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October 17, 2020

Understanding Proposition 20, the latest chapter of California's experiments with sentencing reform via initiative

I have noticed more than a few recent media pieces about the notable sentencing reform measure on the ballot in California this year, Proposition 20, and here is a sample:

The start of the LA Times piece seems to provide a pretty clear account of the range of complicated state reform realities connected to Prop 20:

As much of the country weighs changes to the criminal justice system, California has had a head start, adopting a series of laws in the last decade that, among other things, helped reduce the state’s prison population by more than one-third, or 50,000 people.

Now a group of prosecutors and law enforcement leaders has placed Proposition 20 on the November statewide ballot, which would expand the list of felonies for which the convicted are ineligible for early parole; increase penalties for repeat shoplifters; and collect DNA samples from adults convicted of some misdemeanors.

Proponents argue that it is needed to fix flaws in past measures that they say are putting the public’s safety at risk, including the early release of potentially violent criminals. But opponents of the measure, who include civil rights leaders, Gov. Gavin Newsom and former Gov. Jerry Brown, say it wrongly rolls back necessary criminal justice reforms as crime has declined in recent years. “California is ahead of the game — we’ve done so many great reforms,” said Assemblyman Jim Cooper (D-Elk Grove), a retired sheriff’s captain and proponent of Proposition 20. “But there have been unintended consequences with these reforms.”

Brown, who led past reform efforts, called the initiative “very inhuman.” He said it takes away hope and incentives for prison inmates to pursue educational opportunities and demonstrate good behavior to improve their chances of getting out early. “Proposition 20 is supported by a very narrow group of people who don’t accept even the modest prison reforms that I was able to achieve,” Brown said. “It’s driven by ideology and, in some cases, by a total lack of understanding of human nature and no sense of redemption or allowing people to put their lives on track. It’s vindictive.”

Brown was governor when the U.S. Supreme Court ruled in 2011 that California’s prisons were overcrowded in violation of constitutional protections.  That year, he signed Assembly Bill 109 into law to reduce the state prison population by requiring that many people convicted of felonies not involving violence or sex offenses serve their sentences in county jails instead of state prison.

In 2014, California voters approved Proposition 47, which reclassified many lower-level drug and property crimes from felonies to misdemeanors.  Before then, thefts could be considered a felony if stolen merchandise was valued at $450 or more, but Proposition 47 raised the threshold to $950.

Proposition 57, which Brown developed and was approved by California voters in 2016, increased parole and good behavior opportunities for those convicted of nonviolent felonies.

The new initiative to be voted on Nov. 3 makes key changes in the previous three laws.

The measure would broaden the list of crimes that make inmates ineligible for early release from state prison through the parole program in Proposition 57, adding 22 offenses, including trafficking a child for sex and felony domestic violence.

The measure also would increase penalties for people who commit multiple thefts, including serial shoplifting, to address a spate of such crimes, and would mandate the collection of DNA samples from adults convicted of crimes newly classified as misdemeanors under AB 109, including forging checks and certain domestic violence crimes.

In addition, Proposition 20 would require the state Board of Parole Hearings to weigh an inmate’s entire criminal history when deciding parole, not just the most recent offense, which was the standard set by AB 109.

The nonprofit, nonpartisan group CalMatters has this helpful page about Prop 20 which includes a two-minute video seeking to summarize the initiative.  This Ballotpedia page on Prop 20 reveals a lot of money has been donated to both the proponents and opponents of this reform, but it does not report on any polling on the topic.  I have seen other reports on polling calling this ballot issue a "coin toss" because of so many undecideds.  In other words, as always seems to be the case, California in Nov 2020 is yet again a state to watch for those interested in the state of criminal justice reform efforts.

