Sentencing Law and Policy

"Denialism and the Death Penalty"

The title of this post is the title of this notable new paper now on SSRN authored by Jenny-Brooke Condon.  Here is its abstract:

The persistence of capital punishment as a constitutional form of punishment in the United States reflects deep denialism about the practice and the role of the courts in regulating it.  Denialism allows judges to embrace empirically contested narratives about the death penalty within judicial decisions, to sanction execution methods that shield and distort the pain associated with state killing, and to ignore the documented influence of race on the death penalty’s administration.  This Article draws upon the concept of denialism from the transitional justice context, a theory that explicates denial in responses to mass human rights violations and collective violence.  It describes mechanisms of denial in judicial regulation of capital punishment and argues that conditions will not be ripe for judicial abolition of the death penalty until this denialism is better understood and confronted.  I identify potential entry points for exposing and overcoming denialism in Eighth Amendment analysis.

FAMM urges Senators to "refrain from filling the vacancies" on the US Sentencing Commission until next year

I reported in this post earlier this week on Prez Trump's (long overdue) nominations to the US Sentencing Commission, a critical criminal justice agency that has been crippled by having only two (of seven) Commissioners in place since the start of 2019.  In my prior post, I speculated that these nomination have been put forward too late in the year before a presidential election to likely move forward.  And now I just saw this letter from the folks at FAMM to Senate Judiciary Chair Lindsey Graham and ranking member Dianne Feinstein urging them to refrain from filling the USSC vacancies until next year when the nominees can be properly vetted.  Here is some of the text of the FAMM letter:

The Senate’s role in shaping the composition of the U.S. Sentencing Commission has never been more important.  The commission will play a vital role in the continued implementation of the First Step Act.  The Senate must carefully consider whether nominees will faithfully implement the new reforms passed by Congress or whether they will seek to curtail them.  In addition, the commission must address a federal prison system that has been overwhelmed by the spread of COVID-19.  The deaths to date of 112 federal prisoners and at least one staff member compel serious reflection about various aspects of the federal prison system, including sentence lengths and early release mechanisms, over which the commission has some authority.

Finally, the committee must ensure that nominees to the Sentencing Commission are dedicated to addressing racial discrimination in our justice system.  The commission promulgates guidelines that are used to set prison terms for approximately 70,000 individuals of all races and backgrounds every year.  The legitimacy of those guidelines rests, in part, on the reasonable belief that the commissioners’ decisions are driven by data and evidence, not bias and ideology.  We believe that one important step the Senate can take to promote confidence in the commission’s work is to make sure that its members have diverse backgrounds, as well as varied life and work experiences.

Only seven individuals serve on the commission.  Each one is important.  Given the stakes, especially at this moment, the Senate must thoroughly examine each nominee before that person is awarded a six-year term.  Because there is not enough time left in this session to undertake this careful consideration, we strongly urge you to delay filling the commission’s vacant seats until January.

I do not think I am squinting too hard to read between the lines of this letter by suggesting that it seems one reason FAMM might like to waiting until 2021 to move forward is because FAMM hopes the person in charge of nominations in 2021 might not be the same person who put forward these nominations.

Prior related posts:

• Prez Trump makes (tough) nominations to US Sentencing Commission 
• Lots of notable reaction to Prez Trump's nominations to the US Sentencing Commission
• Another round of criticisms of Prez Trump's decision to nominate Bill Otis to US Sentencing Commission 
• FAMM writes extended letter to Prez Trump to "strongly discourage" re-nomination of Bill Otis to US Sentencing Commission 
• With his return to blogging, is Bill Otis no longer a potential nominee for the US Sentencing Commission? 
• Notable new talk of (badly needed) new nominees for the US Sentencing Commission
• Prez Trump finally announces full slate of (unlikely to be confirmed?) new nominees for the US Sentencing Commission 

"Pipelines to Power: Encouraging Professional Diversity on the Federal Appellate Bench"

The title of this post is the title of this notable new report from the Center for American Progress and authored by Maggie Jo Buchanan. A few excerpts will highlight why I think this is an important topic for a sentencing blog:

The U.S. federal judiciary holds incredible sway over life in America. From the U.S. District Courts and the U.S. Courts of Appeals all the way up to the U.S. Supreme Court, the individuals holding lifetime appointments to the bench determine the contours of America’s laws and whose rights are protected under those laws.  But professional diversity on the federal appellate courts is severely lacking, with significant implications for the type of legal expertise underlying the opinions these judges issue.  Only about 1 percent of sitting circuit court judges have spent the majority of their careers as public defenders or within a legal aid setting.  In contrast, the federal appellate bench is swamped with those who spent the majority of their careers in private practice or as federal prosecutors — making up more than 70 percent of all sitting appellate judges.  No sitting judge spent the majority of their career with a nonprofit civil rights organization....

This lack of diversity not only reflects the closed and elitist nature of the federal appellate bench but also represents a barrier to the courts’ ability to develop intellectually rich jurisprudence grounded in an awareness of a broad set of individuals’ experiences across the country.  To improve this state of affairs, significant disruptions are needed — from law school through every stage of an attorney’s prejudicial career—to broaden pathways to the federal bench and challenge long-held assumptions on the “right” type of attorney to take up a gavel....

As noted previously, the appellate bench is stacked with individuals from private practice backgrounds — particularly men from all race and ethnicities, who are significantly more likely than women to be from this professional setting.  Nearly two-thirds of circuit court judges spent the majority of their careers in private practice. The proportion of white male judges and male judges from communities of color from this field is close to 70 percent for both groups.  That proportion drops to less than 60 percent of the white women on the bench and less than half of women of color — speaking to the continuing discrimination women face when rising through the ranks of many law firms....

