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October 3, 2020

"#MeToo and Mass Incarceration"

The title of this post is the title of this new piece on SSRN authored by Aya Gruber.  Here is its abstract:

This Symposium Guest Editor’s Note is an adapted version of the Introduction to The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration (UC Press 2020).  The book examines how American feminists, in the quest to secure women’s protection from domestic violence and rape, often acted as soldiers in the war on crime by emphasizing white female victimhood, expanding the power of police and prosecutors, touting incarceration, and diverting resources toward law enforcement and away from marginalized communities.  Today, despite deep concerns over racist policing and mass incarceration, many feminists continue to assert that gender crime law is not tough enough.  This punitive impulse, I argue, is dangerous and counterproductive, and should be abandoned.  History reveals that feminists' carceral approach often exacerbated social inequalities by expanding and underwriting the repressive criminal system, that harmed defendants, victims, and their families and communities.

This essay begins with the feminist defense attorney dilemma I felt as a law student, when I trained to represent marginalized people against state prosecutorial power but did so with a dread of defending horrific rapists and batterers. Later, as a public defender, I represented clients like Jamal, an accused abuser whose story is related in detail, and I saw firsthand the costs of the tough-on-crime machine that carceral feminism built.  The essay then moves to the present day, with a discussion of the #MeToo movement and campus rape reform.  I counsel contemporary feminists that their noble fight against sexual misconduct can easily collapse into simple crime-control politics and urge them to articulate their complex beliefs about gender and violence without relying on penal discourses and institutions that are steeped in hypermasculinity and gratuitous violence.

October 3, 2020 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sex Offender Sentencing, Who Sentences | Permalink | Comments (0)

October 1, 2020

Council on Criminal Justice's new National Commission on COVID-19 and Criminal Justice releases first report on "Recommendations for Response and Future Readiness"

I noted here a few month ago that the Council on Criminal Justice (CCJ) had launched an important, timely and impressive new commission titled the "National Commission on COVID-19 and Criminal Justice" and headed by two former US Attorneys General.   This commission today released this first interim report titled "Recommendations for Response and Future Readiness," and here is a portion of its executive summary:

Since it was established in late July, the Commission has worked quickly, publishing six reports assessing the impact of COVID-19 on crime rates, budgets, and jail and prison populations. It has taken written and oral testimony from a broad spectrum of criminal justice organizations, researchers, advocates and others, including those recently released from correctional facilities.

This interim report, Recommendations for Response and Future Readiness, tackles the second goal. It is intended to assist criminal justice leaders on the front lines by offering actionable guidance on how to respond immediately and directly to the coronavirus pandemic, and to prepare for a possible second wave of infections this fall.  A subsequent report, to be released by the end of 2020, will offer consensus recommendations that address the broader implications of the pandemic and systemic reforms to policy and practice.

Guiding Principles

What should criminal justice leaders do, right now, when responding to COVID-19? What are the most important steps they can take immediately to limit the spread of the virus and improve readiness?

First, they should follow a set of key principles, as detailed in these recommendations.

  • Preserve public health in addition to public safety;
  • Get the facts and rely on strong data and science;
  • Be proactive, going above and beyond normal measures to protect all those connected to the criminal justice system; and
  • Improve equity and increase inclusion in decision-making, being mindful of the racial and other disparities that plague both the health and justice systems.

Cross-Sector Recommendations

Criminal justice leaders should also consider the following general recommendations that apply to all sectors of the system.