October 17, 2020 in Campaign 2020 and sentencing issues, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

"Punishment in Prison: Constituting the 'Normal' and the 'Atypical' in Solitary and Other Forms of Confinement"

The title of this post is the title of this new lengthy article by multiple authors now available via SSRN.  Here is its abstract:

What aspects of human liberty does incarceration impinge?  A remarkable group of Black and white prisoners, most of whom had little formal education and no resources, raised that question in the 1960s and 1970s.  Incarcerated individuals asked judges for relief from corporal punishment; radical food deprivations; strip cells; solitary confinement in dark cells; prohibitions on bringing these claims to courts, on religious observance, and on receiving reading materials; and from transfers to long-term isolation and to higher security levels.

Judges concluded that some facets of prison that were once ordinary features of incarceration, such as racial segregation, rampant violence, and filth, violated the Constitution. Today, even as implementation is erratic and at times abysmal, correctional departments no longer claim they have unfettered authority to do what they want inside prisons walls.  And, even as the courts have continued to tolerate the punishment of solitary confinement in the last decade, a few lower courts have held unconstitutional the profound sensory deprivations such isolation has entailed.

Prisoners have also sought procedural protections to constrain arbitrary decision-making about placements in solitary confinement and transfers to adverse settings.  In response, the Supreme Court has required that, to state a Fourteenth Amendment claim that their liberty had been infringed, prisoners have to demonstrate that a specific practice imposed an “atypical” and “significant hardship.”

What is typical in prisons?  What are the sources of knowledge and the baselines used by Justices to decide?  How did isolation come to be seen as an ordinary incident of prison life?  We answer these questions through analyzing debates in both the U.S. Supreme Court and lower courts about what deprivations in prison are “normal.”  After excavating the conflicts within the Court about the kinds of liberty interests prisoners retained, we mined hundreds of lower court opinions to learn how judges determine when constrictions on human movement meet the test of atypicality and hardship.  By documenting the high tolerance many federal judges have for periods of isolation lasting months, years, and decades, we demonstrate the central role judges play in constructing the “normal” of prisons.

October 17, 2020 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

October 16, 2020

Will some (most? all?) federal prisoners transferred to home confinement be returned to prison after the pandemic ends?

The question in the title of this post is prompted by this new Walter Palvo piece at Forbes headlined "US Attorney States Federal Inmates On Home Confinement Will Return To Prison Once 'Pandemic Is Declared Over'."  Here are excerpts:

It is a fact that the Federal Bureau of Prisons (BOP) has had a difficult time controlling the spread of COVID-19 within its 122 prison facilities located across the country.  As of October 13, 2020, there are over 1,600 active COVID-19 cases among inmates and another 14,000 who were infected but have recovered .... 126 have died.  Prison staff have also been hurt by the virus with 736 currently infected and over 1,200 who have recovered....

On March 26, 2020, Attorney General William Barr’s memo to Bureau of Prisons (BOP) Director Michael Carvajal stated that even more needed to be done and noted that one of the most effective “tools to manage prison population and keep inmates safe is the ability to grant certain eligible prisoners home confinement in certain circumstances.” Since then, the BOP has transitioned over 7,700 inmates to home confinement from prison to complete their sentence. While many of those had under a year remaining on their sentence, some have years to go with release dates of 2024 and beyond.  The expectation of those placed on home confinement was that their sentence would be served under these same conditions, but a case out of the District of Columbia sheds light on what may lie ahead for some who are on home confinement ... that could include a return to prison....

[In litigation over a compassionate release motion] Michael P. McCarthy of the Department of Justice’s Criminal Division Fraud Section [stated in court] ... "the BOP's program [home confinement under the Barr memo], it's a transfer until the end of the pandemic and then a return to prison if the pandemic is declared over."...

While everyone wants an end to the pandemic, those on home confinement may be told that they will be returning to prison ... or they could be asked to be immunized in order to return .... or the inmate could refuse immunization .... or the inmate may have only a few months remaining by the end of the pandemic and might file an appeal.  If people think the courts are bogged down with compassionate release cases now, wait until a return to prison is announced for those on home confinement.

