tended to have committed more serious original offenses than federal offenders whose original sentence was probation or included a term of supervised release during the same time period.
    • For example, the rates of supervision violators originally sentenced for violent and firearms offenses (7.9% and 20.4%, respectively) were approximately twice as high compared to offenders originally sentenced during the study period (3.7% and 12.8%, respectively), a finding which is consistent with prior Commission recidivism research.
  • Drug offenses were the most common primary offense type for both supervision violators and federal offenders whose original sentence was probation or included a term of supervised release during the same time period.  There were, however, notable variations by drug type.
    • For example, crack cocaine offenders accounted for only 9.9 percent of drug offenders whose original sentence was probation or included a term of supervised release, but they accounted for almost one-third (32.1%) of supervision violators, a greater proportion than any other drug type.  The disproportional representation of crack cocaine offenders among supervision violators is consistent with prior Commission recidivism research.  On the other hand, drug offenders who received the safety valve at their original sentencing were underrepresented among supervision violators (19.1% compared to 30.7%), a finding that also is consistent with prior Commission recidivism research.
  • Supervision violators tended to have more serious criminal histories than federal offenders whose original sentence was probation or included a term of supervised release.
    • Approximately one-quarter (24.6%) of offenders with supervision violations were in the lowest Criminal History Category (CHC I) at the time of their original sentencing compared to almost half (44.9%) of offenders whose original sentence was probation or included a term of supervised release during the study period. On the other end of the spectrum, 18.3 percent of offenders with supervision violations were in the highest Criminal History Category (CHC VI) at the time of their original sentencing compared to 9.9 percent of offenders whose original sentence was probation or included a term of supervised release during the study period. This pattern is consistent with prior Commission recidivism research.
  • The majority of supervision violations were based on the commission of an offense punishable by a term of one year or less or a violation of another condition of supervision not constituting a federal, state or local offense (Grade C Violation).
    • More than half (54.9%) of violations were Grade C (the least serious classification), nearly one-third (31.5%) were Grade B, and 13.6 percent were Grade A (the most serious classification).
  • Offenders who were originally sentenced for more serious offenses tended to commit more serious supervision violations.
    • For example, over four-fifths of the Grade A violations were committed by offenders originally sentenced for drug offenses (52.0%), firearms offenses (24.5%), or violent offenses (6.3%).
  • Offenders who violated their conditions of supervision typically did so within the first two years.
    • On average, 22 months elapsed from the time supervision commenced to the commission of the supervision violation, but the elapsed time was notably longer for Grade A violations (the most serious) at 33 months.
  • The majority of supervision violators were sentenced in accordance with the Chapter Seven Revocation Table.
    • More than half (59.8%) were within the applicable range, just over one-quarter (29.1%) were below the range, and 11.1 percent were above the range. Courts tended to impose sentences within the applicable guideline range less often for more serious supervision violations. For example, for Grade A violations (the most serious classification), 39.4 percent were sentenced within the applicable range, and 54.2 percent were sentenced below the range. In contrast, for Grade C violations (the least serious classification), 63.6 percent were sentenced within the range, and 22.1 percent were sentenced below the range.

July 28, 2020 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (6)

New poll highlights how quickly many have rising concerns about rising crime

Watching live television these days in central Ohio means seeing lots of campaign ads, and those now running most often are the Trump campaign's ads claiming crime will surge if Joe Biden were elected.  Seeing all these ads (and noticing that we no longer hear Prez Trump going after Biden for his support of the tough 1994 Crime Bill), I keep thinking the Trump campaign must have some internal polls indicating that crime and fear messages will play well with many voters across the political spectrum. 

Now, via this Hill piece headlined "Poll: Majority say they are concerned about rising crime in US cities," I see there is a public poll highlighting how many are really concerned about rising crime.  Here are excerpts:

A majority of Americans say they are concerned about rising crime in U.S. cities, according to a new Harvard CAPS/Harris poll released exclusively to The Hill on Monday. Seventy-seven percent of respondents say they are concerned that crime is rising in the nation’s cities, while 46 percent of respondents said they were concerned about rising crime in their own communities.

"At the same time they see an increase of violence and crime and are concerned that prosecutors are not prosecuting the crimes — they blame the protests and the high unemployment when asked what is responsible for the spike in violence," said Harvard CAPS/Harris polling director Mark Penn. "They also single out social media for being used to coordinate violence and in their view not doing much to curb it."

A New York Times analysis published earlier this month showed that overall crime down is done 5.3 percent in 25 large U.S. cities in relation to last year.  Violent crime was down 2 percent, according to the findings. However, murder in the same 25 cities is up 16.1 percent compared to 2019, according to the Times.  New York's homicide rate for the first half of 2020 is up 23 percent over 2019, according to the city's police department.

New York police reported 205 citywide shooting incidents in June 2020, compared to 89 in June 2019, marking a 130.3 percent increase.  Burglary in the city also increased, with 1,783 incidents reported in June 2020 compared to 817 in June 2019. In Chicago, homicides rose 39 percent between the last week of June and the first week of July of this year, according to the city's police department.

The development come as calls to defund police departments amid nationwide protests over racial injustice grow louder. The Trump administration, in turn, has touted a staunch "law and order" message.  President Trump announced last week that he would send federal law enforcement officers into Chicago and Albuquerque, N.M., as part of his crackdown on what he has called an unchecked surge of violence in Democratic-run cities....

The Harvard CAPS/Harris Poll online survey of 1,932 registered voters was conducted on July 21-23.  It is a collaboration of the Center for American Political Studies at Harvard University and The Harris Poll.  The Hill will be working with Harvard CAPS/Harris Poll throughout 2020. Full poll results will be posted online later this week.

Notably, this prepared testimony of Attorney General William Barr for today's scheduled House Judiciary Committee hearing also makes such of rising crime and the need for "law and order."  This polling confirms my suspicion that we will be hearing a lot more on these topics in the next three months as a big election approaches. 

July 28, 2020 in National and State Crime Data, Who Sentences | Permalink | Comments (0)

At resentencing, Senator Rand Paul's attacker gets additional 13 months (eight to be served in federal prison, six in home confinement)

This local article, headline "KY man who tackled U.S. Sen. Rand Paul sentenced to another 13 months confinement," provides some details from a high-profile resentencing that took place yesterday and included a number of interesting elements:

The neighbor who lost his temper and attacked Republican U.S. Sen. Rand Paul in 2017, breaking six of his ribs, has been sentenced to an additional 13 months confinement.  A federal judge initially sentenced Rene Boucher to 30 days in jail for the November 2017 attack, along with 100 hours of community service and a $10,000 fine.

During a video hearing Monday, U.S. District Judge Matthew F. Leitman handed down the new sentence against Boucher — eight months in prison and six months on home confinement.  However, Leitman gave Boucher credit for the 30 days he already served, so he will have seven more months behind bars.

Prosecutors had appealed the initial sentence for Boucher, arguing it was unreasonably light, and won the right to try to get a longer sentence.  That led to Monday’s hearing.  The new sentence for Boucher still wasn’t as long as the government wanted.  Assistant U.S. Attorney Brad Shepard objected to the sentence, which could lead to yet another appeal by the government for stiffer sentence for Boucher.

The attack made national news because of Paul’s position, but prosecutors have acknowledged it had nothing to do with politics.  Rather, Boucher, who lived next door to Paul in a gated community in Bowling Green, attacked Paul because he got angry over Paul stacking limbs and other yard waste near their shared property line, according to the court record....

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.  Under advisory guidelines, Boucher faced a potential sentence of 21 to 27 months. Federal judges can impost sentences below those guidelines.

In handing down a lower sentence, U.S. District Judge Marianne O. Battani cited Boucher’s military service, his involvement in his church and her belief that the attack was out of character for Boucher.  However, the U.S. 6th Circuit Court of Appeals ruled 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.

Shepard renewed a call for a 21-month sentence for Boucher because of the severity of Paul’s injuries.  The punishment also should to be tough enough deter similar attacks, Shepard said.  “The court I think needs to send the message . . . that we cannot continue as a society to resort to violence,” Shepard said.

Paul and his wife, Kelly, submitted written statements about the attack the first time Boucher was sentenced, but spoke in person during the video hearing Monday.  Paul said he’d never had cross words with Boucher and so had no idea he was unhappy before Boucher blindsided him.  Paul described the intense pain and his struggles to breathe after the attack, as well as the history of physical problems since, including bouts with pneumonia, night sweats and fever; coughing up blood; surgery to remove part of his scarred lung; and still more surgery to drain infected fluid.  Paul said his lung capacity will likely be reduced the rest of his life, and he has chronic pain.  “I don’t know what a night without pain is like, or a day without pain,” Paul said....

Boucher’s attorney, Matthew J. Baker, said Boucher is “profoundly sorry” for the attack, but argued against any additional time for Boucher, a physician.  Baker said Boucher’s initial sentence was appropriate, and that he had faced additional punishment by way of a judgment of more than $600,000 in a state civil lawsuit Paul filed against him over the attack.  That judgment included $375,000 in punitive damages, which by definition are to punish a defendant....

Lietman said it was heartbreaking to hear Paul and his wife describe the fallout from the attack. But the judge said he was choosing a sentence below the guideline range for several reasons, including Boucher’s long record of work with his church, his eight years as a U.S. Army doctor, the fact that the attack was out of character, and the damage to his reputation from the crime.  Leitman said $375,000 punitive damage award in state court also figured into his decision. “That’s a lot of punishment,” he said.

Leitman did not set a date for Boucher to begin the sentence.

I would be surprised if the feds go through with another appeal, and I would be even more surprised if they would prevail on a second appeal.  The Sixth Circuit panel opinion reversing the initial 30-day sentence made much of the original "dramatic downward variance" from a guideline minimum of 21 months, and Judge Lietman seems to have addressed some of the panel's chief concerns when imposing a longer sentence closer to the bottom of the advisory range.  And Judge Lietman's reliance on the civil punishment from the sizable punitive damage award would seem to be a distinctive additional factor supporting the reasonableness of a sentence below the guideline range.

Prior related posts:

July 28, 2020 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

July 27, 2020

Deputy AG defends federal executions that "operated entirely within the law"

Deputy Attorney General Jeffrey Rosen took to the pages of the New York Times to publish this piece defending the Justice Department's successful effort to move forward with three federal executions earlier this month.  Here are excerpts:

The death penalty is a difficult issue for many Americans on moral, religious and policy grounds.  But as a legal issue, it is straightforward.  The United States Constitution expressly contemplates “capital” crimes, and Congress has authorized the death penalty for serious federal offenses since President George Washington signed the Crimes Act of 1790.  The American people have repeatedly ratified that decision, including through the Federal Death Penalty Act of 1994 signed by President Bill Clinton, the federal execution of Timothy McVeigh under President George W. Bush and the decision by President Barack Obama’s Justice Department to seek the death penalty against the Boston Marathon bomber and Dylann Roof.

The recent executions reflect that consensus, as the Justice Department has an obligation to implement the law.  The decision to seek the death penalty against Mr. Lee was made by Attorney General Janet Reno (who said she personally opposed the death penalty but was bound by the law) and reaffirmed by then-Deputy Attorney General Eric Holder.  Mr. Purkey was prosecuted during the George W. Bush administration, and his conviction and sentence were vigorously defended throughout the Obama administration. The former judge who imposed the death sentence on Mr. Honken, Mark Bennett, said that while he generally opposed the death penalty, he would not lose any sleep over Mr. Honken’s execution.

In a New York Times op-ed published on July 17, two of Mr. Lee’s lawyers criticized the execution of their client, which they contend was carried out in a “shameful rush.”  That objection overlooks that Mr. Lee was sentenced more than 20 years ago, and his appeals and other permissible challenges failed, up to and including the day of his execution.  Mr. Lee’s lawyers seem to endorse a system of endless delays that prevent a death sentence from ever becoming real.  But his execution date was announced almost a year ago, and was initially set for last December. It was delayed when his lawyers obtained six more months of review by unsuccessfully challenging the procedures used to carry out his lethal injection....

[I]f the United States is going to allow capital punishment, a white-supremacist triple murderer would seem the textbook example of a justified case.  And if death sentences are going to be imposed, they cannot just be hypothetical; they eventually have to be carried out, or the punishment will lose its deterrent and retributive effects.

Rather than forthrightly opposing the death penalty and attempting to change the law through democratic means, however, Mr. Lee’s lawyers and others have chosen the legal and public-relations equivalent of guerrilla war.  They sought to obstruct by any means the administration of sentences that Congress permitted, juries supported and the Supreme Court approved.  And when those tactics failed, they accused the Justice Department of “a grave threat to the rule of law,” even though it operated entirely within the law enacted by Congress and approved by the Supreme Court.  The American people can decide for themselves which aspects of that process should be considered “shameful.”

A few of many recent prior related posts:

July 27, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

"Decarceration and Crime During COVID-19"

The title of this post is the title of this notable new online report from the ACLU.  Here is how the short report gets started:

COVID-19 presents an enormous risk to those in carceral facilities and their surrounding communities. Since the pandemic began, more than 50,000 people in prison have tested positive for the coronavirus, and over 600 have died. These infections and deaths were largely preventable, as we demonstrated in April by working with academic partners to build an epidemiological model that illustrated the deadly threat of COVID-19 in jails. In response to this crisis — and in many localities, only after substantial public pressure and threats of litigation — some governors, sheriffs, and judges made the decision to shift detention policies to prioritize protecting the lives of those who live and work in jails and prisons. Some states and localities reduced low-level arrests, or set bail to $0 for certain charges. Others released a small subset of incarcerated people who were nearing the end of their term or were most vulnerable to the disease — sometimes under court order.

While no jail system has gone far enough, county jails and state prison systems across the U.S. have taken differing levels of action, allowing for a unique opportunity to explore the relationship between decarceration and crime in the community. To explore this, the ACLU’s Analytics team looked for data on jail population and crime in locations with the largest jail and overall populations. We were able to find reported data on both from 29 localities. (Crime data more recent than May was not readily available during analysis.)

Nearly every county jail that we examined reduced their population, if only slightly, between the end of February and the end of April. Over this time period, we found that the reduction in jail population was functionally unrelated to crime trends in the following months. In fact, in nearly every city explored, fewer crimes occurred between March and May in 2020 compared to the same time period in 2019, regardless of the magnitude of the difference in jail population.

We found no evidence of any spikes in crime in any of the 29 locations, even when comparing monthly trends over the past two years.  The release of incarcerated people from jails has saved lives both in jails and in the community, all while monthly crime trends were within or below average ranges in every city. 

July 27, 2020 in Impact of the coronavirus on criminal justice, National and State Crime Data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Looking for broader relief and reforms for elderly prisoners in wake of Roger Stone clemency

In recent posts here and here, I have stressed the fact that Prez Trump's explained his decision to commute Roger Stone 's prison sentence in part by stressing that he "is a 67-year-old man, with numerous medical conditions" who "would be put at serious medical risk in prison" and "has already suffered greatly."  Those sound sentencing considerations could and should help justify releasing from prison many more (lower-profile) elderly offenders these days, and the latest issue of the Federal Sentencing Reporter highlights the humanitarian and fiscal reasons why the aging of our prison populations was a pressing concern even well before anyone had heard of COVID-19.

I note these posts and points again because of this effective new Law360 piece headlined "After Stone Clemency, Activists Rally For Elder Parole."  I recommend the piece in full, and here are excerpts:

While Democrats and even some Republicans have questioned the ethics of Trump's decision [to commute Stone's prison term], others have highlighted how the same logic should be applied to thousands of other aging people, many of whom have actually served years and even decades of their sentences.... Roughly 288,800 people over age 50 currently live in state and federal prisons, and an estimated 70% of them have a current chronic illness or serious medical condition, according to the Alliance for Safety and Justice.

Older people make up the fastest-growing population within U.S. state and federal prisons, which have become hot spots for the viral contagion that is increasingly deadly the older its host.  A recent study found that people in prison are 550% more likely to get COVID-19 and 300% more likely to die from it.  So far, at least 625 imprisoned people have died from the virus.

Criminal justice reformers aiming to decrease the country's world-leading incarceration rate have advocated for years that aging people should be considered for early release or parole, considering the often inadequate health care available in correctional facilities as well as the fact that, generally speaking, the older you are, the less likely you are to commit another crime. Older people also cost more, per capita, to incarcerate.

Those calls have been amplified in the wake of widespread protests against racial injustice in the legal system. Last week, hundreds of New Yorkers marched in Manhattan to demand the state Legislature pass a package of bills, including one that would make people who've served at least 15 years eligible for parole at age 55. A related bill would grant parole to anyone eligible unless there is "a current and unreasonable risk" the person would break laws if released....

One of the easiest methods of releasing people, including the elderly, from dangerous prisons is the executive clemency power, which some governors have wielded more widely during the pandemic.  Illinois Gov. J.B. Pritzker, for example, has commuted more than 20 state prisoners' sentences since March.  In his first year in office, he commuted just three sentences.  In April, New Mexico Gov. Michelle Grisham commuted the sentences of 46 people convicted for low-level crimes who were within 30 days of being released; Oklahoma Gov. Kevin Stitt commuted 450 sentences that same month.

But while some governors have been actively exercising clemency powers, Trump's commutation for Stone marked his first since declaring a pandemic.  Stone reportedly has asthma and a history of respiratory conditions that makes him vulnerable to COVID-19; in late June, he posted social media videos saying "incarceration at a facility with COVID-19 during a pandemic is a deep state death sentence."...

Instead of granting more people clemency, Trump's response to the threat COVID-19 poses to people in prison has come via U.S. Department of Justice policies.  In March, his administration instructed the Bureau of Prisons to release more people to home detention and to consider the medical risks of holding people in pretrial detention amid rising prison COVID-19 infection counts.  According to a BOP spokesperson, 6,997 people have been placed on home confinement in response to the COVID-19 pandemic — approximately 4% of the federal prison system's 158,838-person population.

Another method of release during the pandemic has been "compassionate release," a sentence reduction typically reserved for the terminally ill or severely medically compromised.  The 2018 First Step Act, Trump's signature criminal justice achievement, made it easier to seek such releases, but only about 150 people were able to take advantage over the first 14 months of the law.  During the pandemic, that number has more than quadrupled as incarcerated people, judges and even prosecutors have mobilized to decrease prison populations, but the grand total of 776 is still a fraction of of the BOP's 158,838-person population — 20% of which is people over age 51, four months into a deadly pandemic....

Judges, for their part, have "definitely been more willing to grant compassionate release due to COVID-19," according to Amy Povah, a formerly incarcerated activist who runs Can-Do Clemency. But she added that some judges are still denying release, even in cases where people are particularly at risk of infection. "We're extremely concerned about medically compromised people who cannot socially distance in prison," she said. "They don't have the proper personal protective equipment.  Most of them, from what I understand, do not have hand sanitizer.  A lot of them are improvising by cutting up T-shirts because there's not enough masks."... Povah, who is advocating for clemency for Riojas and dozens of others, said the Stone commutation was a signal that the president is aware of the plight aging people in prison face amid the pandemic. "It gives me hope," she said.

I am not as hopeful as Amy Povah that Prez Trump is giving much thought to the plight aging people in prison face amid the pandemic.  That said, though I continue to want to (foolishly?) imagine that Prez Trump might recall the adulation he received after his clemency grant to Alice Marie Johnson and then seek some positive press by granting clemency to, say, lifer marijuana offenders assembled at the Life for Pot website.  

Wanting to be hopeful, I think about the possibility that the new bill from Senators Durbin and Grassley, the COVID-19 Safer Detention Act, could get incorporated into the latest COVID response legislation working its way through Congress.  This bill would give both BOP and federal judges broader discretion to send elderly prisoners home earlier; this authority makes sense even without an on-going pandemic and is even more important and urgent now.

A few of many prior related posts:

July 27, 2020 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Offender Characteristics, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

July 26, 2020

A century after his birth, just a few choice quotes to celebrate Marvin Frankel, father of sentencing reform

81p9ffvBF7LA kind reader pointed out for me that exactly 100 years ago today, the late great Marvin Frankel was born.  Though he served in many roles through his career, I think of this historic figure as Judge Frankel because of his service on the US District Court and especially because he was a judge when he wrote his most famous book, Criminal Sentences: Law Without Order.  This book's criticisms of "lawless" sentencing practices played a huge role in the emergence of structured sentencing systems, and Judge Frankel has been frequently and widely described as the "father of sentencing reform."

Though there are many reasons not to love the form of certain reforms (like the federal sentencing guidelines) that Judge Frankel helped engender, there are no reasons not to love Criminal Sentences: Law Without Order.  The book is less than 125 pages, and seemingly every page is full of shrewd insights and rhetorical flourishes.  In addition to being among the most influential books of legal scholarship, Criminal Sentences: Law Without Order is simply a great (and still timely) read.  Though it is hard to put together a fitting tribute to Judge Frankel, it is easy to find quotes from his book to provide a flavor of his contributions a century after his birth. So, a taste:

at page 5: "[T]he almost wholly unchecked and sweeping powers we give to judges in the fashioning of sentences are terrifying and intolerable for a society that professes devotion to the rule of law."

at pages 17-18: "Conditioned in the direction of authoritarianism by his daily life in court, long habituated as a lawyer to the stance of the aggressive contestant, and exercising sentencing powers frequently without practical limits, the trial judge is not discouraged from venting any tendencies toward righteous arrogance. The books and the reliable folklore are filled with the resulting horror stories — of fierce sentences and denunciatory attacks upon defendants."

at page 21: "[S]weeping penalty statutes allow sentences to be 'individualized' not so much in terms of defendants but mainly in terms of the wide spectrums of character, bias, neurosis, and daily vagary encountered among occupants of the trial bench."

at page 39: "The question “Why?” states a primitive and insistent human need. The small child, punished or deprived, demands an explanation. The existence of a rationale may not make the hurt pleasant, or even just. But the absence, or refusal, of reasons is a hallmark of injustice.... The despot is not bound by rules. He need not account for what he does. Criminal sentences, as our judges commonly pronounce them, are in these vital aspects tyrannical."

at page 103: "The arbitrary cruelties perpetrated daily under our existing sentencing practices are not easy to reconcile with the cardinal principles of our Constitution.  The largely unbridled powers of judges and prison officials stir questions under the clauses promising that life and liberty will not be denied except by 'due process of law.'  The crazy quilt of disparities — the wide differences in treatment of defendants whose situations and crimes look similar and whose divergent sentences are unaccounted for — stirs doubts as to whether the guarantee of the 'equal protections of the laws' is being fulfilled."  

Final paragraphs concluding with a call for the creation of a "Commission on Sentencing":

The uses of a commission, if one is created, will warrant volumes of debate and analysis.  For this moment and for this writer, the main thing is to plead for an instrumentality, whatever its name or detailed form, to marshal full-time wisdom and power against the ignorance and the barbarities that characterize sentencing for crimes today....

Lawyers and judges, tending to be human, are not likely to greet with rampant enthusiasm demands for change in their settled ways.... So to any reader who has come to this concluding paragraph — but perhaps somewhat especially to the lay reader — I would urge that you not close the topic along with the book.  The topic has to do with monstrous evils perpetrated daily for all of us, and with our implicit or express acquiescence.  The need for change is clear.  Our justly proud awareness that "we the people" have the power should carry with it a corollary sense of duty.  It is our duty to see that the force of the state, when it is brought to bear through the sentences of our courts, is exerted with the maximum we can muster of rational thought, humanity, and compassion.

July 26, 2020 in Federal Sentencing Guidelines, Recommended reading, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)