The second-most represented sector is the federal government.  The majority—more than 60 percent—of those judges spent the bulk of their careers within the federal government as prosecutors. Only one spent the majority of her career as a federal public defender.  Several of these judges held other positions throughout the U.S. Department of Justice (DOJ), and still others in this category spent the majority of their careers in the military or at other federal agencies, such as the U.S. Patent and Trademark Office.

White male judges in this category are less likely than judges from other demographics to have spent the majority of their careers in federal government.  In fact, male judges from communities of color are the demographic group most likely to have worked within federal government for the bulk of their careers, with the most common career path being a prosecutor.  The role of federal prosecutor was also the most common career path among all female judges who spent the majority of their careers in federal service.

The third-most represented sector is made up of individuals who spent the majority of their careers in state and/or local government.  Unlike their federal counterparts, however, the majority of these judges spent their government service careers in roles other than a state or local prosecutor.  Most common was a variety of different roles within a state attorney general’s office, with careers within a governor’s office or as a city or state solicitor also being common.

Finally, the number of judges who spent the majority of their careers as public defenders at the state level, including Washington, D.C., doubles the federal number — albeit from one judge to two.  Women in general are more likely than men to have worked at the state or local level, with a full one-third of judges who are women of color having spent the majority of their careers in such roles and white women ranking second-most likely to have done so.

Republican Georgia legislator looking to use fiscal argument to bolster death penalty abolition

In this post around the start of the pandemic, I wondered aloud "Might COVID-19 ultimately bring an end to the death penalty in the United States?".  One point I made in that post was that, amidst economic difficulties, the death penalty might seem an even more problematic use of limited government time and resources.  As I put it in that post: "I think there will be very strong arguments that this punishment is a kind of 'legal luxury' that we really cannot and ought not invest resources in while we try to rebuild after COVID-19."  

I returned to that post this morning upon seeing this new local press piece from Georgia headlined "Georgia GOP lawmaker makes budget argument to abolish death penalty."  Here are excerpts:

A Georgia Republican says he thinks the state House of Representatives is just a dozen votes shy of advancing a bill that would abolish the death penalty. Rep. Brett Harrell of Snellville said Thursday that he thinks highlighting the cost of capital punishment may help win over the support needed, at least in the one chamber.  Harrell, who chairs the influential House Ways and Means Committee, said he intends to push for the funding needed to pay for an analysis of how much Georgia spends to execute people.

“I think this conservative concerns about the death penalty focus is important and to focus on those fiscal costs will be important to us to gain those last few votes necessary to move the issue forward in Georgia,” he said.

The Gwinnett County lawmaker took part in a virtual discussion Thursday that was organized by Conservatives Concerned about the Death Penalty, a national group that argues capital punishment is inconsistent with conservative principles.  He appeared along with two Republicans from Ohio and Wyoming. Hannah Cox, the group’s senior national manager, called the death penalty a “failed big government program that fails to measure up to our values of limiting government, adhering to fiscal responsibility and protecting the sanctity of human life.”  She said most of the costs stem from the intensive trials required for a capital murder case – and not, as most assume, the lengthy appellate process.

She said the squeeze on state budgets due to the COVID-19 pandemic has brought renewed scrutiny to the cost.  Georgia just recently cut 10% from its budget, partly because of declining revenues due to the viral outbreak.

Harrell sponsored a bipartisan bill last year that would have ended the death penalty in Georgia, requiring instead life in prison without parole for those sitting on death row.  The bill never cleared a committee.  Georgia is among the 25 states that have the death penalty.

Now, he’s sharpening his fiscal line of attack, calling the death penalty an “incredibly expensive proposition.” He pointed to an example in the 1990s that left local officials jailed for a day in Lincoln County when they refused to foot the bill for a second capital murder trial after the courts overturned a death sentence. At the time, the case had already cost the rural county about $100,000; the county’s entire budget was $2.2 million.

“Evidence suggests – study after study – that it is not an actual deterrent to crime and we have alternatives, such as life without parole,” Harrell said. “As someone who is fiscally conservative and prefers a small government consistent with efficient implementation of government, the death penalty fails on all those measures.”

He also noted that Georgia has exonerated six people since the death penalty was reinstated in 1976. “Someone who is also a social conservative and someone who is pro-life should also see the death penalty as very problematic in that the likelihood is very great that innocent have been executed as well,” Harrell said.

Because many of my criticisms of many aspects of the criminal justice system are situated in the concern that it does not involve "efficient implementation of government," I am always drawn to these kinds of arguments.  And, as mentioned before, I think the misused resources arguments against the death penalty are especially strong during a time of national crisis when monies would seem better spent seeking to help those in need rather than in trying to secure and preserve a death sentence that likely never will be carried out.

ABA adopts resolution urging jurisdictions to repeal all felon disenfranchisement laws

I was pleased to see news of the American Bar Association passing a resolution calling for the repeal laws that disenfranchise persons based upon criminal conviction.  The full resolution is bold and broad and reads as follows:

RESOLVED, That the American Bar Association urges federal, state, local, territorial, and tribal governments to:

  a.  repeal laws that disenfranchise persons based upon criminal conviction;

  b.  restore voting rights to those currently and formerly incarcerated, including those on probation, parole, or any other community-based correctional program;

  c.  assure that no person convicted of crime is disenfranchised because of nonpayment of a fine, court costs, restitution or other financial obligations imposed as a result of a criminal conviction.

FURTHER RESOLVED, That the American Bar Association amends the Criminal Justice Standards on Collateral Sanctions and Discretionary Disqualification of Convicted Persons (3d Edition, 2004) as follows:

  Standards 19-2.6 Prohibited collateral sanctions Jurisdictions should not impose the following collateral sanctions: (a) deprivation of the right to vote.

"Making Sense of Risk"

The title of this post is the title of this new paper authored by Cecelia Klingele recently posted to SSRN.  Here is its abstract:

Although actuarial risk prediction tools are widely used in the American criminal justice system, the lawyers, judges, and correctional workers who consult these products in making decisions often misunderstand fundamental aspects of how they work and what information they provide.  This article suggests that the best way to ensure risk assessment tools are being used in ways that are just and equitable is to ensure that those who use them better understand three key aspects of what information they do — and do not — reveal.  Doing so requires clarifying what risk is being predicted, explaining what risk levels signify, and enumerating how risk-related information is and is not relevant to specific criminal justice decisions.

"'Con Air' Is Spreading COVID-19 All Over the US Prison System"

The title of this post is the title of this notable new article from VICE News and The Marshall Project. Here is an excerpt:

The U.S. Marshals Service is responsible for moving people into, out of, and among far-flung federal prisons, handling most long-distance transfers and newly sentenced prisoners. It doesn’t put people in quarantine or give them virus tests before transporting them around the country.  As a result, federal prisoners in Marshals custody are being shipped around the U.S. by plane, van, and bus with no way to know if they are carrying the virus, exposing other prisoners, staff, and possibly the public along the way.

According to whistleblower complaints obtained by VICE News and The Marshall Project, federal prisoners infected with the coronavirus have been shipped as far as Puerto Rico in recent weeks, and to federal lock-ups in Alabama and Florida.  Bureau of Prisons employees say prisoners have also tested positive after being shuffled around to facilities in Colorado, Illinois, Texas, Oklahoma, Pennsylvania, and Louisiana.

“It’s horrible,” said Anthony Koeppel, a local official with the staff union at Pollock. “It’s putting staff at risk, it’s putting inmates at risk, and it’s putting the community at risk. We’re talking about lives here. This is an extremely dangerous situation.”

The Marshals say they aren’t required to do any testing because “an agreement was made” that the Bureau of Prisons would handle tests and quarantines once prisoners are transferred into its lock-ups. The BOP did not respond to requests for comment.  A spokesperson for the Justice Department, which oversees both agencies, said they “have taken, and will continue to take, aggressive steps to protect the safety and security of all staff, inmates, visitors, and members of the public.”

Transferring prisoners who turn out to be sick has been a problem at prisons across the country.  In California, the San Quentin State Prison went from zero coronavirus infections in late May to more than 2,200 confirmed cases and 26 deaths in early August after prisoners were moved in from a known hotspot without being tested.

Staff and prisoners have blamed transfers for helping the coronavirus wreak havoc across the Bureau of Prisons, killing 111 prisoners and at least one staff member, and infecting over 10,000 prisoners and 1,200 workers in America’s largest network of prisons and jails. The agency officially halted most movement of prisoners in March in an effort to limit the spread of the virus; when it does transfer prisoners itself, it requires them to undergo coronavirus testing and a 14-day quarantine before and after being moved.

But the Marshals don’t abide by those rules — and they keep moving people.  While transfers have slowed — down 76% from April to July compared to the same period last year, according to the Marshals — they never truly stopped. That’s partly due to federal courts and law enforcement agencies pumping thousands of new people into the system.

Prez Trump finally announces full slate of (unlikely to be confirmed?) new nominees for the US Sentencing Commission

As many readers may know, the US Sentencing Commission has lacked a full slate of Commissioners for the entirety of Trump Administration.  With only two (of seven) Commissioners in place since the start of 2019, the USSC has lacked a quorum and thus cannot complete any formal work (including a lot of work that should and needs to be done in response the the FIRST STEP Act).  Part of the problem, as I have covered in this space, was that at least one of the four nominees that Prez Trump put forward back in March 2018 was of great concerns to a great many.

Against this backdrop, I was intrigued to see two months ago this NPR report (which was blogged here) about a new slate of potential nominees, more than a few of which were considered controversial for their perceived punitiveness.  At that time, I speculated that I was unsure if even an uncontroversial slate of USSC nominees could get confirmed by the US Senate in the run up to the November election (or in the lame-duck period thereafter).   Not having heard anything on this front for two more months, I was unsure if the Trump Administration was even going to try to fill these spots in 2020. 

But yesterday brought this White House announcement, titled "President Donald J. Trump Announces Intent to Nominate and Appoint Individuals to Key Administration Posts."

Today, President Donald J. Trump announced his intent to nominate the following individuals to key positions in his Administration:

Judge K. Michael Moore, of Florida, as Chairman of the United States Sentencing Commission.

Judge Michael Moore serves as the Chief Judge of the United States District Court for the Southern District of Florida, a post which he has held since 2014.   Judge Moore was appointed to the Southern District of Florida by President George H. W. Bush in 1992.  Before his appointment to the Federal bench, Judge Moore served as the Director of the United States Marshals Service and as the United States Attorney for the Northern District of Florida.  Judge Moore also spent over a decade of service as an Assistant United States Attorney.

Judge Claria Horn Boom, of Kentucky, as a Commissioner of the United States Sentencing Commission. 

Judge Claria Horn Boom serves as a United States District Judge for the Eastern and Western Districts of Kentucky.  Judge Boom was appointed to the Eastern and Western Districts of Kentucky in 2019 by President Donald  J. Trump.  Before her appointment to the Federal bench, Judge Boom served as an Assistant United States Attorney in the Eastern and Western Districts of Kentucky and was in private practice in Lexington, Kentucky and Atlanta, Georgia.

Judge Henry E. Hudson, of Virginia, as a Commissioner of the United States Sentencing Commission. 

Judge Henry Hudson serves as a Senior United States District Judge for the Eastern District of Virginia.  Judge Hudson was appointed to the United States District Court bench in 2002 by President George W. Bush.  Before his appointment to the Federal bench, Judge Hudson served as a Virginia Circuit Judge for Fairfax County, Director of the United States Marshals Service, as the United States Attorney for the Eastern District of Virginia, and as the Commonwealth’s Attorney for Arlington County, Virginia.

John G. Malcolm, of the District of Columbia, as a Commissioner of the United States Sentencing Commission. 

John Malcolm is Vice President for the Institute for Constitutional Government and the Director of the Meese Center for Legal & Judicial Studies at the Heritage Foundation.  Mr. Malcolm also serves as a Member of the Board of Directors of the Legal Services Corporation.  Mr. Malcolm previously served as the General Counsel at the United States Commission on International Religious Freedom, as a Deputy Assistant Attorney General in the Criminal Division of the Department of Justice, and as an Assistant United States Attorney for the Northern District of Georgia.

Judge Luis Felipe Restrepo, of Pennsylvania, as a Commissioner of the United States Sentencing Commission. 

Judge Phil Restrepo serves as a Circuit Judge of the United States Court of Appeals for the Third Circuit.  Judge Restrepo was appointed to the Third Circuit in 2016 by President Barack Obama.  Prior to his elevation to the Third Circuit, Judge Restrepo served as a United States District Judge for the Eastern District of Pennsylvania, a post to which he was also nominated by President Obama.  Prior to his service on the United States District Court, Judge Restrepo served for seven years as a United States Magistrate Judge, practiced privately, and served as an Assistant Federal Public Defender in the Eastern District of Pennsylvania.

Though I am always pleased to see the US Sentencing Commission getting some needed attention, I find this announcement puzzling and troublesome for various reasons.  For the most elemental of starters, the US Sentencing Commission is a judicial branch agency and not part of an executive administration.  Thus, I find it puzzling that this announcement speaks of Prez Trump's USSC nominations as involving "key positions in his Administration."  This is a small point, but I think a telling one, about both the importance and independence of the USSC (or lack thereof).

Next, I am troubled by the lack of diversity in these picks.  The NPR story a few months ago included a fitting quote on this front: "'The administration has put forth a slate that is all white, mostly male, and lacking in diverse experiences or backgrounds,' said Sakira Cook, director of the justice reform program at the Leadership Conference on Civil and Human Rights."  Moreover,  all but one of the new nominees are sitting federal judges when the two current USSC members are also both judges.  There is a remarkable irony here, I suppose, given that the GOP pushed during the Bush Administration to change the USSC's statutory charter so that instead of requiring at least three judges it allowed no more than three judges among the USSC's seven members (this composition requirement was changed back in later years).  Now, with Prez Trump as the head of the GOP, it seems he wants almost exclusively judges at the USSC. 

Last but not least, the USSC's statutory charter still states that "not more than four of the members of the Commission shall be members of the same political party."  These biographies suggest that four of these five nominees may be members of the GOP, even though there is already one GOP member on the USSC.  Of course, people can and do change party membership all the time for all sorts of reasons, but this political history still further aggravates my worry that this slate of nominees would not help create a diverse and balanced and dynamic US Sentencing Commission. 

Again, I am inclined to believe that it is unlikely for any slate of USSC nominees to get confirmed by the US Senate in 2020.  But now that it seems these nominations have been officially made, it would seem there is now a chance. 

Prior related posts:

• Prez Trump makes (tough) nominations to US Sentencing Commission 
• Lots of notable reaction to Prez Trump's nominations to the US Sentencing Commission
• Another round of criticisms of Prez Trump's decision to nominate Bill Otis to US Sentencing Commission 
• FAMM writes extended letter to Prez Trump to "strongly discourage" re-nomination of Bill Otis to US Sentencing Commission 
• With his return to blogging, is Bill Otis no longer a potential nominee for the US Sentencing Commission? 
• Notable new talk of (badly needed) new nominees for the US Sentencing Commission

UPDATE: A helpful exchange on Twitter allowed me to understand why these nominations are not quite a "full slate" for the USSC even though this slate has are five nominees and there are two current USSC members (Judges Charles Breyer and Danny Reeves).  I was told that current Commissioner Reeves will be leaving that role in October, so there will be one more open slot in a couple of months for another nominee.  And, consistent with the statutory need for "not more than four of the members of the Commission shall be members of the same political party," it would seem this nominee would need to be a Democrat.

Latest disconcerting COVID data concerning incarcerated people and corrections staff

The CSG Justice Center has this new and disheartening data update under the heading "New COVID-19 Cases in State Prisons Surge in July."  Here are the highlights (really lowlights) from the brief report:

As states grapple with the coronavirus pandemic, they are adopting different responses and seeing different outcomes. This has led to peaks and valleys in the number of new cases in each state since early April.

Cases inside state prison systems tell a similar story, but more dramatically. COVID-19 cases continue to rise among incarcerated people and corrections staff who live and work in state prisons, and the trajectory largely follows that of the general population. July, in particular, was marked by a sharp increase in new COVID-19 cases, especially among people who work in state correctional facilities.

Here are three takeaways from The Council of State Governments Justice Center’s latest analysis:

1. Various state-level shelter-in-place orders in April and May appeared to contain and curb the outbreak in state prisons for both incarcerated people and corrections staff; however, as these orders were lifted, new COVID-19 cases increased across the board.

2. While four times as many incarcerated people have contracted COVID-19 as compared with corrections staff, cases are growing fastest among corrections staff....

3. Between July 26 and August 9, the total number of reported COVID-19 cases among people incarcerated in state prisons grew by over 17,000.

"Blanket Exclusions, Animus, and the False Policies They Promote"

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

Saying something is true does not make it so. A nd saying it louder does not make it truer.  But such is the legislative posture behind modern day sex offense registration laws that punish those who commit sex crimes because of entrenched myths that overstate the laws’ positive impact on public safety and exaggerate recidivism rates of offenders.  And it is not only registration schemes themselves that have been scaffold-ed by these myths, but numerous ancillary laws that exclude benefits to offenders strictly because they have committed sex offenses.

Sadly, this sticky, but false, narrative has provided the animus that galvanized implementation of registration and notification regimes. And in its most recent chapter, the narrative has been formalized into blanket exclusions — or what this article calls “all except for” provisions — that have inserted into a myriad of criminal justice reform efforts without much notoriety.

The effect?  Registrants and their families have been prohibited from broad-based and important ameliorative changes to the carceral state, many to which they should be entitled, and to which they are denied only because of their status as registrants.  Indeed, within comprehensive legislation covering numerous crime and sentencing reforms, these ubiquitous blanket exclusions have the markings of boilerplate language that have been introduced even where the new legislation has no rational relationship to the protection of the public’s safety or the prior sex offense conviction.

This article examines the moral panic and false data used to buttress blanket exclusion provisions — their inflated importance obvious. It concludes that these measures, which are un-tethered to public safety concerns, and only supported by governmental and community animus, violate fourteenth amendment protections.

Am I crazy to think Joe Biden's pick of Senator Kamala Harris for his running mate bodes well for federal criminal justice reform?

As reported in this AP piece, headlined "Biden selects California Sen. Kamala Harris as running mate," Joe Biden has finally made his VP choice. And, perhaps unsurprisingly, my Twitter feed is already chock full of criminal justice reform advocates lamenting various aspects of Senator Harris's criminal justice reform record.  Though I understand the basis for these criticisms, I have been rooting for Harris to get the nod because I think she may have the greatest interest and greatest ability to help advance federal criminal justice reform of any of the folks Biden was seriously considering for the VP slot.

Though many had hoped she would be significantly more progressive while serving as California's Attorney General, Harris's track record and experience in that role will surely give her considerable insights and credibility on various issues if and whenever she gets a chance to advance reforms from the VP's office.  Moreover, since her time in the U.S. Senate, Harris has been quite vocal about the need for criminal justice reform and has likely built many relationships with Senators on both sides of the aisle that might enable her to play an important role in building bipartisan support for various reform initiatives.

Most fundamentally, I want to believe that Senator Harris is likely to be among those most likely to be seriously committed to making progress on criminal justice reform. Someone like Susan Rice would likely be most concerned with foreign affairs in the VP role, and someone like Elizabeth Warren would likely to be most concerned with economic issues.  Harris surely will be and will need to be concerned with lots of issues if she is elected as VP, but I have an inkling that she will really want to help advance some form of federal criminal justice reform early in her tenure.

Last but not least, I can think of at least one notable former California AG who ended up having an extraordinary impact on criminal justice reform (and lots more) after being picked for an important nation position.

Some prior posts on Kamala Harris:

• Senator Harris and Representative Jeffries write to AG Barr to express "concern about the process for transferring incarcerated individuals to home confinement" (from 2020)
• Senator Kamala Harris releases her plan "to fundamentally transform our criminal justice system" (from 2019)
• Senators Orrin Hatch and Kamala Harris write to AG Jeff Sessions to push for more medical marijuana research (from 2018)
• Five prominent congressional Democrats write in opposition to federal statutory prison reform without broader sentencing reform (from 2018)
• Senators Kamala Harris and Rand Paul make the case for bail reforms (from 2017)
• Interesting review of the (too cautious?) work of California's Attorney General (from 2014)

"Millennial Futures Are Bleak. Incarceration Is to Blame."

The title of this post is the headline of this interesting Atlantic commentary authored by Jill Filipovic. Here is how it starts:

The oldest Millennials turn 40 this year, and their prospects are not looking much brighter than when they were recession-battered 20-somethings.  Millennials, born from 1980 to 1996, are the best-educated generation in American history, and the most indebted for it.  They are the largest adult generation, at 22 percent of the U.S. population, and yet hold only 3 percent of the country’s wealth (when Boomers were young adults, they held 21 percent).  From 2009 to 2016, Millennial homeownership rates actually fell by 18 percent. A 2015 Census report found that 20 percent of Millennials live in poverty.

The list of answers to “How did Millennials get here?” is long, but one reason stands out: Millennials are the incarceration generation.  From cradle through childhood to parenthood and near middle age, Millennial lives have been shaped and stymied by policing and prisons.

In the single decade from 1980 to 1990, thanks in no small part to the War on Drugs, the number of people in U.S. prisons more than doubled.  It peaked in 2009, having exploded by 700 percent since 1972.  Although incarceration rates are now declining, they are not going down nearly as quickly as they went up.  Indeed, if the pace of decline continues, it will take close to a century for the number of people in prison to reach what it was in 1980.  Even a more modest goal, such as halving the number of current prisoners, wouldn’t be achieved until nearly all Millennials are in their graves.

No living generation has made it through the incarceration explosion unscathed. In 2009, nearly one in five prisoners was a Baby Boomer.  Millennial timing, however, was spectacularly bad.  Born as imprisonment rates were on their meteoric rise, they grew up in a country that was locking up their parents, then were locked up themselves as the number of children behind bars hit a record high, and entered adulthood in an age of still-high incarceration rates and punishments that last long after a person steps out of the cage.

Can someone send Prez candidate Kanye West the Booker ruling making the federal sentencing guidelines advisory?

The question in the title of this post is part of my reaction to seeing the criminal justice items appearing on this quirky 10-point platform coming from quirky presidential candidate Kanye West.  Though I am inclined to dismiss West's candidacy as a stunt, i believe he will be appearing on some state ballots.  And so here are two of his platform points addressing criminal justice concerns:

5. Reform the legal system to provide true justice, equitable for all citizens, regardless of race or ability to defend oneself in court.  Recognize the disparity in verdicts and prison sentences, caused by the lack of financial resources or legal assistance.

There will not be differing weights and differing measures.  Proverbs 20:10

6. Reform the approach to policing in a manner that treats all Americans the same, regardless of race, color, or ethnicity.  Refocus police forces on real crime.  Eliminate federal sentencing guidelines that tie the hands of judges, resulting in ridiculous sentences for the most minor offenses.

We will speak for those who cannot speak for themselves.  Proverbs 31:8

If the reference here to "federal sentencing guidelines" was instead to "federal mandatory minimum statutes" it would be accurate to lament how they can "tie the hands of judges, resulting in ridiculous sentences for the most minor offenses."  Recall, for example, the case of Edward Young serving a 15-year mandatory minimum Armed Career Criminal Act sentence for the crime of possessing seven shotgun shells in a drawer.  But, as most readers surely know, since the 2005 Booker ruling made the federal sentencing guidelines advisory, these guidelines no longer formally "tie the hands of judges" (though they certainly still influence lots of judges at sentencing).

"Prosecutors' Vital Role in Reforming Criminal Justice"

The title of this post is the headline of this recent Governing commentary authored by Lucy Lang.  Here are excerpts:

The nation's criminal-justice system is at a pivotal moment. With rising public revulsion at the brutality inflicted on Black Americans by law enforcement, racial-justice groups have brought conversations around racial disparities and the justice system into the mainstream.

Prosecutors have played a historic role in exacerbating these racial disparities, and they have an equally vital role to play in the systemic reforms that are needed to turn an unfair system around.  To ensure that reforms are set up to succeed, it is incumbent on modern prosecutors to collect as much relevant data as they can and analyze it to measure disparities and evaluate policies that seek to create a more-just system.  To that end, prosecutors will benefit from a careful review of a recently published report from the Council on Criminal Justice (CCJ) in seeking to divert more cases successfully out of the system.

Promisingly, this national study of data from 2000 to 2016 reveals a significant reduction in racial disparities across most facets of the criminal-justice system.  The numbers show that during that period crime declined and, consistent with public demand, so did arrests.  In addition to shrinking the system's impact overall, the CCJ report reflects that front-end policies designed to reduce arrests and divert cases from criminal prosecution early in the process also reduced differences in treatment across race.

Seeking to further these front-end decreases, a new set of materials from the Institute for Innovation in Prosecution and Criminal Law Practitioner about prosecutor-led diversion details data-collection processes in different district attorneys' offices and how data can inform diversion programs for low-level crimes....

A vital area for data analysis related to the potential for diversion programs for violent crime is the role that a charged person's criminal history should play in indictment, sentencing and release decisions.  A person who has prior convictions often faces ever-increasing penalties for new crimes, subject to the exercise of prosecutorial discretion.  A first-time arrest for a felony may result, for example, in the offer of a pre-indictment misdemeanor plea by the prosecutor, while a second or third felony arrest is more likely to result in an indictment.  At the pleading stage, someone with no prior convictions facing a felony indictment is more likely to avoid incarceration compared to a person with prior convictions.

This undermines the notion that once someone has done his or her time, they have repaid whatever debt to society the crime purportedly incurred.  Given the uneven application of the system across demographic categories, such practices may contribute to racially disparate sentence recommendations from prosecutors as well as disparate denials of release by parole boards.

Criminal-justice reformers face some hard questions. Chief among these are how to appropriately respond to crimes of violence and whether racial disparities might be reduced by removing the criminal history of a person charged with a crime as a substantial factor during sentencing. It is incumbent upon prosecutors to look carefully at their data and consider diversion options at each stage of their decision-making.

What should we make of a "significant decline" in white-collar criminal enforcement during the Trump Administration?

The question in the title of this post is prompted by this new Bloomberg article, headlined "Trump Oversees All-Time Low in White Collar Crime Enforcement," which I find puzzling in many ways.  Here are excerpts:

Donald Trump calls himself the “law and order” president, but when it comes to white collar crime, he has overseen a significant decline in enforcement.  The prosecution of securities fraud, antitrust violations and other such crimes has hit a record low as the pandemic slows the courts, according to one tracking service. But even before the coronavirus, the numbers were falling under the Trump administration.

The average annual number of white collar defendants was down 26% to 30% for Trump’s first three years in office from the average under President Barack Obama, according to data from the Justice Department and Syracuse University, respectively.  The trend also shows up in fines on corporations, which fell 76% from Obama’s last 20 months to Trump’s first 20 months, according to Duke University law professor Brandon Garrett. 

“Mr. Trump sets the tone,” said John Coffee, a professor at Columbia Law School whose new book, “Corporate Crime and Punishment: The Crisis of Underenforcement,” analyzes the decline.  Trump’s Justice Department has even presided over a plunge in deferred-prosecution agreements, Coffee said.  In a DPA, a company is charged with a crime but prosecutors agree to drop the case later if it admits wrongdoing, pays a penalty and makes required reforms.  The administration has also brought fewer white collar racketeering and money-laundering cases, crimes that carry harsher penalties, he said. “All that is an indication that white collar crime is not a priority,” Coffee said....

The Justice Department says it hasn’t eased up at all.  Prosecutors “continue to bring federal charges in white collar and other cases according to facts, the law and the principles of federal prosecution,” said Peter Carr, who was a spokesman for the department’s Criminal Division until moving recently to the Department of Homeland Security. The Department of Justice “can’t vouch for TRAC’s methodology,” Carr said, referring to Syracuse University’s Transactional Records Access Clearinghouse, which monitors trends in federal law enforcement and whose records reflect a decline of about 30% in prosecutions under Trump....

DOJ spokesman Matt Lloyd said the Criminal Division’s Fraud Section, which focuses on white collar crime, “has achieved record numbers of individual and corporate criminal cases and resolutions over the past three years,” including a 59% increase in individuals charged between 2016 and 2019 and a jump of more than a quarter in those convicted.  He didn’t comment specifically on the 26% decline reflected in the data published by the U.S. attorney offices nationwide, which cover a much larger set of white collar prosecutions, but called the Fraud Section’s achievements “a key indicator of the department’s commitment” to the issue.

Prosecutions have been declining for the past decade but have never been so low.  The Justice Department under Trump has shifted its focus from traditional white collar cases, like big securities prosecutions, to immigration and the sort of corporate espionage targeted by the DOJ’s China Initiative, said Robert Anello, a white collar defense lawyer in New York....

The Internal Revenue Service's ... Criminal Investigation division helps send people to prison for crimes such as tax evasion, money laundering and identity theft.  The agency saw a 36% decrease in new criminal investigations from fiscal 2015 to 2019, IRS records show.

One factor in the decline in traditional white collar prosecutions is an important change to what’s known as the Yates memo.  In 2015, under Obama, Deputy Attorney General Sally Yates required companies seeking leniency to help develop evidence against their employees and turn over possible suspects.  In 2018, under Trump, the Justice Department softened the criteria. 

So is there an on-going white-collar crime "crisis"?  How would we know?  Why is it that we now see a whole lot of media reporting increases in shootings in urban areas, but we do not see any media looking at possible increases in securities fraud in suburban areas?  I ask these questions not to be cheeky, but rather to note how much more we generally focus upon and tend to better understand "crime in the streets" rather than "crime in the suites."

A global look at pandemic-driving decarceration realities

Vice has this notable new piece headlined "COVID Has Reduced Prison Populations Around the World—Creating a Rare Chance to Fix the System."  The subheadline summaries its coverage: "The United States, United Kingdom, Australia and Europe have all reported significant decreases in prisoner numbers since the pandemic began.  Experts want it to stay that way." And here are excerpts:

A number of countries — including the United States, the United Kingdom and Australia — have reported major decreases in prisoner numbers as a result of pandemic-related factors such as reductions in crime, more leniency from authorities on bail applications, and tighter regulations around incarceration.  Legal experts have heralded the statistics as a cause for optimism, while at the same time warning that the numbers could rise again once societies return to some semblance of the old normal.  And many have therefore suggested that, if nothing else, the coronavirus pandemic could signal an opportunity for nations to rethink the way they operate their criminal justice systems.

These are the facts. Between March and June, more than 100,000 people were released from state and federal prisons in the United States—a decrease of 8 percent, according to a nationwide analysis by The Marshall Project and The Associated Press.  In the whole of 2019, that same prison population decreased by just 2.2 percent.

Between March and July, 4,435 people were released from prisons in England and Wales — a decrease of about five percent. Between March and June, France released some 14,000 inmates — a decrease of about 23 percent — and between February and May, Italy, one of the first countries to experience the devastation of the pandemic on a national scale, released some 7,850 inmates — a decrease of about 15 percent.

Australia, meanwhile, saw the adult prison population drop by almost 11 percent in the state of New South Wales between mid-March and mid-May, and almost 13 percent in the state of Victoria between the end of February and the end of June.  These are the two most populous states in the country, as well as the two worst-affected by COVID-19....

Taken altogether, these figures reveal that the global pandemic has, overall, led to a positive development in the way criminal justice systems operate around the world.  The disruptions caused by COVID-19 have meant less people being incarcerated and detained unnecessarily.  And experts are calling for it to stay that way.

“This is absolutely a chance for countries to rethink the way they run their justice system,” Professor Lorana Bartels, Program Leader of Criminology at the Australian National University, told Vice News via email. “It should compel renewed attention to addressing underlying factors that contribute to crime and reoffending, including insecure housing, mental health (in particular, trauma), substance abuse, education, and employment.

“Especially as economies struggle, finding equally effective but much cheaper alternatives to prison will be imperative.”...

“This is a positive development,” said Professor Bartels. “There is no clear link between imprisonment rates and crime rates, and these decreases are a reminder that an inexorable rise in our use of imprisonment is neither beneficial, nor inevitable… there are better (and cheaper) ways of approaching criminal justice issues.”

"Supervised Release Is Not Parole"

The title of this post is the title of this notable new paper authored by Jacob Schuman just posted to SSRN. Here is its abstract:

The United States has the largest prison population in the developed world.  Yet outside prisons, there are almost twice as many people serving terms of criminal supervision in the community — probation, parole, and supervised release.  At the federal level, this “mass supervision” of convicted offenders began with the Sentencing Reform Act of 1984, which abolished parole and created a harsher and more expansive system called supervised release.  Last term in United States v. Haymond, the Supreme Court took a small step against mass supervision by striking down one provision of the supervised release statute as violating the right to a jury trial.  But the Justices did not consider all the differences between parole and supervised release, which have far broader consequences for the constitutional law of community supervision.

The current consensus among the courts of appeals is that supervised release is “constitutionally indistinguishable” from parole and therefore governed by the same minimal standard of due process.  Closer inspection, however, reveals three significant differences between parole and supervised release.  First, parole was a relief from punishment, while supervised release is an additional penalty. Second, parole revocation was rehabilitative, while supervised release revocation is punitive.  Finally, parole was run by an agency, while supervised release is controlled by courts.  Because of these differences, revocation of supervised release should be governed by a higher standard of due process than revocation of parole.  In particular, defendants on supervised release deserve more protection against delayed revocation hearings, which may deny them the opportunity to seek concurrent sentencing.

Oregon drug decriminalization initiative would produce "significant reductions in racial/ethnic disparities" according to state commission

As reported in this local press piece, headlined "Oregon Criminal Justice Commission: Initiative Petition 44 Will Nearly Eliminate Racial Disparities for Drug Arrests, Convictions," a notable state commission has reported that a notable state ballot initiative will have a notable impact on equity in the criminal justice system. Here are the basics from the press piece:

Racial disparities in drug arrests will drop by 95% if Oregon voters pass a drug treatment and decriminalization measure in November.  That’s according to a new, independent government research report written by the Oregon Criminal Justice Commission.  Oregon voters will see a summary of the report in the voter pamphlet that the Oregon Secretary of State mails to every registered Oregon voter in November.

In addition to a reduction in arrest disparities, conviction disparities would be “narrowed substantially” if Initiative Petition 44 passes, the report said, and overall convictions would fall.  For example, convictions of Black and Indigenous Oregonians would drop by 94%....

The analysis by the Oregon Criminal Justice Commission is the first one ever prepared for a ballot measure.  Lawmakers have had the ability to ask for such an analysis since 2014 and did this year after being urged to do so by the More Treatment campaign, which supports Initiative Petition 44....

Initiative Petition 44, which will soon get a ballot measure number, changes Oregon’s approach to drugs.  The initiative would expand access around the state to drug addiction treatment and recovery services, paid for with a portion of taxes from legal marijuana sales. In addition, the measure decriminalizes low-level drug possession.  It does not legalize drugs.

About 8,900 Oregonians are arrested every year in cases where simple drug possession is the most serious offense, according to the latest numbers from the Oregon Criminal Justice Commission.  That’s the equivalent of about one arrest an hour.  Black and Indigenous Oregonians are disproportionately targeted....

In addition to decriminalizing drug possession, Initiative Petition 44 would specifically provide funding for treatment, peer support, housing, and harm reduction. Marijuana tax revenue that’s in excess of $45 million a year would help pay for it.  Oregon expects to collect roughly $284.2 million in marijuana tax revenue during the 2021-2023 biennium, or roughly $140 million a year.

Initiative Petition 44 has received more than 70 endorsements from organizations across the state, including the Coalition of Communities of Color, NAACP Portland, Eugene-Springfield NAACP, Unite Oregon, Central City Concern, the Confederated Tribes of Grand Ronde and more.  The MoreTreatment campaign to pass Initiative Petition 44 does not face any organized opposition.

The full seven-page analysis by the Oregon Criminal Sentencing Commission is available at this link, and here is part of the conclusion:

Overall, if IP 44 were to pass, the Oregon Criminal Justice Commission estimates that approximately 1,800 fewer Oregonians per year would be convicted of felony PCS [possession of controlled substances]  and nearly 1,900 fewer Oregonians per year would be convicted of misdemeanor PCS.  Prior research suggests this drop in convictions will result in fewer collateral consequences stemming from criminal justice system involvement (Ewald and Uggen, 2012), which include the reduced ability to find employment, reduced access to housing, restrictions on the receipt of student loans, inability to obtain professional licensure, and others.

The CJC estimates that IP 44 will likely lead to significant reductions in racial/ethnic disparities in both convictions and arrests....

Similarly, it is estimated that disparities in arrests for PCS would fall as well. If arrests follow the same trends as were estimated for convictions, then the overall number of PCS arrests would fall from just over 6,700 to 615. In this case, the significant overrepresentation of Black Oregonians as measured by the RDR among those arrested for PCS would fall substantially, being reduced by nearly 95 percent. In addition, Native American Oregonians would go from being overrepresented, to underrepresented compared to white individuals.