I asked Jack Donson, a retired BOP corrections specialist, about the prospect of such an action.  Donson told me, “Before COVID-19, home confinement was limited to the lesser of 6 months or 10% of the sentence, aside from the Elderly Offender program but the CARES Act removed that cap so we have never had a situation where people were potentially on home confinement for years.  Nobody knows how this will play out but it has been taxing to the BOP to get people out of prison, I can only imagine that it would be even more taxing to get them back in, especially in light of the June 2020, target population reductions in the Low and Minimum security facilities.

Because of the opaque nature of BOP work and data, it is difficult to tell just how many persons have been transferred into home confinement and what percentage of these persons might have long enough still remain on their original sentences to perhaps prompt DOJ to seek their return to prison whenever the pandemic if over.  Sadly, I fear we are still many, many months away from returning to anything we might call post-pandemic normal prison operations, and so the need to start answering the question in the title of this post may still be a long way off.  But, as this Forbes piece highlights, it is probably not too early to start thinking about some of the legal and practical challenges that will come whenever we are "lucky" enough to return to "normal" in the federal prison section of incarceration nation.

October 16, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (2)

October 15, 2020

"COVID-19 and the US Criminal Justice System: Evidence for Public Health Measures to Reduce Risk"

The title of this post is the title of this notable new report authored by a bunch of experts at Johns Hopkins.  Here is the report's introduction:

Since its recognition as a pandemic in early 2020, novel coronavirus disease 2019 (COVID-19) has touched nearly every corner of US society.  However, some populations and environments have been affected far more severely than others. Vulnerable populations — especially those subject to structural racism, discrimination due to disability, and financial insecurity — tend also to be particularly susceptible to the economic consequences of and severe disease and death from COVID-19.  In addition, the institutions, industries, and systems that are fundamentally important to our lives and our democracy have, in some cases, become places where severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) spreads readily if allowed to gain a foothold.  In these places, it can be difficult to prevent the introduction of the virus or control the spread of SARS-CoV-2 once it is introduced.

The US criminal justice system is highly susceptible to the spread of COVID-19 because of the structure of carceral facilities, which propagates the spread of respiratory infections, and the comorbidities of many incarcerated individuals. The criminal justice system in the United States is not unique in its vulnerability to COVID-19; other systems and industries — like nursing homes and long-term care facilities, manufacturing and meat processing facilities, and dormitories — are similarly affected. However, many factors converge in the criminal justice system that make viral transmission both more possible and, in some cases, more dangerous than in many other environments.

This report, from scholars at the Johns Hopkins Bloomberg School of Public Health and the Johns Hopkins School of Medicine, is intended to summarize the current state and future projections of the COVID-19 pandemic in the United States, detail the impact that the pandemic has already had on the US criminal justice system, and provide evidence-based recommendations on how to reduce COVID-19 risks to people in the system.  This document was requested by the National Commission on COVID-19 and the Criminal Justice System to inform their discussion and deliberation on this topic.

October 15, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Spotlighting new research detailing increased post-release deaths for those placed in solitary confinement

I sense that we have known for many decades about the profound harms that solitary confinement can created for mental and physical health, and yet there are still tens of thousands of persons subject to this extreme form of imprisonment. And thanks to this new Prison Policy Initiative piece, titled "New data: Solitary confinement increases risk of premature death after release," I learned of new research documenting how time spent in solitary confinement increases the risk of deaths by suicide, homicide, and opioid overdose.  This research was published in a medical journal late last year under the title "Association of Restrictive Housing During Incarceration With Mortality After Release."  Here is part of a summary of the research by Andrea Fenster of PPI :

A recently published study of people released from North Carolina prisons confirms what many have long suspected: solitary confinement increases the risk of premature death, even after release.  Personal stories, like those of Kalief Browder’s isolation and subsequent suicide, are canaries in the coal mine.  Underneath seemingly isolated events, researchers now find that solitary confinement is linked to more deaths after release from prison.  These preventable deaths aren’t outliers; in the U.S., where the use of solitary confinement is widespread, an estimated 80,000 people are held in some form of isolation on any given day, and in a single year, over 10,000 people were released to the community directly from solitary.

The new study shows that the effects of solitary confinement go well beyond the immediate psychological consequences identified by previous research, like anxiety, depression, and hallucinations.  The authors, from the University of North Carolina, Emory University, and the North Carolina Departments of Public Safety and Public Health, find that any amount of time spent in solitary confinement increases the risk of death in the first year after individuals return to the community, including deaths by suicide, homicide, and opioid overdose....

The study identifies two additional factors correlated with a heightened risk of death after release: race and the amount (length and frequency) of solitary confinement.  All incarcerated people of color are more likely to die within a year of release, and the experience of solitary confinement only amplifies this racial disparity.  A previous study found that, compared to their share of the total prison population, Black men and women are overrepresented in solitary confinement, exposing them disproportionately to its harms. And unsurprisingly, more frequent placements in solitary confinement — as well as longer stays — are associated with worse outcomes across both white and nonwhite populations.

October 15, 2020 in Prisons and prisoners, Race, Class, and Gender | Permalink | Comments (1)

Another notable cert petition providing the new Justices (and older ones) another chance to look at reasonableness review of federal sentences

In this post a few years ago, I flagged an interesting cert petition while asking in my post title "Now a full decade after Rita, Gall and Kimbrough, do any Justices still care about reasonableness review?".  That post from April 2018 stemmed from my frustration with the US Supreme Court's seeming disinterest in examining how reasonableness review of federal sentences was functioning in the circuits.  For years and years, judges, scholars and commentators have suggested that the appellate review of sentences — and all of federal sentencing under advisory Guidelines — would benefit significantly from the Court's further guidance on the contours of reasonableness review. 

As long-time readers likely know, I have long been particularly troubled by the so-called "presumption" of reasonableness permitted by Rita v. US, 551 U.S. 338 (2007), which has largely functioned as a problematic, un-rebuttable, safe-harbor for within-guideline sentences even in settings where the US Sentencing Commission's data and analysis demonstrate the obvious unreasonableness of certain guideline provisions.  But, over these oh-so-many-years of excessive federal sentences, my grumpiness over the failure of SCOTUS to take up reasonableness review anew has largely turned to resignation and acceptance of the fact that the Justices were just not that into the issue.

But perhaps hope should spring eternal, especially with Carissa Hessick flagging a new cert petition in this extended PrawfsBlawg post titled "Supreme Court Weighs Whether to Hear Possible Sentencing Law Blockbuster."  Here are excerpts (and links) from Carissa's post:

This Friday, the Supreme Court will decide whether to grant certiorari in Demma v. United States.  Demma raises two questions under the Supreme Court’s Sixth Amendment sentencing doctrine: (1) the extent to which judges can sentence outside of the Federal Sentencing Guidelines based only on a policy disagreement with the Guidelines, and (2) how much appellate courts must defer to the substantive sentencing decisions of district court judges....

Both of the legal questions raised by the Demma petition are important.  And frankly, I am surprised that the Supreme Court has yet to resolve them in favor of district court discretion to sentence outside of the Guidelines.  I suspect that the Court hasn’t clarified these issues because it wants judges to impose Guidelines sentences in most cases.  And while the Court’s Sixth Amendment sentencing doctrine doesn’t allow the Court to accomplish that directly, it has tried to do so indirectly through allowing the courts of appeals to take different approaches on these questions.

But I find that decision — the decision to allow different legal standards for sentencing — troubling.  The Supreme Court ordinarily prides itself on resolving legal disagreements between the circuits.  And it seems especially ironic to allow different courts of appeals to have different legal standards when it comes to sentencing.  After all, the remedial majority in Booker said that it was creating an advisory Guidelines system because it wanted to promote uniformity in sentencing.  Different legal standards in different circuits is hardly likely to lead to uniformity.

And we don’t have sentencing uniformity right now.  Instead we have sentencing practices that vary wildly depending on the circuit.  Because different circuits have different sentencing case law, judges in some circuits are far more likely to sentence outside of the Guidelines than judges in other circuits.... 

The chances that the Court will grant cert in Demma look pretty good.  The Court called for a response from the Solicitor General (who had initially waived response).  The Court also relisted the petition after an earlier conference.

I really hope that the Justice vote to grant cert in this case.  And I hope that they resolve these questions in a way that vindicates the Sixth Amendment right that they first acknowledged in Apprendi.

Give the Supreme Court's long history of dodging many reasonableness review issues for now more than a dozen years, I am a bit fearful of the statement that the "chances that the Court will grant cert in Demma look pretty good."  But as the title of this post hints, I am hopeful that the newer members of the Court, Justices Gorsuch and Kavanaugh, who had to grapple with reasonableness review issues during long tenures as circuit judges, might now be eager to help further define the contours of reasonableness review. 

In the end, though, I suspect Justice Breyer is always a critical Justice on this front, as he both created reasonableness review with his remedial opinion in Booker and defined its essential form in Rita.  If Justice Breyer's voice and vote on these matters carry some extra weight, those of us eager to see the full Court take up reasonableness review might need to root for him to be eager to tackle these issues yet again. 

Some (of many, many) older related posts about reasonableness review:

October 15, 2020 in Booker and Fanfan Commentary, Booker in the Circuits, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

October 14, 2020

The Sentencing Project releases new disenfranchisement report, "Locked Out 2020: Estimates of People Denied Voting Rights Due to a Felony Conviction"

Via email this afternoon I received news of this notable new Sentencing Project report titled "Locked Out 2020: Estimates of People Denied Voting Rights Due to a Felony Conviction." Here is part of its "overview":

In the past 25 years, half the states have changed their laws and practices to expand voting access to people with felony convictions.  Despite these important reforms, 5.2 million Americans remain disenfranchised, 2.3 percent of the voting age population.

In this presidential election year, the question of voting restrictions, and their disproportionate impact on Black and Brown communities, should receive greater public attention....

For the first time, we present estimates of the percentage of the Latinx population disenfranchised due to felony convictions.  Although these and other estimates must be interpreted with caution, the numbers presented here represent our best assessment of the state of felony disenfranchisement as of the November 2020 election.  Our key findings include the following:

• As of 2020, an estimated 5.17 million people are disenfranchised due to a felony conviction, a figure that has declined by almost 15 percent since 2016, as states enacted new policies to curtail this practice.  There were an estimated 1.17 million people disenfranchised in 1976, 3.34 million in 1996, 5.85 million in 2010, and 6.11 million in 2016.

• One out of 44 adults — 2.27 percent of the total U.S. voting eligible population — is disenfranchised due to a current or previous felony conviction.

• Individuals who have completed their sentences in the eleven states that disenfranchise at least some people post-sentence make up most (43 percent) of the entire disenfranchised population, totaling 2.23 million people.

• Rates of disenfranchisement vary dramatically by state due to broad variations in voting prohibitions.  In three states — Alabama, Mississippi, and Tennessee more than 8 percent of the adult population, one of every thirteen people, is disenfranchised.

• We estimate that nearly 900,000 Floridians who have completed their sentences remain disenfranchised, despite a 2018 ballot referendum that promised to restore their voting rights.  Florida thus remains the nation’s disenfranchisement leader in absolute numbers, with over 1.1 million people currently banned from voting — often because they cannot afford to pay court-ordered monetary sanctions or because the state is not obligated to tell them the amount of their sanction.

• One in 16 African Americans of voting age is disenfranchised, a rate 3.7 times greater than that of non-African Americans.  Over 6.2 percent of the adult African American population is disenfranchised compared to 1.7 percent of the non-African American population.

• African American disenfranchisement rates vary significantly by state.  In seven states — Alabama, Florida, Kentucky, Mississippi, Tennessee, Virginia, and Wyoming — more than one in seven African Americans is disenfranchised, twice the national average for African Americans.

• Although data on ethnicity in correctional populations are still unevenly reported, we can conservatively estimate that over 560,000 Latinx Americans or over 2 percent of the voting eligible population are disenfranchised.

• Approximately 1.2 million women are disenfranchised, comprising over one-fifth of the total disenfranchised population.

October 14, 2020 in Collateral consequences, Data on sentencing, Race, Class, and Gender | Permalink | Comments (2)

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

I said before that I was 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."  So, here again 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 14, 2020 in Drug Offense Sentencing | Permalink | Comments (0)

Criminal justice issues again on the SCOTUS oral argument docket today (though again attention is on confirmation hearings)

The criminal justice cases on the SCOTUS docket that are likely of the greatest interest to sentencing fans are scheduled for oral argument on Nov 3 (aka Election Day): Jones v. MississippiNo. 18-1259, will address the Eighth Amendment rules for imposing LWOP sentences on juvenile murders, and Borden v. USNo. 19-5410, will explore another variation on the application of the severe mandatory minimum term in the Armed Career Criminal Act.  Based on what I am hearing about the pace and content of the on-going confirmation hearing for Judge Amy Coney Barrett, it sounds as though the Supreme Court might be back to nine Justices by that time.

Today, though, the Supreme Court is operating with only eight Justices, and those eight are scheduled to hear oral arguments in these two criminal cases (previewed via SCOTUSblog):

Torres v. Madrid, No. 19-292 [Arg: 10.14.2020]

Issue(s): Whether an unsuccessful attempt to detain a suspect by use of physical force is a “seizure” within the meaning of the Fourth Amendment, as the U.S. Courts of Appeals for the 8th, 9th and 11th Circuits and the New Mexico Supreme Court hold, or whether physical force must be successful in detaining a suspect to constitute a “seizure,” as the U.S. Court of Appeals for the 10th Circuit and the District of Columbia Court of Appeals hold.

Case preview: When is a fleeing suspect “seized”? (authored by Jeffrey Bellin)

 

Pereida v. BarrNo. 19-438 [Arg: 10.14.2020]

Issue(s): Whether a criminal conviction bars a noncitizen from applying for relief from removal when the record of conviction is merely ambiguous as to whether it corresponds to an offense listed in the Immigration and Nationality Act.

Case preview: Harsh immigration consequences from ambiguous state criminal convictions (authored by Kate Evans)

October 14, 2020 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

October 13, 2020

"COVID-19 in Juvenile Facilities"

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

COVID-19 has infected hundreds of youth housed in and staff working in juvenile facilities.  Given the close proximity that defines life in congregate care settings, such as detention centers and residential treatment centers, such spread was inevitable without significant reductions in population in these facilities.  Since March, The Sentencing Project has urged the release of as many youth as possible to bend the curve of infections within the juvenile justice system.  As of July, four staff members working in these facilities have died from COVID-19.

Among detained youth, COVID-19 cases have been reported in 35 states, the District of Columbia and Puerto Rico. Cases among staff have been reported in 41 states and the District of Columbia.

October 13, 2020 in Impact of the coronavirus on criminal justice, Offender Characteristics, Scope of Imprisonment | Permalink | Comments (3)

Noticing a lurking Eighth Amendment issue in SCOTUS arguments over statute of limitations for military rape prosecutions

The US Supreme Court issued another order list this morning with little of interest for sentencing fans, and I am not expecting much criminal law discussion in the on-going confirmation hearings for Judge Amy Coney Barrett.  But SCOTUS is hearing oral argument today in US v. Briggs, which is worth watching for reasons Evan Lee explains in this post at SCOTUSblog under the title "Case preview: Determining the statute of limitations for military rape — and possibly a lot more."  Here is an excerpt:

When the Supreme Court entertains argument on Tuesday in United States v. