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August 29, 2020

"Does Prison Work? A Comparative Analysis of Contemporary Prison Systems in England and Wales and Finland, 2000 to Present"

The title of this post is the title of this recent paper now available via SSRN and authored by Joseph Hale. Here is its abstract:

The prison systems in Scandinavian countries have become regarded by many as some of the best in the world, with low incarceration and recidivism rates.  Conversely, riots, overcrowding, inadequate staffing numbers, and high recidivism rates surround the prison system in England and Wales; such failures raise questions on what the role of prison in society is: the prevention and reduction of crime or, the social control and marginalisation of the most vulnerable members in our community?

By focusing on the prison systems in both England and Wales and Finland, this article will argue 1) that prison system in England and Wales has in recent years developed in becoming more focused towards rehabilitation but, still faces numerous challenges including working within predominantly Victorian-era carceral spaces, limited funding, lack of vocational training opportunities and the perception within a significant sector of the public that they have become ‘holiday camps’. 2) The Finnish prison system appears to encompass much higher regard for both prisoners’ welfare and a greater emphasis on rehabilitation building upon changes throughout the twentieth and twenty-first centuries. 3) By addressing stigmas and ensuring that opportunities are actively encourage and made more available, the English system, like Finland, could become a world-leading example; reducing recidivism and incarceration rates, and demonstrating that prison can work.

August 29, 2020 in Prisons and prisoners, Sentencing around the world | Permalink | Comments (0)

August 28, 2020

Has anyone sentenced to life without parole ever before been granted a full Prez pardon?

Earlier today, I asked in this post "Has anyone sentenced to life without parole ever before spoken on final night of major political convention?".  I was referencing, of course, Alice Marie Johnson having the chance to tell her story during the final night of the Republican National Convention. 

But now, as this post title highlights, I have a new, update question about Ms. Johnson based on this news as reported by Politico:  "President Donald Trump on Friday granted a full pardon to Alice Marie Johnson — the 65-year-old Memphis woman whose life sentence he commuted two years ago — just hours after Johnson spoke on behalf of Trump’s reelection campaign during the Republican National Convention."  Here is more:

Johnson was serving life in prison for a nonviolent drug offense when Trump commuted her sentence in June 2018 at the urging of reality TV star Kim Kardashian West, who visited the White House to advocate for Johnson’s release.

On Thursday, during the final night of Republicans’ nominating convention, Johnson delivered a primetime speech testifying to Trump’s “compassion” and commending the administration’s work to advance criminal justice reform legislation. “My transformation was described as extraordinary,” she said. “Truth is, there are thousands of people just like me who deserve the opportunity to come home.”

In an interview later Friday on CNN, Johnson said she “had no idea” Trump would grant her a pardon during their White House meeting.

August 28, 2020 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Federal government completes its fifth execution of 2020

As reported in this AP article, a "Kansas girl’s killer Friday became the fifth federal inmate put to death this year, an execution that went forward only after a higher court tossed a ruling that would have required the government to get a prescription for the drug used to kill him." Here is more:

Questions about whether the drug pentobarbital causes pain prior to death had been a focus of appeals for Keith Nelson, 45, the second inmate executed this week in the Trump administration’s resumption of federal executions this summer after a 17-year hiatus.

Nelson, who displayed no outward signs of pain or distress during the execution, was pronounced dead at a federal prison in Terre Haute, Indiana, at 4:32 p.m. EDT — about nine minutes after the execution began.

There was silence from Nelson when a prison official looming over him asked if he had any last words to witnesses behind the execution-chamber glass. Those observers included the mother of 10-year-old Pamela Butler. who Nelson raped and strangled with a wire 21 years ago. Nelson didn’t utter a word, grunt or shake his head no. After the official waited for about 15 seconds, his eyes fixed on Nelson waiting in vain for any sign of an answer, he turned away and began the execution procedure....

The relative stillness and quiet was a contrast to the scene on on Oct. 12, 1999, as Nelson grabbed Pamela off the street and threw her into his truck. As Pamela screamed, one of her sisters who saw her abducted began screaming, too. Pamela had been returning to her Kansas City, Kansas, home on inline skates after buying cookies. As he drove off with her, he made a rude gesture to her sister as she screamed. He later raped the fifth-grader and strangled her with a wire.

Pamela’s mom, Cherri West, said she didn’t expect Nelson to express remorse. She said, if anything, she thought he might curse at her and her family as he had done during criminal proceedings. “I wasn’t expecting him to say anything because he never had no remorse,” she said. “I have no remorse for him.”...

A flurry of filings by Nelson’s legal team over several weeks zeroed in on pentobarbital, which depresses the central nervous system and, in high doses, eventually stops the heart. In one filing in early August, Nelson’s attorneys cited an unofficial autopsy on one inmate executed last month, William Purkey, saying it indicated evidence of pulmonary edema in which the lungs fill with fluid and causes a painful sensation akin to drowning.

The federal government has defended the use of pentobarbital, disputing that Purkey’s autopsy proved he suffered. They have also cited Supreme Court ruling precedent that an execution method isn’t necessarily cruel and unusual just because it causes some pain.

In her overturned ruling, U.S. District Judge Tanya Chutkan halted Nelson’s execution early Thursday, saying laws regulating drugs require the prescriptions, even for executions. Within hours, an appellate panel tossed her ruling....

With the execution Wednesday of Lezmond Mitchell — the only Native American on federal death row — the federal government under President Donald Trump registered more executions in 2020 than it had in the previous 56 years combined.

August 28, 2020 in Death Penalty Reforms | Permalink | Comments (1)

Has anyone sentenced to life without parole ever before spoken on final night of major political convention?

The question in the title of this post is prompted, of course, by Alice Marie Johnson having the chance to tell her story during the final night of the Republican National Convention.  I was on the road, so I missed the speech live, but PBS has it available via YouTube at this link.  And here is a round-up of just some media coverage of what seems like a historic speech:

Via BuzzFeed News, "Alice Johnson, Whose Sentence Was Commuted By Trump, Gave An Uplifting Speech About Criminal Justice Reform At The RNC"

Via CNN, "Alice Johnson shares powerful redemption story at RNC"

From The Hill, "Alice Johnson praises Trump for First Step Act, urges compassion for 'forgotten faces'"

Via Yahoo Entertainment, "Former Inmate Alice Johnson, Championed by Kim Kardashian & Freed by Trump, Urges More Change at RNC"

I am often quite discouraged these days about both the state of our nation and the state of our politics.  But here is hoping that we can all find some joy and inspiration in this one story to keep moving (and move faster) on badly needed reform to all our criminal justice systems in incarceration nation.

August 28, 2020 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Trump’s failed promise of criminal justice reform gives Biden an opening"

The title of this post is the headline of this new Washington Post commentary authored by Mark Osler.  Here is an excerpt:

As a lifelong Democrat, I found myself in a very unexpected place on Sept. 5, 2018: sitting next to Jared Kushner in the Roosevelt Room of the White House. Ivanka Trump was at the other end of the table, and Kim Kardashian West sat across from me. This was not my normal crowd.
Kushner had called the meeting to discuss reform of the broken federal clemency system, which allows the president to shorten a sentence or mitigate a conviction. New York University professor Rachel Barkow and I had been asked to explain what was wrong and how to fix it.  It’s a short, sad story: The system for evaluating clemency petitions is mired in the bureaucracy and internal conflicts of the Justice Department. As a result, the mercy intended by the Constitution has been in short supply for three decades.
Barkow and I opened the meeting by laying out the problems and offering a solution: the creation of an independent board to evaluate clemency petitions and make recommendations to the president. There was a quick consensus around the table that change was needed. I felt hopeful, largely because we seemed to have Kushner on our side. He was engaged and motivated; the experience of having a parent incarcerated had given him insight into the broader problems we described. Furthermore, the usual institutional opponent to criminal justice reform in any administration — the Justice Department — was out of the way due to the president’s ongoing dispute with then-Attorney General Jeff Sessions....

The Trump administration never did reform the clemency process.  Instead of issuing an executive order to create a formal, bipartisan board, Trump chose to assemble a small team of insiders to funnel cases to him.  The primary recipients of his pardon power have been his personal friends and some right-wing celebrities.  Today more than 13,000 federal clemency petitions sit awaiting action — and Trump pays so little attention to them that he hasn’t even bothered to deny any cases in more than two years.

The First Step Act was not followed by a second or third step, and reform’s fate was sealed when Barr became attorney general. Unlike Sessions, Barr won Trump’s trust, and with that came the return of the Justice Department’s veto power over policy issues. Barr and Trump march to the same “law and order” rhythm — a path inconsistent with any real progressive changes. Of course, Trump has continued to take credit as a criminal justice reformer, long after he stopped reforming anything and headed off in the opposite direction.

Democratic nominee Joe Biden has a political opening here, if he chooses to use it. Back in the 1980s and ’90s he, too, thumped the table for law and order; but he can legitimately claim to have changed his mind and moved away from the dark shadow of senseless retribution and over-incarceration.

More importantly, Biden has a humanity about him that Trump cannot conjure, and that is a plus when the discussion comes to human frailty and punishment in the shadow of George Floyd’s death. Unlike Trump, Biden has the ability to credibly admit his mistakes, commit to implementing specific reforms, and then make those changes once in office. Such honesty, humility and resolve would be a welcome change from the slow, sad slide we have seen since that hopeful day in the Roosevelt Room.

August 28, 2020 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

August 27, 2020

An effective (and only partial) look at complicated criminal justice records of Trump and Biden

Newsweek has this effective new piece headlined "Trump and Biden Both Have Complicated Records on Criminal Justice Reform," and here are excerpts:

Despite billing themselves as the best bet voters have for criminal justice reform, neither former Vice President Joe Biden nor President Donald Trump has a strong record to fall back on.

The Republican National Convention kicked off on Monday with Senator Tim Scott and Georgia state Representative Vernon Jones, a Democrat, lauding Trump for the First Step Act, a criminal justice reform bill the president signed in 2018. Trump — who pardoned on Tuesday night Jon Ponder, a former bank robber who started a nonprofit in 2010 to help formerly incarcerated individuals — and other speakers contrasted that accomplishment with Biden's involvement in tough-on-crime legislation....

A bipartisan bill, the First Step Act resulted in the release of 3,100 people from prison in July 2019 as part of the act's "good time credit fix," and an additional 3,000 people were resentenced to shorter prison terms, according to the Brennan Center for Justice.  It's an aspect of the Trump administration's legacy that some experts say should be praised, but it's all Trump has to point to in terms of criminal justice reform legislation.

"Yes, he signed and supported an important piece of legislation, but that seems to be where the story ends," Kara Gotsch, director of strategic initiatives at the Sentencing Project, told Newsweek. "I think a lot of people in my community, after the commutation of Alice Johnson, hoped that it would lead to significant numbers of commutations."

Trump granted Johnson clemency in June 2018 after she served 21 years in prison for a first-time nonviolent drug offense. Two years later, he commuted the sentences of Crystal Munoz, Tynice Hall and Judith Negron, three women who served prison time with Johnson, and on Thursday, she's expected to speak at the GOP convention.

For all the lambasting of Biden's criminal justice record and praise of the First Step Act, Trump's also taken a hard stance in favor of law enforcement, labeled protesters "anarchists" and characterized himself as a "law and order" president. Trump also pushed for the death penalty for the Central Park Five, a group of young men wrongly convicted of a 1989 murder. He supported the same punishment for drug dealers just three months after signing the First Step Act, making it unclear where he truly stands on criminal justice reform....

Trump's sending "mixed signals" to different audiences with regard to criminal justice reform, according to Rachel Barkow, author of Prisoners of Politics: Breaking the Cycle of Mass Incarceration.  While Biden isn't her "dream candidate," he's the "more promising" option, in her opinion, because both his and vice presidential nominee Kamala Harris' recent actions indicate they'll be supportive of such reform. Harris' "trajectory is going in the right direction, and Biden at least is claiming that he is going to support more criminal justice reform efforts," Barkow said.

In the 1980s and 1990s, Biden sponsored and supported laws that created mandatory minimum sentences for certain drug-related crimes and increased funding for states to build prisons.  Two laws, the 1986 Anti-Drug Abuse Act and the 1994 Violent Crime Control and Law Enforcement Act, have gotten the bulk of the attention for the disproportionate impacts on the African American community....

Biden has called his role in passing tough-on-crime legislation a "big mistake," and in June he said concerns about the 1994 crime bill were "legitimate" during a virtual NAACP forum.  But he said people should base their opinion on his current actions and comments. Biden's plan if elected includes increased rehabilitation for formerly incarcerated people, creating a $20 billion grant program for states that eliminate mandatory minimums for nonviolent crimes, decriminalizing the use of marijuana and eliminating sentencing disparities between crack and powder cocaine....

Barkow said she hopes if Biden wins, he appoints a new crop of U.S. attorneys and that people who are appointed to sentencing commissions and federal judgeships are from the public defense and civil liberties sector, because bringing that side of the system into the fold is likely to result in better criminal justice reform.... Although she is confident Biden would be more in favor of criminal justice reform than Trump, Barkow said if Biden doesn't take responsibility for the mistakes he's made in the past and commit to using his clemency powers, it will show there were "no lessons learned."

There is so much more to the criminal justice records of both these men, this story only really scratches the surface (though does so well). I am hopeful that these topics get significant attention in the upcoming debates, in part to get both candidates on the record promising to do more in this arena.

August 27, 2020 in Campaign 2020 and sentencing issues, Who Sentences | Permalink | Comments (0)

"The Scale of the COVID-19-Related Jail Population Decline"

The title of this post is the title of this new short "evidence brief" from the Vera Institute.  Here is its summary:

From mid-March to mid-April 2020 — the first month of rapid spread of COVID-19 in the United States — there was an unprecedented reduction in the number of people held in local jails.  Analysis conducted by the Vera Institute of Justice (Vera) of the most comprehensive jail data available shows that the number of people in jail in the United States fell by one quarter, mainly over the course of that month.  Jail bookings dropped as people who would otherwise have been arrested stayed home, and police and sheriffs made fewer arrests they deemed unnecessary.

Simultaneously, many judges and prosecutors used their broad discretion to facilitate the release of people they deemed safe, while public defenders filed thousands of motions to secure the release of their clients.  Although some highly visible judges and prosecutors continued to stand in the way of decarceration — even while the deadly virus spread quickly through jails and prisons — the overall impact was a rapid reduction in the sizable population of jailed people whose incarceration had no clear public safety rationale.

But as the United States faces continued outbreaks of COVID-19, it is crucial to recognize that decarceration has still been inadequate, from both a public safety and a public health perspective.  Future COVID-19 responsive policies should focus on facilitating the release of much broader categories of people and avoiding arrests and bookings that would refill jails.  In the immediate term, further reducing jail populations would help to slow or stop the continued spread of the virus inside and outside jail facilities, and it could also help reduce correctional spending as state and local budgets shrink.  In the long-term, this could enable an enduring shift of resources away from law enforcement and punishment and toward public services and responses. Such a policy approach would move the country toward ending both mass incarceration and the social and economic harms it inflicts on poor, Black, and brown communities.

August 27, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Bureau of Justice Statistics releases report on "Correctional Populations in the United States, 2017-2018"

Though I am sad that data in reports from the Bureau of Justice Statistics is often a bit dated, I am always grateful for the work BJS does to assemble and detail criminal justice data. And I am especially pleased to see this latest BJS report, titled "Correctional Populations in the United States, 2017-2018," in part because it details the continued decline in correctional populations for now more than a decade (which I certainly believe has continued into 2019 and 2020). This BJS webpage provides this context and highlights:

This report is the 23rd in a series that began in 1985. It provides statistics on populations supervised by adult correctional systems in the United States, including persons held in prisons or jails and those supervised in the community on probation or parole. It provides statistics on the size of the correctional populations at year-end 2017 and year-end 2018, and changes in populations over time.

Highlights:

  • The adult correctional-supervision rate (adults supervised per 100,000 adult U.S. residents) decreased 21% from 2008 to 2018, from 3,160 to 2,510 per 100,000 adult U.S. residents.
  • The percentage of adult U.S. residents under correctional supervision was lower in 2018 than at any time since 1992.
  • The adult incarceration rate (adults in prison or jail per 100,000 adult U.S. residents) has declined every year since 2008, and the rate in 2018 was the lowest since 1996.
  • The portion of adult U.S. residents in prison or jails fell 17% from 2008 to 2018.
  • The correctional population declined 2.1% from 2017 to 2018, due to decreases in both the community-supervision (down 2.4%) and incarcerated (down 1.4%) populations.

August 27, 2020 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (1)

August 26, 2020

Native American death sentence carried out as feds complete record-setting fourth execution of 2020

As reported in this AP piece, the "only Native American on federal death row was put to death Wednesday, despite objections from many Navajo leaders who had urged President Donald Trump to halt the execution on the grounds it would violate tribal culture and sovereignty." Here is more:

With the execution of Lezmond Mitchell for the grisly slayings of a 9-year-old and her grandmother, the federal government under the pro-death penalty president has now carried out more executions in 2020 than it had in the previous 56 years combined....

Mitchell, 38, and an accomplice were convicted of killing Tiffany Lee and 63-year-old Alyce Slim after the grandmother offered them a lift as they hitchhiked on the Navajo Nation in 2001.  They stabbed Slim 33 times, slit Tiffany’s throat and stoned her to death. They later mutilated both bodies.

A bid by tribal leaders to persuade Trump to commute Mitchell’s sentence to life in prison failed, as did last-minute appeals by his lawyers for a stay.  The first three federal executions in 17 years went ahead in July after similar legal maneuvers failed. Keith Nelson, who was also convicted of killing a child, is slated to die Friday.

“Nearly 19 years after Lezmond Mitchell brutally ended the lives of two people, destroying the lives of many others, justice finally has been served,” Justice Department spokesperson Kerri Kupec said in a statement....

Death-penalty advocates say the Trump administration’s restart of executions is bringing justice — too long delayed — to victims and families.  There are currently 58 men and one woman on federal death row, many of whose executions have been pending for over 20 years....

Prior to this year, the federal government had carried out just three executions since 1963, all of them between 2001 and 2003, according to the Washington, D.C.-based Death Penalty Information Center. Oklahoma City bomber Timothy McVeigh was among them.

The first of the resumed executions was of former white supremacist Daniel Lewis Lee on July 14.  Two others, Wesley Purkey and Dustin Honken, were executed later the same week. The victims of all three also included children.  The executions of Christopher Andre Vialva and William Emmett LeCroy are scheduled for late September.

August 26, 2020 in Death Penalty Reforms, Who Sentences | Permalink | Comments (2)

"Criminal Law Update: A Survey of State Law Changes in 2019"

The title of this post is the title of this notable publication from The Federal Society authored by Robert Alt.  Here is how it gets started:

In 2019, state legislatures across the country modified rules and procedures related to every part of the criminal justice system, from pretrial detention to post-sentence re-entry.  States passed new legislation and amended their criminal codes addressing a range of criminal justice concerns.  A review of the legal landscape shows that states were most willing to adjust their criminal laws related to sentencing, record expungement and offender registries, marijuana legalization, and felon reenfranchisement.  This paper is not intended to serve as an exhaustive list of new criminal justice legislation in 2019, but rather highlights the most common reforms that fall generally among those categories.

As in 2018, criminal justice laws enacted in 2019 did not take a singular approach.  Some states, for example, significantly enhanced penalties for certain offenses, while others reduced sentences and repealed mandatory minimums.  Alaska adopted comprehensive criminal justice legislation that included repealing “catch and release” pretrial protocols, even as New York all but ended its pretrial detention and cash bail system.  Three states revised rules for offender release and re-entry, and two states continued the national trend of restricting civil asset forfeiture and making the process more transparent.  A handful of states amended their treatment of juvenile offenders, and several more stopped suspending driver’s licenses for unpaid fines and court costs.

Support for and opposition to criminal laws and punishments do not tend to break along traditional partisan lines. Although some legislative reforms proved to be politically contentious, including New York’s bail reform and Florida’s new re-enfranchisement requirements, others were largely bipartisan efforts wherein legislatures and governors from both ends of the political spectrum reached tenable compromises. Some legislatures even passed measures unanimously.

August 26, 2020 in Offense Characteristics, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Highlighting disorder under an administration trying to lay claim to "law and order"

Miriam Aroni Krinsky and Roy L. Austin, Jr. have this notable new Hill commentary headlined "Bad law and failed order." I recommend the piece in full, and here are excerpts:

As the Republican National Convention plays out this week, a public service warning to all Americans: Don’t buy the hype you are hearing when it comes to crime in America....

First, we must level-set.  More than 178, 000 people in the United States have died from COVID-19 in the last nine months, and that number is likely an undercount.  On the other hand, in 2018, the last full year of available data, there were 16,214 homicides in the U.S. — less than 10 percent of the deaths from a virus this president has largely ignored.  In fact, homicide is not even in the top 10 causes of death in America....

The average number of annual homicides under President Obama (15,177) was more than 1,000 fewer than under President Trump (16,754).  At the same time, Trump has overseen a dramatic increase in hate crime.  In Trump’s two years for which data is available, there were 7,175 and 7,120 hate crimes — significantly more than in any year that President Obama was in office.  And police officers have statistically been no safer from felonious death under Trump (50 per year) than under Obama (51).

This administration’s hypocrisy over local rule must also be examined.  President Trump, Attorney General William Barr and their allies regularly attack reform-minded prosecutors and encourage federal intervention.  But these local prosecutors were elected by their communities explicitly because of their commitment to reform the system.  Yet, when it comes to COVID-19, where federal leadership is critical, this administration hypocritically insists on deferring to local rule....

What these reform-minded prosecutors understand is that past “tough on crime” practices didn’t work.  For more than two decades, regardless of what party has held the presidency, homicide numbers have remained at historic lows. Despite annual state and local law enforcement and corrections spending of close to $200 billion, the homicide rate has barely moved and the clearance rate for homicides and other crimes remains pathetically low. The number of people law enforcement officers annually kill — more than 1,000 — also remains stubbornly consistent.

Despite the Trump administration’s attempt to spread fear among suburban voters, we know that we can significantly reduce the footprint of law enforcement while also enhancing community safety and constitutional policing.  In New York City, there were 685,724 police stops in 2011.  From 2014 through 2017, that number was below 50,000, and the number of homicides and violent crimes trended down significantly throughout that period.

While under a federal consent decree, New Orleans had its lowest homicide numbers in decades. While it is too early to determine whether we are seeing any significant uptick in violent crime, the economic consequences of Trump’s failed COVID-19 response, his refusal to address the proliferation of firearms and his encouragement of police violence would be the most likely causes.

Those fighting for dramatic changes to our criminal system recognize that, to truly enhance public safety, we must address underlying societal problems and fortify community trust.  We must treat substance use disorder as the public health issue that it is.  We must ensure people have jobs paying decent wages.  We must reduce homelessness and provide quality, affordable housing.  We must be smarter about education spending and eliminate school police who propel Black and Brown kids into the justice system.  We must stop the disparate searches, arrests, detention, use of force and incarceration of people of color.  And we must not ignore racism in all systems, because only when there is equality and justice will there be safety.

August 26, 2020 in Campaign 2020 and sentencing issues, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (0)

"Reflections on the Warren Court's Criminal Justice Legacy, Fifty Years Later: What the Wings of a Butterfly and a Yiddish Proverb Teach Me"

The title of this post is the title of this new paper authored by my colleague Joshua Dressler which is available via SSRN.  Here is its abstract:

I reflect on the criminal justice legacy of the Warren Court, which ended approximately a half-century ago. I ask: How much of the law and values that Earl Warren and his colleagues transmitted to us remain a part of our constitutional fabric today?  Put more bluntly, was the Warren Court successful or a failure in meeting its criminal justice goals?

As I see it, the goal of Earl Warren and his most progressive colleagues during his 15+ years on the high court was to reshape the criminal justice system by placing restrictions on those with the greatest power, primarily the police and prosecutors, and by providing greater rights to the rest of us (particularly the most vulnerable amongst us) when we are confronted by the awesome power of government in our homes, streets, police stations, and courts.

If those were, indeed, the amorphously described criminal justice goals of the Warren Court, and if we are evaluating it by looking at where we are today in regard to those goals, I am forced to conclude that the Warren Court was to a significant extent a failure.  And yet, as the title of this article hopefully suggests, there may be another way to look at the Warren Court’s efforts.  Indeed, I will ultimately conclude that, at least for civil libertarians, we owe a debt to Earl Warren and his Court.

August 26, 2020 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Without any dissents, SCOTUS rejects legal claims of Native American scheduled for federal execution today

As reported here by Amy Howe at SCOTUSblog, the "Supreme Court on Tuesday night declined to block the execution, scheduled for Wednesday, of Lezmond Mitchell, the only Native American on federal death row."   Here is more, with links to orders:

The justices, without any noted dissents, denied two emergency requests from Mitchell seeking to postpone the execution.  Mitchell had argued that he should be given the opportunity to interview his jurors about potential bias during deliberations and that the government’s planned lethal-injection protocol violates federal law.

If the execution goes forward, Mitchell will be the fourth federal inmate executed this year after nearly two decades in which the federal government did not carry out the death penalty.  Three additional federal executions are scheduled before the end of September.

Mitchell, a Navajo man, was convicted and sentenced to death in 2003 for the carjacking and stabbing deaths of Alyce Slim and her nine-year-old granddaughter, who were also members of the Navajo Nation.  At Mitchell’s trial, prosecutors told jurors – all but one of whom were white – that, in the Old West, Mitchell “would have been taken out back” and “strung up.”...

Mitchell came to the Supreme Court last week, asking the justices to block his execution and take up the question of whether, in death penalty cases, district courts can bar inmates from interviewing jurors about racial bias during deliberations....

Mitchell filed a separate request on Sunday to block his execution to give the justices time to weigh in on a dispute over the interpretation of the Federal Death Penalty Act, which requires the federal government to carry out executions “in the manner prescribed by the law of the state in which the sentence is imposed.”...

In two orders on Tuesday night, the Supreme Court rejected both of Mitchell’s requests.  No justices publicly dissented, but Justice Sonia Sotomayor attached a short statement arguing that the court should soon resolve the dispute in the lower courts over how to interpret the Federal Death Penalty Act.  Mitchell’s case was not the right vehicle for the court to resolve that dispute, Sotomayor wrote, because the 9th Circuit assumed an interpretation that was favorable to Mitchell but still denied him relief. “But with additional federal executions scheduled in the coming months, the importance of clarifying the FDPA’s meaning remains,” Sotomayor continued. “I believe that this Court should address this issue in an appropriate case.”

A few of many recent prior related posts:

August 26, 2020 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

August 25, 2020

Two great new pieces providing perspectives on prosecutorial perspectives

Two great new press pieces from major outlets provide a great window into the work and thinking of modern prosecutors.  Here are links with headlines and subheadlines:

From the New York Times, "Can Prosecutors Be Taught to Avoid Jail Sentences?: At least 60 district attorneys have come to see incarceration as destructive, racist, expensive and ineffective. But can they persuade their own staffs?"

From Politico, "‘Prosecutors Are Not Exempt from Criticism’: Five Black, female prosecutors offer 11 ideas for how to make their profession part of the solution."

August 25, 2020 in Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Prez Trump grants pardon to Jon Ponder just before his RNC convention speech

As reported in this Fox News piece, "President Trump on Tuesday announced a pardon of Jon Ponder ahead of the convicted bank robber's appearance at the Republican National Convention on Tuesday night."  Here is more:

Ponder, who founded the nonprofit Hope For Prisoners, will be speaking at the convention, along with Richard Beasley, the FBI agent who arrested him, Fox News is told.

Ahead of the appearance, the president announced the pardon in a video.

Here is a link to the video announcing the pardon and providing more background on Jon Ponder, and this JustLeadershipUSA biography details some of what Ponder has been doing in service to criminal justice reform:

Jon D. Ponder is the founder and CEO of HOPE for Prisoners, Inc. In 2017, Jon was appointed by Governor Brian Sandoval to the Nevada Sentencing Commission and to the Nevada Commission on Postsecondary Education. He was appointed to the Governor’s Reentry Taskforce and the US Commission on Civil Rights Nevada State Advisory Committee in 2016. Jon holds a seat on the Executive Committee of RECAP (Rebuilding Every Community Around Peace) with the Las Vegas Metropolitan Police Department.  His responsibilities include oversight of all aspects of the programs and services provided by HOPE for Prisoners, including a comprehensive array of program components designed to assist individuals to successfully reintegrate into society.  He develops and implements strategic planning for the organization and is extremely passionate about the value of mentoring for persons coming out of correctional settings.

Jon was himself formerly incarcerated and has more than twelve years’ experience in providing training for offender populations in correctional settings.  His personal life experiences equip him to provide the guidance, direction and motivation for individuals attempting to navigate the challenges they face during the reintegration process.

August 25, 2020 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

"The RNC Can't Figure Out Where It Stands on Criminal Justice Reform"

The title of this post captures my own thinking about the somewhat confusing messages being delivered so far from the Republic convention (after the Democratic convention, sadly, barely discussed the issue).  The title of this post is also the headline of this effective new Reason piece by C.J. Ciaramella, which includes these passages:

Speakers at the first night of the 2020 Republican National Convention tried to navigate two competing messages on the criminal justice system.  One was that Joe Biden was an architect of mass incarceration and lock-em-up policies, which Donald Trump rightfully rolled back.  The other message was that only Republicans will stand up for police and the law.

Sen. Tim Scott (R–S.C.), the only black Republican in the Senate, assailed Joe Biden for his role in the 1994 crime bill and creating sentencing disparities between crack and powder cocaine. "Trump fixed many of the disparities that Biden created and made our system more fair and just for all Americans," Scott said, referring to the passage of the 2018 FIRST STEP Act.  Georgia Democrat Vernon Jones, venturing into hyperbole, claimed that Trump "ended once and for all the policy of incarceration of black people." (Although the legislation did result in the release of several thousand federal inmates, it did not abolish the federal prison system, Reason regrets to report.)

But at the same time that speakers were lauding Trump for criminal justice reforms that rolled back some of the laws that Biden helped pass, they were making constant references to riots, violent criminals being let loose on the street, and the threat of antifa mobs coming to your suburban neighborhood once the Marxist Democrats defund the police....

Backing the blue has been one of the centerpieces of Trump's "LAW AND ORDER!" reelection campaign.  Trump's campaign released a 2nd term agenda Sunday night, seeking to put to rest questions of what exactly, if anything, the president and Republicans stand for.  The list of about 50 bullet points includes five under the heading "Defend Our Police."

  • Fully Fund and Hire More Police and Law Enforcement Officers
  • Increase Criminal Penalties for Assaults on Law Enforcement Officers
  • Prosecute Drive-By Shootings as Acts of Domestic Terrorism
  • Bring Violent Extremist Groups Like ANTIFA to Justice
  • End Cashless Bail and Keep Dangerous Criminals Locked Up until Trial

The Republican Party decided to forgo releasing a party platform this year, instead simply saying it supports Trump's agenda.  So this thin gruel, along with speeches at this week's RNC, are what constitute the Republican positions on criminal justice....

Although it will probably come to nothing but more culture war fodder, the inclusion of a pro-cash bail item in Trump's 2nd term agenda is a clearer sign of the Trump administration's priorities on criminal justice than a bill signed two years ago.

August 25, 2020 in Campaign 2020 and sentencing issues, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Spotlighting the still sorry state of federal prisons six months into a COVID pandemic

It has now be almost a full six months since my first post here flagging concerns about the intersection of incarceration and coronavirus, and since then I have covered this challenging story in dozens more posts. But the Washington Post has this notable new piece highlights that prison nation still has big COVID problems, and that matters seem to be even worse in federal prisons than in state systems. The piece is headlined "Prisoners and guards agree about federal coronavirus response: ‘We do not feel safe’," and here are excerpts:

Kareen “Troy” Troitino spent all of July working in a prison medical facility just as the coronavirus was surging through Miami’s Federal Correctional Institution, where the number of confirmed cases ballooned from a handful of prisoners to nearly 100 in a matter of days.  When he returned to work at FCI Miami in August, he was caught off guard when the prisoners welcomed him back with a laudatory uproar he said “sounded like the Super Bowl.”

Word had circulated among prisoners in the 1,000-person low-security facility that Troitino, a corrections officer and union president, was telling reporters, lawmakers and managers that despite assurances, the Bureau of Prisons’ response to the coronavirus pandemic was endangering the lives of federal employees and prisoners alike.  Troitino, who spoke to The Washington Post as a representative of his union, acknowledged that prisoners and guards don’t always find themselves on the same team; but in a pandemic, everyone’s fates are intertwined.  “All of us are trying to survive,” Troitino said.  “Your health affects me, and vice versa. Inmates and staff, we do not feel safe.”

Troitino is among the federal workers suing the government for hazard pay over what they say are risky conditions they’re forced to work under during the pandemic — but he’s hardly a disgruntled worker.  When the BOP announced Aug. 5 it had moved into Phase 9 of its covid-19 action plan, prisoners and their advocates panned the news as the bureau’s attempt to create the impression that the virus is under control in facilities while papering over a deepening health and safety crisis.

BOP Director Michael Carvajal has dismissed scrutiny of the bureau as “misinformation.” During a June Senate Judiciary Committee hearing on covid-19 best practices for prisons and jails, Carvajal testified that the bureau was well-prepared and that the Centers for Disease Control and Prevention had praised the bureau after evaluating unspecified facilities in the early months of the pandemic.  As of June 1, Carvajal said 1,650 federal inmates and 171 bureau staff had tested positive.  Less than 12 weeks later, those numbers grew to 11,953 prisoners and 1,436 staff, with more than 120 combined deaths, according to UCLA’s Covid-19 Behind Bars Data Project.

Covid-19 cases are proportionally higher and have spread faster in prisons than in the outside population, said Brendan Saloner, an associate professor at Johns Hopkins Bloomberg School of Public Health who is studying the issue. Saloner told The Post federal public defenders contacted his team with troubling details from clients. “Their contention is that it’s worse in the BOP than in the state prisons,” he said....

Interviews with a dozen federal prison employees, prisoners, lawyers and health and legal experts who monitor correctional facilities, as well as reviews of lawsuits and petitions filed by prisoners and collected from the UCLA data project, show the ways by which the pandemic has exacerbated existing problems in federal prisons; they range from overcrowding and staff shortages to a lack of transparency around policies for personal protective equipment (PPE) and testing.

“It’s a complete disaster,” said Rob Norcross, an inmate at the minimum-security satellite camp at FCI Jesup in Georgia. The bureau’s stated guidelines about sanitization and social distancing don’t comport with reality, Norcross said: Prison camp inmates are barred from using hand sanitizer, lack cleaning supplies and have nowhere they can move to to create space....

Norcross’s complaints mirror those in a July report by the DOJ’s Office of Inspector General about conditions at a federal prison in Lompoc, Calif.: The OIG reported several issues, including a shortage of medical staffers to address prisoner health concerns and instances where prisoners who clearly exhibited covid-19 symptoms were not tested.  The areas where the Lompoc facility scored the lowest were related to adequate PPE supply for staff and prisoners, and adequate soap or hand sanitizer for prisoners.

Sen. Elizabeth Warren (D-Mass.) ... sent Carvajal letters demanding answers on testing and transparency. Warren and several congressional Democrats introduced a bill Aug. 6 that would require federal and local corrections facilities to collect and report comprehensive data on covid-19 infections and deaths. “Covid-19 is out of control in prisons and jails across the country — and the Trump Administration has failed to effectively manage this pandemic and protect the health and safety of incarcerated people, correctional staff, and the general public,” Warren said in the past week in a statement to The Post.

UCLA Law’s Sharon Dolovich, who leads the Covid-19 Behind Bars Data Project, echoed Warren’s criticism of the bureau, noting the data it does publish on coronavirus cases and deaths is non-comprehensive and opaque.  “The culture of secrecy that’s been allowed to develop in the nation’s prisons and jails over the past 40 years is antithetical to these institutions’ status in a democratic society,” she said.  “We have government officials who act as if this is their private information.”

August 25, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

August 24, 2020

"Climate Change and the Criminal Justice System"

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

The past decade has been the warmest decade in history. But while there has been a great deal of attention paid to issues of infrastructure sustainability, less attention has been focused on the impact of climate change on our criminal justice system.  This paper identifies how we can anticipate climate change will affect and create new challenges for law enforcement, prisons, prosecutorial and defense agencies, government offices, and communities.  This article first examines three ways climate change is challenging our criminal justice system — from altering the types of crimes committed, to detrimentally impacting prisons, jails, and other criminal justice institutions, to challenging traditional doctrines of criminal law such as the necessity and duress defenses and causation.  Drawing in part on lessons from the response to the COVID-19 pandemic, this article makes ten recommendations on how such challenges can be met.

August 24, 2020 in Prisons and prisoners, Recommended reading | Permalink | Comments (1)

Amidst seemingly little attention, federal government seemingly poised to carry out two more executions this week

As partially covered here and here, there was considerable media attention as well as considerable last-minute litigation as the US Justice Department moved forward with plans for, and ultimately completed, three federal executions in a single week in July.  Now another federal capital week looms, as federal officials are scheduled to execute by lethal injection Lezmond Mitchell on Wednesday, August 26 and Keith Dwayne Nelson on Friday, August 28 (and the feds have yet another double-death week planned for September with William LeCroy scheduled for execution on September 22 and Christopher Vialva scheduled for execution on September 24).  But, as the title of this post suggests, I sense this second round of federal executions is getting a lot less attention than even the usual state execution typically does.

Notably, Lezmond Mitchell has some pending claims before the Supreme Court (SCOTUSblog coverage here), and the fact that he is the only Native American on federal death row has generated some media coverage as highlighted by these stories:

But even with these pieces and some additional critical commentary, it still seems like the planned federal execution of Lezmond Mitchell is getting less attention than I might have expected.  Even more remarkable, I cannot seem to find a single detailed press piece written recently about Keith Dwayne Nelson and his pending federal execution.  I surmise that Nelson does not have any legal appeals pending, but that fact alone would be remarkable (and press-worthy) if anyone were closely paying attention.

It is not hard to understand why these matters are not getting much attention.  An enduring pandemic, an election season, back-to-school challenges, wildfires and hurricanes, protests and so much else all make for much better "copy" for the media.  Moreover, as suggested in this post, there may be less legal drama around these cases after SCOTUS made clear last month that it would be eager to lift lower court stays to enable executions to move forward on the schedule set by Attorney General Barr.  Still, I had to remark on how remarkable it seems to me that this week's executions now seem so likely to go forward with relatively so little attention.

A few of many recent prior related posts:

UPDATE: I failed to see this Friday afternoon press report on noting that Nelson's lawyers have joined in filings about the federal government's executions methods, which is headlined "Lawyers: Autopsy suggests inmate suffered during execution." Here are the basics:

An inmate suffered “extreme pain" as he received a dose of pentobarbital during just the second federal execution following a 17-year lag, according to court filings by lawyers representing one of the inmates scheduled to be executed next.  The claim Wesley Purkey may have felt a sensation akin to drowning while immobilized but conscious is disputed by Department of Justice attorneys. They insist the first three lethal injections since 2003 were carried out without a hitch last month at the federal prison in Terre Haute, Indiana.

This month's filings were part of motions to halt the execution of Keith Nelson, convicted in the 1999 rape and strangulation of 10-year-old Pamela Butler. Prosecutors said he pulled her into his truck as she skated on rollerblades back to her Kansas home after buying herself cookies.  Nelson’s execution is set for Aug. 28.  The execution of Lezmond Mitchell, the only Native American on federal death row, is scheduled for Aug. 26. His lawyers have made similar arguments.

August 24, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

August 23, 2020

"Incarceration and the Law: Cases and Materials (Table of Contents and Ch. 1 Excerpt)"

The title of this post is the title of this SSRN posting with a part of the latest new edition of the casebook Incarceration and the Law: Cases and Materials.  Here is the abstract:

This posts a table of contents and much of the first chapter to a fully overhauled, updated, and expanded edition of the leading case book on incarceration.  The case book examines the complex legal regime that defines prisoners’ rights. Mass incarceration in America creates a host of controversies at the crossroads of constitutional liberty, legislation, public policy, and prison management.  It considers those issues from diverse perspectives by presenting an array of materials: Supreme Court and leading lower court caselaw, statutes, litigation materials, professional standards, academic commentary, prisoner writing, and more.  (There is also an associated website, http://incarcerationlaw.com, which offers additional open sources, supplementing the book for those who own it and providing a freestanding repository of materials for those who do not.)

Chapter 1 provides background on American jails and prisons (What’s the difference between a jail and a prison?  What is incarceration supposed to accomplish?  How do prison abolitionists conceptualize and justify their goals?  How did American incarceration develop?)  It provides longitudinal and contemporary statistics.  Finally, it offers narrative and case law background on the development of the modern conception of prisoners’ rights.

August 23, 2020 in Prisons and prisoners, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (0)

The new death penalty: COVID has now killed more US prisoners in months than the US death penalty has in the last two decades

The UCLA Covid-19 Behind Bars Data Project has been doing a terrific job keeping an updated count, via this spreadsheet, of confirmed COVID deaths of persons serving time in state and federal facilities.  As of the morning of Sunday, August 23, this UCLA accounting had tabulated 858 "Confirmed Deaths (Residents)." 

This considerable number is sad and disconcerting on its own terms, but it is even more remarkable given that it amounts to more prisoner deaths than has been produced by carrying out formal death sentences in the United States for the entire period from 2001 to 2020.  According to DPIC data, there were a total of 839 executions from the start of 2001 through today.

Of course, comparing capital punishment and COVID incarceration carnage is problematic in many ways.  All persons executed in the US in recent times have been convicted of the most aggravated forms of murder.  The majority of prisoners to die of COVID were not responsible for a death (although, as noted here, some persons on California's death row are part of the COVID prisoner death count).  In a few prior posts here and here, I noted that nearly half of the early reported deaths of federal prisoners involved individuals serving time for drug crimes.  Another such offender died just last week according to this BOP press release: Luis A. Velez contracted COVID in FCI Coleman this summer and died on August 18; he was only 58-year-old and had been in federal prison for five years (of a 13-year sentence) after his conviction of possession with intent to distribute meth.

Another problem with comparing capital punishment and COVID incarceration carnage relates to that correctional staff do not die from administering capital punishment, but many have died from COVID.  The UCLA spreadsheet currently reports "only" 72 "Confirmed Deaths (Staff).  I am pleasantly surprised that this number is not bigger, but I will be ever troubled by the thought it could have been much lower along with the prisoner death number if more aggressive depopulation efforts were taken to more the most vulnerable and least risky offenders out of the super-spreader environment that prisons represent.

A few of many prior related posts:

August 23, 2020 in Death Penalty Reforms, Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (9)