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October 9, 2020

Week ending round-up of recent headlines and commentary on criminal justice issues

Busy days on various fronts (and great distractions) has again meant I have lacked the  time blog at length about a number of noteworthy recent news pieces and commentaries.  So I will again seek to make up for limited time with an end-of-week round-up of headlines and links:

October 9, 2020 in Recommended reading | Permalink | Comments (0)

"Addressing Trauma and Victimization in Women’s Prisons"

The title of this post is the title of this notable new research report from folks at the Urban Institute. The full 58-page report is available here, and here is the abstract from this report page:

Women are the fastest-growing incarcerated population in the United States.  Despite this drastic increase, correctional institutions often lack awareness and understanding of the victimization that many — if not most — incarcerated women experience before incarceration (Bloom 2015).  Many women bring past trauma into prison settings, where they often experience similar violence, abuse, and trauma.  In 2017, the National Institute of Justice funded the Urban Institute — and its partners the Center for Effective Public Policy, the Correctional Leaders Association, and the National Center for Victims of Crime — to conduct a national scan of practice to examine the extent to which correctional facilities provide services and programming that address incarcerated women’s prior and current trauma and victimization experiences.

The scan of practice drew on data from semi-structured interviews with leaders in 41 state departments of corrections (DOCs), 15 women’s prisons using innovative and/or comprehensive approaches to address trauma, case studies of three women’s facilities and a national survey of state domestic violence (DV) and sexual assault (SA) coalitions. Analyses suggest wide variation in how DOCs address women’s past victimization and trauma with most DOCs relying on programming and partnerships with local victim services providers or other community-based organizations to address women’s trauma; few provide robust victim services to incarcerated women.  We discuss these and other findings in the report along with the challenges DOCs face in addressing women’s prior trauma and victimization, and recommendations for how to make correctional facilities more trauma responsive.

October 9, 2020 in Prisons and prisoners, Race, Class, and Gender | Permalink | Comments (0)

The new death penalty: COVID has now killed as many US prisoners as has a quarter century of capital punishment

I am sad to report that we are approaching yet another stunning milestone in COVID prisoner deaths, which prompts another one of my series of "new death penalty" posts.  The Marshall Project is continuing with the critical job of keeping an updated count via this webpage of deaths from coronavirus reported among prisoners, and as of the morning of Thursday, October 8, this accounting had tabulated "at least 1211 deaths from coronavirus reported among prisoners." 

As I have said in other posts, this considerable and ever-growing number is sad and disconcerting on its own terms, but it is even more remarkable given that it amounts to roughly the same number of prisoner deaths resulting from carrying out formal death sentences in the United States for the entire period from 1996 to 2020.  According to DPIC data, there were a total of 1213 executions from the start of 1996 through today.

Of course, as I have mentioned before, 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 vast majority of prisoners to die of COVID were not criminally 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 older 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 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 Marshall Project reports "at least 85 deaths from coronavirus reported among prison staff."  I remain pleasantly surprised that this too-big number is not even larger, but I will be ever troubled by the thought that all these COVID casualty numbers could have been lower if more aggressive depopulation efforts were taken to move the most vulnerable and least risky persons out of the super-spreader environment that prisons represent.

A few of many prior related posts:

October 9, 2020 in Death Penalty Reforms, Prisons and prisoners | Permalink | Comments (1)

October 8, 2020

"Decarceration and Default Mental States"

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

This Essay, presented at “Guilty Minds: A Virtual Conference on Mens Rea and Criminal Justice Reform” at ASU’s Sandra Day O’Connor College of Law, examines the politics of federal mens rea reform legislation.  I argue that current mens rea policy debates reflect an overly narrow vision of criminal justice reform.  Therefore, I suggest an alternative frame through which to view mens rea reform efforts — a frame that resonates with radical structural critiques that have gained ground among activists and academics.

Common arguments for and against mens rea reform reflect a belief that the problem with the criminal system is one of miscalibration: To the reform proponents, criminal law, incarceration, and the institutions of the U.S. criminal system are necessary for dealing with “real criminals,” but overcriminalization, strict liability crimes, and sloppily drafted statutes cause undeserving and “otherwise law-abiding” people to suffer.  To reform opponents, the criminal system might be flawed (see, e.g., the War on Drugs, racial disparities, police violence, etc.), but that doesn’t mean it is illegitimate or without important uses.  The brutalities of the system’s treatment of marginalized people don’t indicate an irredeemable system; rather, prosecutors could right the balance by shifting their attention to the wealthy and “white collar” offenders, and lawmakers and judges could grease the wheels of these prosecutions by reducing the burden on prosecutors to prove mens rea elements.  Arguments from opponents and proponents offer little to commentators who see the problems with the criminal system as deeper or more intractable — problems of structure, rather than scope.

Ultimately, therefore, I offer a different frame for mens rea reform and for understanding the stakes of the debate that might resonate with more radical critics.  I suggest that mens rea reform can be analogized to the rule of lenity and the libertarian or anti-statist aspects of the Bill of Rights — these rules are not solely focused on sorting the guilty and the innocent; rather, I suggest, they can be viewed as “anti-criminalization” rules, directives to put a thumb on the scale in favor of defendants and against the state, state violence, and criminal punishment.  Framed in this way, I argue that mens rea reform should be appealing to commentators concerned about mass incarceration, state violence, and the sweeping reach of criminal law and its enforcement.  Perhaps more provocatively, I also argue that mens rea reform could be understood as consistent with more radical calls for abolition or dismantling of the carceral state.

October 8, 2020 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (0)

Additional accountings of Judge Barrett's Seventh Circuit criminal justice work

Lauren-Brooke Eisen and Alia Nahra have this review of some of Judge Barrett's rulings in criminal cases over at the Brennan Center.  The piece's full title highlights its overall themes: "Amy Coney Barrett’s Judicial Record in Criminal Justice Cases: Although the Supreme Court nominee has often written opinions that don’t advance the claims of some criminal defendants and incarcerated people, she may be more receptive to supporting privacy rights and gun rights."  And here is how the discussion gets started:

If Amy Coney Barrett joins the Supreme Court, she could tip the balance on a host of major issues. And at a time of renewed reckoning across the nation to address America’s long history of racial injustice, the Court will likely soon consider issues related to criminal justice, such as claims against excessive police force and the ability to sue law enforcement officials.

Although it can be difficult to predict how a nominee may rule on future issues given the individualized nature of each case, Barrett has publicly aligned herself with her mentor, the late Justice Antonin Scalia. Like him, Barrett is an originalist, meaning she seeks to apply the Constitution according to her understanding of what the Framers intended it to mean. When accepting her nomination she said, “His judicial philosophy is mine, too — a judge must apply the law as written.”

Scalia, in his time on the bench, held tightly to his originalist beliefs. He ardently defended the death penalty (even in the cases of juveniles), and he penned the Court’s majority opinion on the Sixth Amendment's Confrontation Clause in Crawford v. Washington, which provided additional protection to criminal defendants. In that case, the Court ruled that prior statements to law enforcement by witnesses who are not available to testify in court cannot be presented as evidence unless the defendant's lawyer has an opportunity to cross-examine that person.

In Barrett’s short time on the bench, she has written several opinions that shed light on where she may fall on criminal justice issues if elevated to the high court. As a recent addition to the Seventh Circuit Court of Appeals, confirmed in October 2017, some of her views become clear through her dissents, and less so in cases where she joined her colleagues in three-judge opinions.

And over at Empirical SCOTUS, Adam Feldman has this empirical look at Judge Barrett's judicial record under the title "A Comprehensive Look at Judge Amy Coney Barrett."  Here is an excerpt:

Like all court of appeals judge, the majority of panels Barrett participated in while on the circuit that lead to written opinions ended up in orders.  Most of the orders judges release are in criminal cases and as tends to be par for the course, Barrett ended up deciding more criminal sentencing cases than any other case type.  Civil rights cases were the second most common and many of these had to do with prisoners’ treatment while in jails.  Interestingly though, when summed up, civil liberties decisions were as common as criminal decisions at 141 apiece.

Prior related posts:

October 8, 2020 in Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"A Willful Choice: The Ineffective and Incompassionate Application of Wisconsin’s Criminal Laws in Combating the Opioid Crisis"

The title of this post is the title of this paper recently posted to SSRN authored by Emily O'Brien. Here is its abstract:

Wisconsin’s drug-induced homicide law, known as the Len Bias law, was intended to prosecute for-profit drug dealers and was rarely charged for several decades after it was enacted in 1986.  In recent years, prosecutors have brought hundreds of Len Bias charges in response to opioid deaths.  Often, these charges are brought against overdose victims’ friends and family members — people who are also mired in addiction and who shared or helped obtain the fatal drug.  In contrast, Wisconsin’s Good Samaritan overdose law (GSOL), enacted in 2014, focuses on harm reduction.  If a person calls for help when another person is overdosing, the law provides both people with some insulation from prosecution of a range of drug-related charges.  These laws approach the problem of overdose death from very different angles: The Len Bias law punishes addicts for their role in overdose deaths, while the GSOL offers addicts protection from prosecution in order to encourage calls for medical intervention in overdose situations.  Unfortunately, the current implementation of the Len Bias law diminishes the potential of GSOL to save lives because addicts are faced the possibility of a homicide charge when they summon help for an overdose victim.

With the rise of lethal synthetic opioids in Wisconsin, the criminal justice system must adjust its current laws and practices in order to reduce overdose deaths.  The criminalization of addiction represented by the Len Bias law thwarts rehabilitation efforts, miring addicts in a cycle of incarceration and drug use that ends with death in too many cases.  This Comment proposes a solution: separating addicts from for-profit drug dealers in the eyes of the law by implementing a joint-user defense in Len Bias cases. Addicts are more likely to use opioids with other addicts than alone.  By removing the possibility of a homicide conviction, addicts will more readily utilize the GSOL and call for medical intervention when a fellow addict is overdosing. Additionally, separating addicts from dealers allows the Len Bias law to be charged in accordance with its intended purpose, while freeing up investigatory and prosecutorial resources for the more complex task of investigating commercial drug dealers and disrupting the drug trade.  This proposed solution would begin to align Wisconsin’s criminal laws with the state’s rehabilitation-focused public health efforts at combating opioid addiction in communities and reducing overdose deaths.

October 8, 2020 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (0)

Federal prison population hits new modern law at 155,197 according to BOP reporting

Regular readers know that I have been closely watching COVID-era changes in the federal prison population because of dramatic declines in the federal Bureau of Prisons' weekly updated "Total Federal Inmates" numbers.  At the start if the COVID era, the reported federal prison population was around 175,000.  But, as I highlighted in a series of prior posts, according to BOP's reporting, most weeks through much of the spring the federal prison population shrunk around or over 1,000 persons per week.  Into and through the summer months, weekly declines continued but at a rate closer to about 500.  Roughly a month ago, as reported in this post, the BOP reported "Total Federal Inmates" was down to 155,483; but then, as noted here, the BOP reported federal prison population ticked up a few hundred persons the following week for first time in COVID era.

Today, checking the new BOP numbers at this webpage report "Total Federal Inmates" shows seemingly a new modern population low at 155,197.  So, though it seems weekly federal prison population declines are no longer consistent or dramatic, we still seem to be experiencing small decreases many weeks and thus it is possible we have not yet hit "the bottom" as to COVID era federal prison population declines.   

I have wondered repeatedly in these posts whether COVID-delayed sentencings or stalled federal prison transfers or any number of other factors may largely account for these declines.  But a persistent lack of any real-time sentencing data from the US Sentencing Commission and the opaque nature of BOP data make it hard for me to be sure just what these weekly reported population numbers represent.  I remain hopeful that we may eventually get some timely sentencing data from the USSC, but I am not optimistic it will ever be easy to fully understand and account for all the ways the the federal criminal process and prison populations have been impacted by and are adjusting to the COVID era.

A few of many prior related posts:

October 8, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

October 7, 2020

Documenting the (unsurprising) lack of compassion from federal prison officials when considering COVID-era compassionate release requests

The Marshall Project has this lengthy new piece reporting on an old story, namely the utter failure of federal prison officials to discharge effectively their "compassionate release" responsibilities by helping to identify prisoners who ought to have their prison sentences reduced due to serious illness or other compelling factors.  The full piece is worth a full read; it is fully headlined: "Thousands of Sick Federal Prisoners Sought Compassionate Release.  98 Percent Were Denied.  Wardens blocked bids for freedom as COVID-19 spread behind bars, data shows."  Here are a few excerpts, with commentary to follow:

Data recently obtained by The Marshall Project underscores what attorneys, advocates and experts have long suspected: As the pandemic ramped up, federal prison wardens denied or ignored more than 98 percent of compassionate release requests, including many from medically vulnerable prisoners like Neba.  Wardens are the first line of review; ultimately, compassionate release petitions must be approved by a judge.  Though the Bureau of Prisons has previously posted information about the number of people let out on compassionate release, it wasn’t clear until now just how many prisoners applied for it or how frequently wardens denied these requests despite widespread calls to reduce the prison population in the face of the pandemic....

Of the 10,940 federal prisoners who applied for compassionate release from March through May, wardens approved 156.  Some wardens, including those at Seagoville in Texas and Oakdale in Louisiana, did not respond to any request in that time frame, according to the data, while others responded only to deny them all.  Higher-ups in Washington, D.C., reviewed 84 of the warden approvals and overturned all but 11.  Time and again, the only way prisoners were able to win compassionate release was to take the bureau to court to fight the wardens' denials.

For dozens of people stuck behind bars, the virus has proved fatal; so far, 134 federal prisoners have died of COVID-19, and more than 15,800 have fallen ill. A statement from the Bureau of Prisons did not address specific questions, including why some wardens failed to respond to release requests. The wardens referred questions to the bureau.

At Elkton, an early hot spot in Ohio where nine prisoners died of COVID-19 and more than 900 got sick beginning in March, the warden denied 866 out of 867 requests for compassionate release between March 1 and May 31.

In California, the prison at Terminal Island became the site of a major outbreak, with 694 prisoners testing positive by the end of May. But the warden only approved five of the 256 compassionate release requests filed by that time.  At Butner, a four-prison complex in North Carolina where 25 prisoners and one correctional officer died in May and June, officials approved 29 of 524 requests by the end of May.

At some prisons, the low number of requests raised questions about the bureau’s recordkeeping.  For example, at the Oakdale complex, an early hot spot in Louisiana where eight prisoners have died, officials reported just 95 compassionate release applications by the end of May out of a population of more than 1,700. The warden took action on none of them. At the same time, the prison racked up 191 positive cases.  Likewise at Forrest City, a two-prison complex in Arkansas where more than 700 men fell ill, officials reported only three applications by the end of May.  All three were approved.

For more than a dozen institutions, including all 11 of the privately run federal prisons, the bureau listed no compassionate release requests at all.  “The numbers seem incorrect,” said Somil Trivedi, a senior staff attorney with the American Civil Liberties Union, who has helped coordinate lawsuits against federal prisons. “I just don’t feel like they’re counting them all.  This has to be an undercount because of the informal nature of the process.”

I am very pleased to see the Marshall Project seek to marshal this data, and I would have been shocked if the data showed anything else about how federal prison officials responded to compassionate release requests.  Congress through the FIRST STEP Act wisely altered the process for these requests to authorize prisoners to directly motion courts for a sentence reduction (often called "compassionate release") because federal prison officials had so badly failed for decades to effectively discharge their "compassionate release" responsibilities.   In the past, many hundreds of inmates had died before prison officials would even respond to requests, and Congress should be widely praises for its wise decision to now allow prisoners to motion courts directly after first making the request to prison officials.

That said, the challenges of collecting these data and keeping them updated serves as a reminder that the FIRST STEP Act did not fix everything.  As long known by those involved in this system, the federal BOP still needs to be subject to considerably more independent oversight and reporting requirements.  BOP's overall lack of accountability and transparency was bad enough in normal times, especially since the BOP has been the nation's largest incarcerator for the better part of two decades.  In the COVID era, the federal prisons bureau should be doing a whole lot better and that really seem to now require significant structural change.

That all said, any doom and gloom about federal prison officials can and should be tempered by the broader success stories in the arena of sentence reductions (often called "compassionate release") under 3582(c), and this overall success is usefully documented in real time by the BOP.  Though the BOP does not discuss motions denied of any particulars, the BOP does helpfully report at this FSA page the total number of granted post-FIRST STEP Act "Compassionate Releases / Reduction in Sentences."  As of this writing, that number stands at 1752 (and is up over 250 in just the last month since I blogged on this topic here). 

As detailed in this post, the US Sentencing Commission has reported that in the year before FIRST STEP only 24 persons got their sentenced reduced; in the year after FIRST STEP became law, that number of sentence reductions rose to 145.  Doing the math, this all means that in the COVID era there have already been over 1600 sentence reduction motions granted (meaning roughly 80 times as many as pre-FIRST STEP and 11 times as many as post FIRST STEP/Pre-COVID)!  

A few of many prior related posts:

October 7, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Should we be rooting for or against some criminal justice discussions during the VP debate?

The question in this title of this post is my sincere question as I think about tonight's scheduled debate between the 2020 vice presidential candidates, current VP Mike Pence and Senator Kamala Harris.  Especially after the many ugly dimensions of last week's Prez election debate, I find myself wondering too much about whether we can even have effective civil discourse in this nation.  That depressing fundamental concern aside, it is perhaps worth recalling that almost exactly four years ago at the last VP debate, then-Gov Pence advocated for national criminal reform in this exchange (as reported in my Oct 2016 blog posting with my emphasis added):

[Moderator] QUIJANO:  Your fellow Republican, Governor Pence, Senator Tim Scott, who is African-American, recently spoke on the Senate floor.  He said he was stopped seven times by law enforcement in one year....  He said, "I have felt the anger, the frustration, the sadness, and the humiliation that comes with feeling like you're being targeted for nothing more than being just yourself."  What would you say to Senator Scott about his experiences?

PENCE:  Well, I have the deepest respect for Senator Scott, and he's a close friend.  And what I would say is that we — we need to adopt criminal justice reform nationally.  I — I signed criminal justice reform in the state of Indiana, Senator, and we're very proud of it.  I worked when I was Congress on a second chance act.  We have got to do a better job recognizing and correcting the errors in the system that do reflect on institutional bias in criminal justice.

I would love a four-years-later follow up question to now-VP Pence that explores whether he thinks the Trump Administration has been doing "a better job recognizing and correcting the errors in the system that do reflect on institutional bias in criminal justice."  That said, if there are questions focused on criminal justice issues in this VP debate, we might expect that they may be first directed toward Senator Harris given her long (and somewhat controversial) record on these issues resulting in part from her service as a local prosecutor and then Attorney General in California.

In this post some weeks ago, I made a pitch for an entire Prez debate focused on criminal justice issues.  Now I am finding myself just hoping for a debate that does not make me sick. The question in the title of this post is driven by the fact that I am sincerely not sure if the candidates ignoring or discussing these issues tonight are more or less likely to be nauseating.

A few prior recent related posts:

October 7, 2020 in Campaign 2020 and sentencing issues, Who Sentences | Permalink | Comments (0)

Notable perspectives from the Prairie State on "Principles to Build a More Equitable Criminal Justice System"

I just noticed, and found quite notable, this new press release from yesterday coming from the Illinois Governor's office.  The document is fully titled "Gov. Pritzker Proposes Principles to Build a More Equitable Criminal Justice System: Criminal Justice Reform Principles Aim to Modernize Criminal Code, End Cycles of Recidivism, and Increase Police Accountability."  I'd recommend the lengthy document in full, and here is the statement of "seven principles for an equitable criminal justice system" that are at the heart of the document (with bolding in the original):

The seven principles for an equitable criminal justice system are the following:

• End the use of the cash bail system and limit pretrial detention to only those who are a threat to public safety. The governor remains committed to ending a system that disproportionately forces low-income families and people of color into a disruptive cycle of unearned detention and instability.  The cash bail system would be replaced by a risk assessment to determine the likelihood of a defendant's appearance at trial and if there is a threat to public safety posed by a defendant's pre-trial release.
 
• Modernize sentencing laws on theft and drug offenses and use a public health approach to address mental health and addiction. Illinois will decrease unnecessary admissions into prison, match modernized sentencing standards across the country, and limit criminal justice system involvement for non-violent offenders who need and would benefit from a public health intervention. 
 
• Reduce excessive lengths of stay in prison by providing pathways for people to earn opportunities for rehabilitation. The state will increase access to sentence credit and time-limited supervised release while limiting penalty enhancements and short-term commitments that disproportionately trap low-income families and people of color in generational cycles of incarceration.
 
• Prioritize rehabilitation and reduce the risk of recidivism by increasing access to housing and healthcare for returning residents.  The state is committed to expanding opportunities, supports, and services for people who are exiting the prison system so that they are set up to succeed upon return to their communities, and which will save taxpayers money by reducing the number of people trapped in a cycle of recidivism. 
 
• Increase police accountability and transparency for police officers and police departments. Illinois will set the standard for the nation in professionalizing and setting statewide standards for police officers.  We will advocate for licensing of police officers, strengthen the role of the State Police Merit Board, work alongside police departments to ensure compliance and proper use of body-worn cameras, create a state-level avenue to investigate systemic police misconduct, and remove barriers for civilians to report officer misconduct, like the signed affidavit requirement.
 
• Update and strengthen statewide standards for use of force by police officers. Illinois is committed to modernizing the legal standard for use of force and implementing common sense policies and trainings that are consistent with best practices and will improve police-community relations.  This includes requiring police officers to apply first aid after using force, prohibiting no-knock search warrants, requiring the use of de-escalation techniques, and requiring officers  to intervene and report when excessive force is used by another officer. 
 
• Improve interactions with police by decriminalizing minor non-violent offenses, improving police response to crowd control, and increasing language and disability access.  By decriminalizing minor non-violent offenses, creating policies and trainings for police response to non-violent crimes and protests, and increasing language and disability access for civilians, Illinois will establish a framework to improve community safety and trust.  

October 7, 2020 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

October 6, 2020

Feds officially seek SCOTUS certiorari to review First Circuit's reversal of Boston Marathon bombers death sentence

As reported in this Boston Globe piece, "Federal prosecutors on Tuesday formally filed their request for the US Supreme Court to review an appeals court ruling in July that threw out the death penalty in the case against Boston Marathon bomber Dzhokhar Tsarnaev." Here is more (links from the original):

The 424-page request, known as a writ of certiorari, raises two questions for the high court to consider.

First, it asks whether the District Court should have allowed “evidence that respondent’s older brother was allegedly involved in different crimes two years before the offenses for which respondent was convicted.”

Second, the document asks whether the federal appeals court that overturned Tsarnaev’s death sentence made a mistake in concluding that the District Court should have asked “each prospective juror for a specific accounting of the pretrial media coverage that he or she had read, heard, or seen about respondent’s case.”...

The move by prosecutors comes after the US Court of Appeals for the First Circuit on July 31 issued a 182-page ruling that infuriated some survivors, finding that George A. O’Toole Jr., who presided over Tsarnaev’s high-profile 2015 trial in US District Court in Boston, “did not meet the standard” of fairness while presiding over jury selection....

With their filing Tuesday, prosecutors formally asked the Supreme Court to take up the matter. If the high court, which agrees to hear only a fraction of the cases submitted to the panel for review each year, does review the case, it could affirm the appellate decision or reverse it, reinstating Tsarnaev’s death sentence.  Tsarnaev, now 27, remains incarcerated at a federal supermax prison in Colorado. 

Prior recent related posts:

October 6, 2020 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

New AP report details lack of diversity in Trump Administration's picks for US Attorneys

The role and significance of prosecutors has become an area of growing interest and analysis among criminal justice scholars and advocates.  So this new AP piece, headlined "Trump’s top federal prosecutors are overwhelmingly white men," should be of interest for many reasons and to many people.  Here are a few excerpts:

The nation’s top federal prosecutors have become less diverse under President Donald Trump than under his three predecessors, leaving white men overwhelmingly in charge at a time of national demonstrations over racial inequality and the fairness of the criminal justice system.

The Associated Press analyzed government data from nearly three decades and found that a persistent lack of diversity in the ranks of U.S. attorneys has reached a nadir in the Trump administration.  Eighty-five percent of his Senate-confirmed U.S attorneys are white men, according to AP’s analysis, compared with 58% in Democratic President Barack Obama’s eight years, 73% during Republican George W. Bush’s two terms and at most 63% under Democrat Bill Clinton.

White men lead 79 of the 93 U.S. attorney’s offices in a country where they make up less than a third of the population. Nine current U.S. attorneys are women.  Two are Black, and two Hispanic....

The enduring imbalance leaves U.S. attorneys looking less like the people they serve, and is in stark contrast to the population of federal prisons, where a disproportionate share of those incarcerated are Black....

White House spokesman Judd Deere did not answer questions about the diversity of U.S. attorneys under Trump’s watch, but said in a statement that the administration has “worked closely with U.S. Senators to identify the best candidates to serve as the chief law enforcement officer in their districts back home, and we are very proud of the work that they are doing to keep all Americans safe.”...

A lack of diversity has long been an issue throughout the federal law enforcement and criminal justice systems.  In some places it’s grown more acute under Trump.  Then-FBI Director James Comey said in 2016 that the bureau’s failure to recruit more minorities had become “a crisis.” In the U.S. Drug Enforcement Administration, recent court filings show 8% of the agency’s more than 4,000 special agents are Black while about 77% are white.

An AP analysis also found nearly 86% of the 206 federal judges confirmed to lifetime positions under Trump have been white — the highest rate of white judicial appointments since George H.W. Bush’s presidency.  Two-thirds of Trump’s judicial appointees have been white men; fewer than a quarter have been women.

And at the top of the Justice Department, Trump’s two attorneys general — Barr and Sessions — are also white.  That compares with the past three administrations in which Black people, a Latino man and the first female attorney general served as the nation’s top law officer.

October 6, 2020 in Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Collateral Consequences Resource Center releases "The Reintegration Report Card"

The title of this post is the title of this notable new report by Margaret Love and David Schlussel of the Collateral Consequences Resource Center.  Here is this detailed report's introduction:

This Report Card supplements our recently published 50-state report, “The Many Roads to Reintegration,” a survey of U.S. laws aimed at restoring rights and opportunities after arrest or conviction.  That report includes topical essays covering voting and firearms rights, an array of record relief remedies, and consideration of criminal record in employment and occupational licensing.

The “Many Roads” report assigned to each state, D.C., and the federal system a grade for nine different types of restoration laws:

  1. loss and restoration of voting rights
  2. pardon
  3. felony expungement, sealing & set-aside (“felony relief”)
  4. misdemeanor expungement, sealing & set-aside (“misdemeanor relief”)
  5. non-conviction relief
  6. deferred adjudication
  7. judicial certificates of relief
  8. employment
  9. occupational licensing.

Using these grades, we produced an overall ranking of the states and D.C. In this Report Card we provide the grades and rankings in an easily digestible form.

We also provide a brief narrative summary of how each state’s law stacks up in the different categories.  Our hope is that these summaries will suggest ways in which a state might improve its laws and hence its ranking. An appendix collects all the grades and rankings.

Finally, we emphasize once again that our grades are based solely on the text of each state’s law, leaving more nuanced judgments about their actual operation to practitioners, researchers, and the law’s intended beneficiaries.  We expect to look more closely at the operation of some of the record relief laws in the near future, and welcome comments and suggestions from those who have experience with them.  In the meantime, we hope our grades will challenge, encourage, and inspire additional reforms in the months and years ahead.

For more details and legal citations for each state, see the Restoration of Rights Project.  For essays surveying each topic, consult “The Many Roads to Reintegration.”

October 6, 2020 in Collateral consequences, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

October 5, 2020

"Remote Criminal Justice"

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

The coronavirus pandemic has forced courts to innovate to provide criminal justice while protecting public health. Many have turned to online platforms in order to conduct criminal proceedings without undue delay.  The convenience of remote proceedings has led some to advocate for their expanded use after the pandemic is over.  To assess the promise and peril of online criminal justice, I surveyed state and federal judges, prosecutors, and defense attorneys across Texas, where virtual proceedings have been employed for a range of criminal proceedings, starting in March 2020.  The survey responses were supplemented with direct observations of remote plea hearings and the first criminal jury trial conducted via Zoom.

The survey responses paint a complicated picture.  They suggest that, on the whole, online proceedings can save time and resources for the participants in criminal cases and can provide broader access to the courts for the public.  Yet respondents also noted the dangers of remote justice, particularly in contested or evidentiary hearings and trials.  These include the inability of the parties to present evidence and confront witnesses effectively, and the challenges of providing adequate legal assistance remotely.  Respondents also expressed concern that the court’s perception of defendants may be negatively skewed by technology and that indigent defendants might be disproportionately harmed by the use of remote hearings. Defense attorneys were especially likely to be concerned about the use of the online format and to believe that it tends to harm their clients.  Federal judges and prosecutors were also more likely than their state counterparts to be skeptical of the benefits of online criminal proceedings outside the context of the pandemic.

Based on the survey responses, an analysis of scholarship and case law, and first-hand observations of virtual criminal proceedings, the Article concludes with several recommendations about the future use of online criminal justice.  It argues that states should be wary of expanding the use of remote proceedings after the pandemic is over.  Online technology could be used more broadly to conduct status hearings and hearings on questions of law and to increase the frequency of attorney-client consultations.  Beyond these narrow circumstances, however, remote hearings post-pandemic should be used only sparingly, as they carry too many risks to the fairness of the proceedings.  If jurisdictions make the choice to use virtual proceedings in circumstances beyond status hearings and legal arguments, this should be done only after obtaining an informed and voluntary consent from the defendant, and with great care taken to reduce the risks of unfairness and unreliable results.

October 5, 2020 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Technocorrections | Permalink | Comments (0)

REMINDER Call for Papers: "Understanding Drug Sentencing and its Contributions to Mass Punishment"

I am going to regularly remind folks of this recent call for papers relating to an exciting event I am excited to be involved in helping to plan, "Understanding Drug Sentencing and its Contributions to Mass Punishment."  Here is the full call, which is also available as a full pdf document at this link:

INTRODUCTION
Discussion of the “war on drugs” frequently fails to examine precisely how drug offenders are sentenced — and how they should be.  Drug sentencing practices are implicated in many fundamental criminal justice issues and concerns.  Research suggests incarcerating people for drug offenses has little impact on substance use rates or on crime rates more generally.  And, despite reports of comparable use rates, people of color are far more likely to be arrested and incarcerated for drug-related offenses than white counterparts.  Mandatory minimum sentencing statutes are applied commonly, but inconsistently, in drug cases and for persons with a criminal history that involves drug offenses. And while states have created specialty courts to handle the cases of low-level drug offenders, the efficacy and appropriateness of the “drug court movement” has long been subject to debate.

Distinct state and federal realities complicate our understanding of the relationship between the drug war and punishment. Nearly all federal drug defendants get sent to prison and nearly 50% of the federal prison population is comprised of drug offenders; relatively few state drug offenders are sent to prison and less than 20% of state prisoners are serving time on drug charges.  But data on arrests, jail populations, and community supervision highlight the continued, significant impact drug cases still have on state and local justice systems.  The role of drug criminalization and sentencing contributes to mass incarceration, yet mass punishment can look quite different depending on the criminal justice system(s) and the drugs.


ABOUT THE CALL
These issues and others related to drug sentencing will be part of a symposium jointly sponsored by the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law and the Academy for Justice at the Arizona State University Sandra Day O'Connor College of Law.  "Drug Sentencing and its Contributions to Mass Punishment," will take place on June 10–12, 2021, at The Ohio State University Moritz College of Law in Columbus, Ohio. As part of this symposium, we invite scholars to submit papers for inclusion in the workshop scheduled for June 12.  Accepted submissions will be paired with a discussant who will review and provide feedback on the paper during the workshop.  Each paper should reflect on some aspect of drug prosecutions and sentencing in the United States.  Participants should have a draft to discuss and circulate by May 17, 2021.  The papers will be gathered and published in a Spring 2022 symposium edition of the Ohio State Journal of Criminal Law, a peer-reviewed publication.  Participants should have a completed version to begin the publication process by August 15, 2021.  Final papers may range in length from 5,000 – 20,000 words.

Deadline for submission is November 1, 2020. Please submit a title and an abstract of no more than 300 words to Jana Hrdinová at hrdinova.1@osu.edu. Accepted scholars will be notified by December 1, 2020

October 5, 2020 in Drug Offense Sentencing | Permalink | Comments (0)

"Decarceration and community re-entry in the COVID-19 era"

The title of this post is the title of this new piece by multiple authors published in The Lancet Infectious Diseases.  Here is its "Summary":

Jails and prisons are exceptionally susceptible to viral outbreaks, such as severe acute respiratory syndrome coronavirus 2.  The USA has extremely high rates of incarceration and COVID-19 is causing an urgent health crisis in correctional facilities and detention centres.  Epidemics happening in prisons are compounding the elevated risks that COVID-19 poses to people of colour, older people, and those with comorbidities.  Intersectoral community re-entry efforts in the USA and other countries have shown that releasing people from correctional facilities as a pandemic-era public health intervention is safe and can support both public safety and community rebuilding.  Therefore, substantial decarceration in the USA should be initiated.  A point of focus for such efforts is that many people in prison are serving excessively long sentences and pose acceptable safety risks for release.  Properly managed, correctional depopulation will prevent considerable COVID-19 morbidity and mortality and reduce prevailing socioeconomic and health inequities.

October 5, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Justice Sotomayor issues a couple of notable (and notably solo) statements in lengthy order list kicking off new SCOTUS Term

For the third time in five years, the US Supreme Court has officially started its new Term with only eight sitting Justices.  That fact, and so much other news from other branches, perhaps helps to explain why I sense today's start of a new SCOTUS Term has received a little less fanfare than usual.  In this space, I know I have not yet been moved to give the start of the new Term all that much attention; this is partially because there are only a few notable sentencing cases on the docket right now which won't be argued until November, and partially because no criminal cases were added to the docket via this order list after the Court's long conference last week.  I sense that the Justices are collectively inclined to "lay low" at least until we get through the election and/or an additional Justice is confirmed.

That said, when it comes to the criminal side of the SCOTUS docket, Justice Sotomayor seems disinclined to ever lay low, and so I was not too surprised that she had a few statements about the denial of certiorari at the end of this lengthy new SCOTUS order list.  After a few remains and procedural matters, this order list is consumed with nearly 50 pages of cases in which cert or habeas or rehearing is denied.  But the last nine pages of the list has Justice Sotomayor making two statements respecting the denial of certiorari

In Kaur v. Maryland, No. 19–1045, Justice Sotomayor's 5-page statement begins and ends this way:

Although I join the Court’s decision to deny certiorari, I write separately to address a concerning feature of this petition: The prosecutors who tried this case had extensive knowledge of defense counsel’s confidential communications with the defendant, petitioner Raminder Kaur.  For the reasons stated below, I fear that, in this case, the criminal justice system failed to live up to its highest ideals....

Prosecutors wield an immense amount of power, and they do so in the name of the State itself.  That unique privilege comes with the exceptional responsibility to ensure that the criminal justice system indeed serves the ends of justice.  Prosecutors fall short of this task, and therefore do a grave disservice to the people in whose name they litigate, when they permit themselves to enjoy unfair trial advantages at defendants’ expense.  Here, regardless of the reason for their acquisition of Kaur’s privileged information, and regardless of whatever minimum conduct was required of them by the Sixth Amendment, the prosecutors should have recused themselves from participating in Kaur’s second trial as a matter of professional conscience.  Their failure to do so casts a troubling and unnecessary shadow over Kaur’s conviction and sentence to life imprisonment.

In Henness v. DeWine, No. 20–5243, Justice Sotomayor's 4-page statement concerns Ohio's long-running lethal injection litigation, and includes these statements:

I write to address the Sixth Circuit’s novel and unsupported conclusion that pain is constitutionally tolerable so long as it is no worse than the suffering caused by a botched hanging....  The Sixth Circuit thus appears to have created a categorical rule that a method of execution passes constitutional muster so long as it poses no greater risk of pain than the slow suffocation of a hanging gone wrong....

The Sixth Circuit erred in enshrining hanging as a permanent measure of constitutionally tolerable suffering.  Its decision conflicts with this Court’s recent precedent, which makes clear that the proper inquiry is comparative, not categorical.  See Bucklew, 587 U. S., at ___ (slip op., at 13); Glossip, 576 U. S., at 878.  Since Glossip, this Court has held that a risk of pain raises constitutional problems if it is “‘substantial when compared to a known and available alternative’” that is “feasible and readily implemented.”  Bucklew, 587 U. S., at ___ (slip op., at 13).  If such an alternative exists, and a State nonetheless refuses to adopt it without a legitimate penological reason, then the State’s chosen method “cruelly” (and unconstitutionally) “superadds pain to [a] death sentence.” Ibid....

Bucklew does not provide a categorical safe harbor for methods of execution that, in a court’s estimation, will cause no greater suffering than that caused by certain traditional methods. See ibid. If there were a feasible and readily implemented method of execution that would prevent petitioner from experiencing a sensation akin to drowning as he dies, it would be cruel and unusual for Ohio to refuse to adopt it.

UPDATE: In the original title of this post, I mistakenly called these statements "dissents" when in fact the are each actually styled as a "statement ... respecting the denial of certiorari."  Even so styled, she notably did not get any other Justice to sign on.

October 5, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

October 4, 2020

Pope Francis' new encyclical clearly condemns the death penalty (as well as life imprisonment)

20201004T0600-POPE-ENCYCLICAL-1006436_vertAs reported in this new article from America, which is headlined "Pope Francis closes the door on the death penalty in ‘Fratelli Tutti’," there are new papal teachings that have much to say about extreme punishments.  Here are the details:

Pope Francis’ new encyclical, “Fratelli Tutti,” does something that some Catholics believed could not be done: It ratifies a change in church teaching. In this case, on the death penalty.

In 2018, Pope Francis ordered a change in the Catechism of the Catholic Church, the official compendium of church teaching, when he termed the death penalty “inadmissible.”  Today the pope placed the full weight of his teaching authority behind this statement: The death penalty is inadmissible, and Catholics should work for its abolition.  A papal encyclical is one of the highest of all documents in terms of its authority, removing any lingering doubt about the church’s belief.

“There can be no stepping back from this position,” says Francis, referring to the opposition to capital punishment expressed by St. John Paul II. “Today we state clearly that ‘the death penalty is inadmissible’ and the Church is firmly committed to calling for its abolition worldwide.”...

In past centuries, the church was generally accepting of the death penalty. Both St. Augustine and St. Thomas Aquinas declared it licit not only for the sake of punishment, but also as a way for the state to protect itself, ideas that took hold in the church and influenced civil society. In the Roman Catechism, written after the Council of Trent in the 16th century, the church supported the death penalty for those two reasons: “Another kind of lawful slaying belongs to the civil authorities, to whom is entrusted power of life and death, by the legal and judicious exercise of which they punish the guilty and protect the innocent.”

As recently as the 1990s, the Catechism of the Catholic Church said that the state could still use capital punishment to protect people from violent criminals: “The traditional teaching of the Church does not exclude, presupposing full ascertainment of the identity and responsibility of the offender, recourse to the death penalty, when this is the only practicable way to defend the lives of human beings effectively against the aggressor.”

In 1995, however, in his encyclical "Evangelium Vitae," St. John Paul II tightened the restrictions, saying that the times that the state needed to use capital punishment to protect other citizens were “very rare, if not practically non-existent.” Four years later, he called for its abolition. So did Pope Benedict XVI, in 2011. The door to the death penalty was gradually closing. Today it was shut. It is a clear example of the development of doctrine over the centuries.

In his new encyclical, Francis also traces a lesser known counternarrative, showing a theological thread that has always been against the death penalty: “From the earliest centuries of the Church, some were clearly opposed to capital punishment,” he writes and includes commentary from St. Augustine, who argued for mercy in the case of two assassins.

In “Fratelli Tutti,” the pope grounds his opposition to capital punishment not only in mercy, perhaps his most characteristic spiritual theme, but also in opposition to revenge. “Fear and resentment can easily lead to viewing punishment in a vindictive and even cruel way, rather than as part of a process of healing and reintegration into society,” he writes.

Moreover, he bases the teaching in the inviolable dignity of each person—including the person on death row. “Let us keep in mind that ‘not even a murderer loses his personal dignity, and God himself pledges to guarantee this,’” he says, quoting “The Gospel of Life” (“Evangelium Vitae”). Francis continues: “The firm rejection of the death penalty shows to what extent it is possible to recognize the inalienable dignity of every human being and to accept that he or she has a place in this universe.”

Today Pope Francis also condemned life imprisonment, which he calls a “secret death penalty.” George Williams, S.J., who served for many years as a Catholic chaplain at San Quentin Prison in California and worked with inmates on death row, praised the pope’s stance, saying "In nearly 30 years of prison ministry, I have witnessed the soul-killing damage caused by sentencing men and women to life in prison without the possibility of parole. I believe it is crueler to sentence someone to prison with no hope of ever getting out than it would be to execute them outright. Executions kill the body, but life without parole kills the human spirit."

With “Fratelli Tutti” Francis has moved opposition to the death penalty into the foreground of Catholic social teaching, completing the church’s long journey of mercy and reconciliation.

The full text of this new encyclical is available here in English, and the discussion of the death penalty starts at paragraph 263.  Here is the text of subsequent paragraph discussing both the death penalty and life imprisonment and prison reform:

268. “The arguments against the death penalty are numerous and well-known.  The Church has rightly called attention to several of these, such as the possibility of judicial error and the use made of such punishment by totalitarian and dictatorial regimes as a means of suppressing political dissidence or persecuting religious and cultural minorities, all victims whom the legislation of those regimes consider ‘delinquents’.  All Christians and people of good will are today called to work not only for the abolition of the death penalty, legal or illegal, in all its forms, but also to work for the improvement of prison conditions, out of respect for the human dignity of persons deprived of their freedom.  I would link this to life imprisonment… A life sentence is a secret death penalty”.

Because I am not at all a scholar of Catholic teaching or documents, I am not sure if this new encyclical is a consequential new development in what I have long seen as the Catholic Church's modern categorical opposition to capital punishment.  But I am sure this might be one more thing for Senators to consider discussing with SCOTUS nominee Amy Coney Barrett in light of her   co-authored 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.

October 4, 2020 in Death Penalty Reforms, Religion, Who Sentences | Permalink | Comments (1)

"Eligible, but excluded: A guide to removing the barriers to jail voting"

The title of this post is the title of this notable new report released on Friday by the Prison Policy Initiative and the Rainbow PUSH Coalition.  Here is its starting paragraph: 

Most people in jail are legally eligible to vote, but in practice, they can’t.  This “de facto disenfranchisement” stems from numerous factors, including widespread misinformation about eligibility, myriad barriers to voter registration, and challenges to casting a ballot.  Below, we explain who in jail is eligible to vote (state by state), discuss the barriers that keep them from voting, and offer recommendations for advocates, policymakers, election officials, and sheriffs to ensure that people in jail are able to vote.

This AP article discusses the report and provides additional context under the headline "Voting nearly impossible for eligible voters behind bars." Here is an excerpt from the AP piece:

Most of the three-quarters of a million people held in U.S. jails have the right to vote. But many of them are unable to, stymied by misinformation, limited access to registration and ballots and confusion from the officials in charge. The result is widespread voter disenfranchisement, say experts with the Prison Policy Initiative. The advocacy organization released a report detailing voting access for jail inmates with Rainbow PUSH Coalition, a civil rights advocacy group formed by the Rev. Jesse Jackson, on Friday....

[M]ost people in jail haven’t been convicted, but instead are awaiting trial on the charges for which they are being held. While those convicted of a felony lose their right to vote in most states for at least the time they are incarcerated, many of the people serving time in jail are serving time for misdemeanors, and most states allow people with misdemeanor convictions to vote. Very few get to actually exercise that right, the study found. Confusion, logistical barriers and timing issues abound.

October 4, 2020 in Collateral consequences, Prisons and prisoners | Permalink | Comments (1)

Rounding up a few recent headlines and commentary of note for Sunday reads

Busy days on various fronts (and expected distractions by other matters in the coming week) has me concerned I will not find time blog at length about a number of recent news pieces and commentaries that seemed noteworthy.  So I will make up for limited time with a weekend round-up, which will link to the pieces and add a quick hit of comment/link/snark:

October 4, 2020 in Recommended reading | Permalink | Comments (2)