  • Stop exponential growth. Leaders should aim to exceed authoritative guidance from the Centers for Disease Control and other authoritative bodies in order to contain the potential exponential spread of COVID-19. Exponential growth means that one person infects many, and those many infect many more. It is imperative for leaders to prevent such growth of COVID-19 cases - and remain vigilant once it is controlled – by consistently implementing and enforcing well-known, scientifically proven measures such as physical distancing, universal masking, and mass testing.
  • Communicate transparently. Criminal justice leaders should be as transparent as possible in addressing the coronavirus pandemic. Leaders must communicate clearly, quickly, and repeatedly with staff, justice-involved populations and their families, and the public. They must also collect, report, and make public critical data related to COVID-19 infection, morbidity, and mortality, taking care to capture data by race and ethnicity in order to produce a full picture of how the virus has affected the groups most impacted by the justice system.
  • Limit contact, maximize distance, reduce density. Given the risks associated with criminal justice contact during the pandemic, leaders should take measures to limit system contact, maximize distance, and reduce density wherever possible. Such measures may include limiting custodial arrests, reducing admissions to and increasing releases from jails and prisons, and moving indoor operations and activities outside, among others.
  • Allocate resources strategically. The coronavirus pandemic has deeply impacted the local, county, and state budgets that fund the vast majority of criminal justice operations in the country. In response to declining revenues and shrinking budgets, leaders should allocate resources strategically rather than order simplistic across-the-board cuts. In particular, leaders should innovate, using technology to do more with less, as well as preserve funding for evidence-based programming and solutions that provide equitable access to justice.
  • Engage impacted communities. Critically, criminal justice leaders should actively collaborate with each other and engage and consider impacted communities in all decision making. Regular opportunities for input from disproportionately impacted groups should be provided, especially poor communities of color. Leaders should be mindful of the racial disparities that continue to plague the criminal justice and health systems and ensure their responses to COVID-19 do not exacerbate such disparities.

Sector-Specific Recommendations

The Commission recommends a series of measures for each of the four major sectors of the criminal justice system. These recommendations provide more detailed, specific guidance for leaders to address the unique realities of each sector.

October 1, 2020 in Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (0)

"Transparency in Plea Bargaining"

The title of this post is the title of this forthcoming article authored by Jenia Iontcheva Turner available via SSRN. Here is its abstract:

Plea bargaining is the dominant method by which our criminal justice system resolves cases. More than 95% of state and federal convictions today are the product of guilty pleas. Yet the practice continues to draw widespread criticism.  Critics charge that it is too coercive and leads innocent defendants to plead guilty, that it obscures the true facts in criminal cases and produces overly lenient sentences, and that it enables disparate treatment of similarly situated defendants.

Another feature of plea bargaining — its lack of transparency — has received less attention, but is also concerning. In contrast to the trials it replaces, plea bargaining occurs privately and off-the-record.  Victims and the public are excluded, and the defendant is typically absent. While the Sixth and First Amendments rights of public access extend to a range of pretrial criminal proceedings, they do not apply to plea negotiations.  For the most part, rules and statutes also fail to require transparency in the process. As a result, plea bargaining is largely shielded from outside scrutiny, and critical plea-related data are missing.

There are some valid reasons for protecting aspects of plea negotiations from public scrutiny.  Confidentiality fosters candor in the discussions and may encourage prosecutors to use their discretion more leniently.  It can help protect cooperating defendants from retaliation.  And it may expedite cases and conserve resources.

Yet the secrecy of the process also raises concerns.  It prevents adequate oversight of coercive plea bargains, untruthful guilty pleas, and unequal treatment of defendants. It can hinder defense attorneys from providing fully informed advice to their clients.  It can also potentially impair victims’ rights and interests.  Finally, the absence of transparency leaves judges with few guideposts by which to evaluate plea bargains and inhibits informed public debate about criminal justice reform.

This Article reviews plea bargaining laws and practices across the United States and argues that we can do more to enhance the documentation and transparency of plea bargaining. It then proposes concrete areas in which transparency can be improved without significant costs to the criminal justice system.

October 1, 2020 in Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (0)

Lots and lots of notable (and very consequential?) new criminal justice reforms now law in California

CaliforniaflagCalifornia has long been a very big and very interesting and very complicated state when it comes to criminal justice and sentencing reform. This fascinating state story continued with a lot of new bills being signed yesterday by Gov Gavin Newsom. This local article (which somewhat tracks this official document from the Governors office) provides some of the details and provides especially helpful links to the underlying legislation.  Here are excerpts focused on criminal justice reforms with my bolding added for follow-up comments:

Gov. Gavin Newsom signed landmark bills into law on Wednesday, the last day available for the governor to sign legislation.  The docket included racial justice, criminal justice, and policing reform, as well as legislation related to cannabis, rental housing, and banning hazardous chemicals and ingredients in cosmetics. 

This long list of signed bills has my head spinning, and the title of this post highlights that I am particularly curious and particularly uncertain about how consequential all these bills are likely to be.  I have bolded the two bills that, as a sentencing fan, strike me as particularly intriguing and potentially very consequential. 

AB 1950, which caps the duration of probation terms, has been described by REFORM Alliance as the "most transformative probation reform bill in the country."  This new Fox News article, headlined "Jay-Z, Meek Mill's REFORM Alliance celebrate 'major victory' with Calif. Gov. Newsom passing probation bill," talks about this new bill and the efforts and people behind making it law.  Here is a snippet:

On Wednesday, REFORM announced on Instagram it was celebrating a "MAJOR REFORM VICTORY." Through its verified Instagram account, the alliance thanked California Gov. Gavin Newsom for signing AB 1950 into law.  "This bill will help put hundreds of thousands of Californians on probation in positions to succeed and exit the criminal justice system for good.  Thank you @GavinNewsom!" the Instagram post reads.  In a follow-up post, the organization wrote, "This is just the beginning. This is how we #fightdifferent."...

REFORM's CEO Van Jones explained in a video statement that the law will essentially "make people be on probation for much less time" and will "give people a much better shot at getting out of that system, getting what they need and getting on their way."  The premise is to reduce the number of probation violations.

AB 2542, which provides for a California Racial Justice Act, seems to be the biggest and broadest racial justice act ever passed by any state because it seems to apply to all convictions and sentences and not just death sentences as did comparable Racial Justice Act passed in Kentucky and North Carolina years ago.  Notably, Michelle Alexander wrote this op-ed last week endorsing this bill and explaining its reach this way (with my emphasis added):

The new law will make it possible for a person charged or convicted of a crime to challenge racial, ethnic, and national-origin bias in their case through relevant evidence, including: 

▪ Explicit racial bias by an attorney, judge, law enforcement officer, expert witness, or juror involved in the case.

▪ Use of racially discriminatory language in court and during the criminal proceedings, whether or not intentional.

▪ Racial bias in jury selection, such as removing all or nearly all Black, brown, Native, Indigenous and people of color from the jury.

▪ Statistical disparities in charging and convictions — that is, evidence that people of one race are disproportionately charged or convicted of a specific crime or enhancement.

▪ Statistical disparities in sentencing — that is, evidence that people of one race receive longer or more severe sentences, including the death penalty or life without parole.

I believe that the new California Racial Justice Act only applies prospectively, and so we will not see extensive litigation over past sentences as we did in North Carolina (and which led to the repeal of that state's Racial Justice Act). But even as just a prospective measure, I am inclined to predict that this new statute could prove highly consequential in all sorts of ways.

I am hopeful that smart folks who focus on the California criminal justice system might soon blog about to these bills and their potential impacts. And, of course, another wave of reform in California might not be far away: as this article highlights under the headline "Three ballot measures test attitudes on crime in California," a set of criminal justice initiatives being put to California voters next month will add to this remarkable 2020 reform chapter in the Golden State.

October 1, 2020 in Criminal Sentences Alternatives, Race, Class, and Gender, Reentry and community supervision, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

"Explaining the Past and Projecting Future Crime Rates"

The title of this post is the title of this notable new report coming from the Harry Frank Guggenheim Foundation and authored by James Austin, Todd Clear and Richard Rosenfeld.  Here is the relatively short report's abstract:

To date criminologists have a poor record of anticipating future crime rates.  As a result, they are ill-equipped to inform policy makers about the impact of criminal justice reforms on future crime.  In this report, we assess the factors that explain changes in crime during the past three decades.  Our analysis shows that macro-level economic and demographic factors best explain trends in violent and property crime.  Together, those factors outweigh the impact of imprisonment rates on crime.  We also show that it is possible to lower imprisonment rates without causing an increase in crime.  Indeed, several states have done exactly that.  Finally, we present models for projecting future crime rates.  Based on these models, crime is projected to decrease over the next five years.  The next step should be to apply similar analyses to individual states and local jurisdictions to advise policy makers on the implications of their criminal justice reform strategies for public safety.

October 1, 2020 in National and State Crime Data, Recommended reading, Scope of Imprisonment | Permalink | Comments (0)

September 30, 2020

Is Judge Amy Coney Barrett the first SCOTUS nominee to disclose multiple blog posts in her Senate questionnaire?

The question in the title of this post comes from my review of this new NPR piece headlined "What Barrett Would Recuse Herself From: Takeaways From Senate Questionnaire."  The NPR piece highlights a few parts of the 65-page questionnaire that Judge Barrett submitted to the Senate Judiciary Committee, but I was especially captivated by page 10 of that document.  On that page, Judge Barrett lists seven posts (and a comment) that she authored during a month she was guest-posting at PrawfsBlawg in March 2008.

Ever the blog fan, I checked out Judge Barrett's PrawfBlawg writings from a dozen years ago.  I was first bemused to discover that I was also guest-blogging at PrawfBlawg the same month as then-Professor Barrett.  Next, as a fan of temperance history, I especially enjoyed this post titled "Grape Vodka, Anyone?" (where perhaps some hints of originalism might be seen).  Ultimately, though, the most intriguing post for me and perhaps other sentencing fans is this one titled "Sentencing Guidelines and Retroactivity."   That post discusses at some length what then-Professor Barrett calls the "on-the-ground implications of retroactivity" of the crack guidelines that were reduced by the US Sentencing Commission in 2007.  

I won't say more about what are now dated blog musings by a SCOTUS nominee, but I will say I am pleased to be able to report that it seem a little blogging history does not alone disqualify a person from being tapped for the High Court.

September 30, 2020 in On blogging, Who Sentences | Permalink | Comments (0)

Heiress involved in NXIVM group gets way-above-guideline sentence

I have not really been following the NXIVM saga at all, but today brought a first federal sentencing case that caught my attention. This local article, headlined "Clare Bronfman receives more than six years for NXIVM crimes Federal judge exceeds sentence prosecutors had been seeking," provides these details:

Heiress Clare Bronfman was sentenced Wednesday to six years and nine months in federal prison for crimes related to her leadership role in NXIVM. She was taken directly into federal custody at the end of the court proceeding.

The sentence was handed down to the 41-year-old daughter of late Seagram's tycoon Edgar Bronfman in a Brooklyn courtroom after several victims related their painful experiences dealing with the well-heeled backer of Keith Raniere’s cult-like organization.

A number of former NXIVM members delivered victim impact statements to Senior U.S. District Judge Nicholas Garaufis. One of those women was Barbara Bouchey, a former girlfriend of Raniere's who faced years of retaliation by NXIVM after she left the group more than a decade ago. She called Garaufis' sentence justice served: “When I heard him say 81 months, I was speechless,” Bouchey said.

Bronfman, who has homes in Clifton Park and Manhattan, was anticipating a sentence of just 21 to 27 months in prison under sentencing guidelines for her guilty plea to conspiracy to conceal and harbor illegal aliens for financial gain, and fraudulent use of identification.

Garaufis had made it clear he was considering an "above guidelines" punishment. Her recently hired attorneys, Ronald S. Sullivan Jr. and Duncan Levin, have asked for three years of probation. Federal prosecutors in Brooklyn’s Eastern District have asked for a five-year prison sentence. Garuafis went beyond both requests. He also levied a $500,000 fine on Bronfman.

Prosecutors said Bronfman, who was in NXIVM alongside her older sister, Sara Bronfman-Igtet, used her wealth to recruit immigrants – usually women – into NXIVM-related groups under the idea that they would get a scholarship or work. But Bronfman instead got a work-force of recruits desperate to earn a living and who were dependent on her and NXIVM to stay in the country.  Prosecutors have said Bronfman helped Raniere target the company’s perceived enemies, which included members of the organization who defected....

Raniere, 60, a longtime Halfmoon resident known in NXIVM as “Vanguard,” was convicted at trial last year of all charges, which included sex trafficking, forced labor conspiracy and racketeering charges that included underlying acts that included child exploitation, possession of child pornography, identity theft, extortion, fraud and other crimes.  He faces the possibility of life in prison at his sentencing on Oct. 27.

This New York Times article reporting on the sentencing notes why this case may end up in the Second Circuit: "Ronald Sullivan, a lawyer for Ms. Bronfman, said he would appeal the sentence, calling it an 'abomination'."

September 30, 2020 in Celebrity sentencings, Federal Sentencing Guidelines, White-collar sentencing | Permalink | Comments (1)

New FBI crime data for 2019 reports more encouraging crime declines

Distracted by other matters, I have only today had the opportunity to focus on the release of the FBI's mostly encouraging crime data for 2019 (big data chart here), which is summarized in this official FBI press release.  Here are excerpts from the release:

For the third consecutive year, the estimated number of violent crimes in the nation decreased when compared with the previous year’s statistics, according to FBI figures released today.  In 2019, violent crime was down 0.5% from the 2018 number.  Property crimes also dropped 4.1%, marking the 17th consecutive year the collective estimates for these offenses declined.

The 2019 statistics show the estimated rate of violent crime was 366.7 offenses per 100,000 inhabitants, and the estimated rate of property crime was 2,109.9 offenses per 100,000 inhabitants.  The violent crime rate fell 1.0% when compared with the 2018 rate; the property crime rate declined 4.5%.

These and additional data are presented in the 2019 edition of the FBI’s annual report Crime in the United States. This publication is a statistical compilation of offense, arrest, and police employee data reported by law enforcement agencies voluntarily participating in the FBI’s Uniform Crime Reporting (UCR) Program.

The UCR Program collects information on crimes reported by law enforcement agencies regarding the violent crimes of murder and nonnegligent manslaughter, rape, robbery, and aggravated assault, as well as the property crimes of burglary, larceny-theft, motor vehicle theft, and arson....  The program also collects arrest data for the offenses listed above and 20 offenses that include all other crimes except traffic violations.

Of the 18,667 federal, state, county, city, university and college, and tribal agencies eligible to participate in the UCR Program, 16,554 agencies submitted data in 2019.  A high-level summary of the statistics submitted, as well as estimates for those agencies that did not report, follows:

  • In 2019, there were an estimated 1,203,808 violent crimes.  When compared with the estimates from 2018, the estimated number of robbery offenses fell 4.7% and the estimated volume of rape (revised definition) offenses decreased 2.7%.  The estimated number of aggravated assault offenses rose 1.3%, and the volume of murder and nonnegligent manslaughter offenses increased 0.3%.
  • Nationwide, there were an estimated 6,925,677 property crimes.  The estimated numbers for all three property crimes showed declines when compared with the previous year’s estimates.  Burglaries dropped 9.5%, larceny-thefts decreased 2.8%, and motor vehicle thefts were down 4.0%.
  • Collectively, victims of property crimes (excluding arson) suffered losses estimated at $15.8 billion in 2019.
  • The FBI estimated law enforcement agencies nationwide made 10.1 million arrests (excluding those for traffic violations) in 2019.
  • The arrest rate for violent crime was 156.3 per 100,000 inhabitants, and the arrest rate for property crime was 343.3 per 100,000 inhabitants....
  • In 2019, 13,247 law enforcement agencies reported their staffing levels to the FBI. These agencies reported that, as of October 31, 2019, they collectively employed 697,195 sworn officers and 306,075 civilians — a rate of 3.5 employees per 1,000 inhabitants.

As I have said in many prior posts, I think we should all always celebrate any and all crime declines in the US; we also should always keep in mind that the rates and numbers of murders and other violent crimes in the US are still higher than what is typically reported in many European nations and so we ought not pat ourselves on the back too much.  And, of course, perhaps due to all the disruptions of 2020, there has been a considerable spike in murders and shootings this year.  And yet the FBI's  Preliminary Uniform Crime Report for January–June 2020 reported  overall declines in the total number of violent crimes and property crimes over the first six months 2020 compared to the first six months of 2019.

Of course, all these data can be spun in many ways.  In recent years, I have been ever eager to suggest that criminal justice reform advocates should be sure to highlight that we have been experiencing continued reductions in all sorts of crimes amidst  sentencing reform being implemented or considered across the nation.  And 2019 was the first year in which the federal FIRST STEP Act was fully in effect and led to a measurable reduction in the federal prison population.  Based on these data alone, I would never assert that the FIRST STEP Act directly helped to reduce crime in 2019; but these data should make it harder for opponents of sentencing reform to make any facile claim that such reforms always results in crime increases.

Interestingly, this DOJ press release about the FBI data includes quotes from the Deputy Attorney General taking some credit for recent crime declines:

“For the last three years the Department of Justice has worked tirelessly with our federal, state, local, and tribal partners to pursue those violent criminals, cartels, and gangs who seek to harm our communities,” said Deputy Attorney General Jeffrey A. Rosen.  “We are steadfast in our commitment to protect the public safety of citizens and communities across the United States through violent crime initiatives like Project Safe Neighborhoods, Project Guardian and, most recently, Operation Legend.  Violent crime rates had been increasing during 2015-2016, so I am proud of the hard work by all prosecutors and law enforcement agents across the nation who have reduced violent crime rates during each of the last three years.  I look forward to continuing our joint efforts to protect the American public from the violence of criminals.”

Meanwhile, in this post over at Crime & Consequences, Kent Scheidegger seems to question whether the crime decline is just a reporting illusion: "This data set does not include crimes not reported to or otherwise known to the police.  As we have discussed on this blog previously, the change of many crimes from felonies to misdemeanors is likely to decrease reporting as the police are less likely to take any worthwhile action."

September 30, 2020 in National and State Crime Data | Permalink | Comments (0)

"Youth Justice Under the Coronavirus: Linking Public Health Protections with the Movement for Youth Decarceration"

The title of this post is the title of this notable new report written by Josh Rovner at The Sentencing Project.  Here is the start of its executive summary:

The novel coronavirus, COVID-19, has infected more than 1,800 incarcerated youth and more than 2,500 staff working in the detention centers, residential treatment facilities, and other settings that comprise the deep end of the juvenile justice system.  More than six months after the first infections emerged, the emergency is not over.

According to data collected by The Sentencing Project, COVID-19 cases have been reported among incarcerated youth in 35 states, the District of Columbia and Puerto Rico.  In five states, more than 100 incarcerated youth have tested positive.  Four staff members working in juvenile facilities have died from the virus.

In congregate care settings, this contagious pathogen’s spread was inevitable.  States and localities have taken steps to mitigate COVID-19’s impact, including releasing confined youth, curtailing admissions, limiting visitation and programming, and isolating youth in a manner that mimics solitary confinement.  Given the persistent racial and ethnic disparities in juvenile justice, there is little doubt that youth of color are suffering disproportionately from the virus and the changes within facilities that it has brought.

This report summarizes lessons learned through the first months of the pandemic, focusing on system responses, both positive and negative, to slow the virus’s spread and to protect the safety and wellbeing of youth in the juvenile justice system while keeping the public informed.  Drops in admissions during the pandemic, alongside decisions to release youth at a higher rate than during ordinary times, buttress the long-standing case that youth incarceration is largely unnecessary.  Jurisdictions must limit the virus’s damage by further reducing the number of incarcerated youth.

September 30, 2020 in Impact of the coronavirus on criminal justice, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

September 29, 2020

Any suggestions for sharp Prez debate questions on criminal justice issues?

Tonight begins the Prez debate season, though I am probably more looking forward to the MLB post-season.  I made the case in this post last month for why I think we ought to somehow arrange for one of the upcoming debates to be entirely about criminal justice issues, but that seems unlikely to happen either formally or informally.  Still, though these topics never get enough attention for my taste, I am hopeful  that the issues that consume this blog could be end up being discussed at some length and with some real bite tonight or at one or more of the coming debates.

Ever eager to help those with the challenging task of executing these debates, I am now eager to hear from readers in the comments  about what criminal justice issues they hope to see raised in the debates.  I would be especially eager, as the title of this post highlights, to read in the comments actual suggested questions that are crafted in sharp ways to try to help ensure the candidates cannot get away with fuzzy answers.   I genuinely doubt that any of the debate moderators are regular readers of the comment section of this blog, but you never know.

So, dear readers, what are your sharp suggestions for sharp Prez debate questions on criminal justice issues?

September 29, 2020 in Campaign 2020 and sentencing issues, Who Sentences | Permalink | Comments (4)

Bureau of Justice Statistics releases "Capital Punishment, 2018 – Statistical Tables"

This morning the Justice Department's Bureau of Justice Statistics released this new report with notable national data on the administration of the death penalty in the United States through 2018. As I have noted before, though BJS is often the provider of the best available data on criminal justice administration, in the capital punishment arena the Death Penalty Information Center tends to have more up-to-date and more detailed data on capital punishment. In any event, this new BJS report still provides notable and clear statistical snapshots about the death penalty, and the document sets out these initial "highlights":

September 29, 2020 in Death Penalty Reforms, Detailed sentencing data | Permalink | Comments (1)

September 28, 2020

Fifth Circuit panel rejects claims of unconstitutional or unreasonable trial penalty at sentencing

A Fifth Circuit panel ruling today addresses, but ultimately rejects, a white-collar defendant's claim that "her sentence should be vacated because it was the result of an unconstitutional 'trial penalty' — a punishment for choosing to exercise her right to stand trial instead of pleading guilty." US v. Gozes-Wagner, No. 19-20157 (5th Cir. Sept. 28, 2020) (available here).  Because I helped with an amicus brief in the case, I will not comment extensively beyond recommending the opinion be read in full and highlighting these passages (with footnotes and cites removed):

Here, however, Gozes-Wagner and Voronov were ultimately charged with different crimes that carried different statutory maximum sentences.  Although they may have participated similarly in the conspiracy, our job is not to look at their two sentences and decide whether we think Voronov and Gozes-Wagner should have been punished more equally based on their conduct.  Instead, our duty is to determine whether the district court sentenced Gozes-Wagner more harshly than it otherwise would have because she went to trial instead of pleading guilty.  And on this record, we cannot say that it did...

For example, if the district court plainly stated that it was punishing the defendant more severely than it otherwise would because she went to trial, that would clearly amount to a constitutional violation even absent a comparison to others similarly situated to the defendant. But that did not happen here.

We recognize that most — if not all — cases will not be so cut-and-dried, and that a defendant’s constitutional rights may be violated even absent such an explicit statement.  In those cases, it is the comparison to others that necessarily sheds light on whether a constitutional violation occurred.  If the only meaningful difference between defendants was that one went to trial and the others did not, and the trial-standing defendant received a much more severe sentence than the pleading defendants, it could very well be the case that vacatur of the sentence will be required on trial penalty grounds.  But a defendant who cooperates with the Government is not similarly situated to one who refuses to do so.  Nor are defendants similarly situated when they are convicted under different statutes that carry different maximum sentences.  If the case were otherwise, we would be holding that the Constitution mandates that defendants convicted of committing different crimes be sentenced similarly if the conduct underling those convictions is similar.  We see no such mandate in the Constitution or in the Due Process caselaw addressing claims like Gozes-Wagner’s.

I cannot help noting that, though nothing "in the Constitution or in the Due Process caselaw" may speak to sentencing disparities, Congress expressly instructed sentencing judges, in 18 USC 3553(a)(6), to consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."  And the sentencing judge in this case knew that defendant Voronov (who "participated similarly in the conspiracy") faced a 5-year maximum sentence after pleading guilty, but he still gave Gozes-Wagner a sentence of 20 years.  That served as one basis for arguing that this sentence was unreasonable even if not unconstitutional, but the Fifth Circuit panel was ultimately unmoved on reasonableness arguments:

Nothing in the record suggests that the court went out of its way to punish Gozes-Wagner for going to trial. To the contrary, when presented with arguments that she was similarly situated to her co-defendants, the district court correctly pointed out that for various reasons, including the fact that her co-conspirators pleaded guilty to charges carrying lower maximum sentences, she was not similarly situated to them at sentencing. The record does not reflect a clear error of judgment in the district court’s balancing of the § 3553(a) factors.

September 28, 2020 in Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (1)

Split First Circuit panel recognizes, in 2255 proceeding, Johnson vagueness claim as to old mandatory career-offender guideline

The very title of this post is likely inscrutable to persons not intimately familiar with the ins and outs of federal sentencing law and practice.  But those who are intimately familiar with the ins and outs of federal sentencing law and practice will want to check out Shea v. US, No. 17-1899 (1st Cir. Sept 28, 2020) (available here), to see the debate over whether an armed bank robber originally sentenced in 1995 to over 47 years in federal prison might now have a chance to be resentenced.  The majority (per Judge Thompson) says yes in a lengthy opinion that starts this way:

In Johnson v. United States, 576 U.S. 591, 597 (2015), the Supreme Court held that a jumble of words in a federal law could not be used to fix a defendant's sentence, a rule that applies retroactively.  See Welch v. United States, 136 S. Ct. 1257, 1264 (2016).  Years ago, judges used the same wording in another binding rule with "the force and effect of law[ ]," United States v. Booker, 543 U.S. 220, 234 (2005) — § 4B1.2(a)(2) of the U.S. Sentencing Guidelines — to fix defendants' sentences.  Because Johnson made that unconstitutional, we reverse the district court's decision denying the motion to vacate and remand for further proceedings.

Judge Selya has a short dissent that starts this way:

Time-and-number limitations, generally applicable to certain collateral review proceedings, may sometimes be relaxed when a petitioner seeks to avail himself of a new rule of constitutional law announced by the Supreme Court and expressly made retroactive to cases previously decided.  See Teague v. Lane, 489 U.S. 288, 310 (1989) ("[N]ew constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced . . . [u]nless they fall within an exception to the general rule."); see also Welch v. United States, 136 S. Ct. 1257, 1264 (2016) (discussing exceptions to general bar on retroactivity).  But this principle does not provide free rein to the lower federal courts — the courts of appeals and the district courts — either to extend a rule into uncharted waters or to speculate about where a Supreme Court decision might eventually lead.  My colleagues' decision crosses this line, staking out a position that the Court has yet to articulate.  Because I cannot join this excursion into forbidden terrain, I write separately.

September 28, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (3)

"Prosecutors and Mass Incarceration"

The title of this post is the title of this new article available via SSRN authored by Shima Baradaran Baughman and Megan Wright.  Here is its abstract:

It has long been postulated that America’s mass incarceration phenomenon is driven by increased drug arrests, draconian sentencing, and the growth of a prison industry.  Yet among the major players — legislators, judges, police, and prosecutors — one of these is shrouded in mystery.  While laws on the books, judicial sentencing, and police arrests are all public and transparent, prosecutorial charging decisions are made behind closed doors with little oversight or public accountability.  Indeed, without notice by commentators, during the last ten years or more, crime has fallen, and police have cut arrests accordingly, but prosecutors have actually increased the ratio of criminal court filings.  Why?

September 28, 2020 in Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

September 27, 2020

Some interesting early accounting of Judge Amy Coney Barrett's interesting Seventh Circuit criminal justice work

Judge_Barrett_Trump_Supreme_Court_SEPT_2020_Rose_GardenOver at Reason, Jacob Sullum last week already assembled and assessed in this lengthy piece a review of Seventh Circuit Judge (and now SCOTUS nominee) Amy Coney Barrett's judicial record regarding the "treatment of criminal defendants' constitutional and statutory claims."  I recommend that thorough review, and here is part of its lead in:

When it comes to the rights of criminal defendants and the actions of law enforcement agencies, the "conservative" label covers a wide range of attitudes.  Although progressives tended to depict Justice Antonin Scalia as an authoritarian ogre, for instance, he sided with defendants in several important Fourth Amendment and Sixth Amendment cases.  Neil Gorsuch, the judge President Donald Trump picked to replace Scalia, has shown an even stronger inclination to uphold the rights of the accused and to question the conduct of police officers and prosecutors, repeatedly breaking with fellow conservatives such as Samuel Alito and Clarence Thomas.  By contrast, 5th Circuit Judge James Ho, another candidate on Trump's list of potential Supreme Court nominees, showed a troubling deference to law enforcement in a 2019 case involving a man killed by Texas sheriff's deputies.

The opinions Barrett has written in cases brought by criminal defendants and prisoners since joining the U.S. Court of Appeals for the 7th Circuit in 2017 present a mixed picture.  While she is often skeptical of the government's arguments when it tries to put or keep people in prison, she has sometimes rejected claims by defendants and prisoners that her colleagues found credible.  It is clear from Barrett's record that she does not reflexively side with the government in criminal cases.

In a somewhat similar vein, ABC News has this new piece reviewing a handful of Judge Barrett's Seventh Circuit rulings headlined "3 cases that hint at Amy Coney Barrett's views on policing."  On a slightly different front, Matt Ford at The New Republic has this notable review of Judge Barrett's notable dissenting work in Kanter v. Barr, 919 F.3d 437 (2019), under the (inaccurate) headline "Amy Coney Barrett Wants Felons to Have Guns, But Not Votes."

With the help of Westlaw, I have done a way-too-quick review of Judge Barrett's sentencing work on the Seventh Circuit, and I did not find any cases nearly as intriguing or as telling as Kanter (which I blogged about here when it was first handed down).  I would welcome input from readers (and especially from any Seventh Circuit sentencing litigants) about whether Judge Barrett seems to follow in the footsteps of her former boss Justice Scalia on most criminal justice matters.  

Notably, Justice Scalia was a pretty reliable vote against capital defendants during his three decades on the Court, but Judge Barrett's most notable work on the death penalty came decades ago in the form of a co-authored law review article published while she was a law clerk on the DC Circuit.  Specifically, now-Judge Barrett co-wrote an article back in 1998, titled Catholic Judges in Capital Cases, which explores whether and how Catholic judges can and should be involved in enforcing the death penalty as members of the judiciary.  That article runs 48 pages and has much nuance, and I suspect it will get read closely by lots of folks in the days ahead. 

September 27, 2020 in Who Sentences | Permalink | Comments (0)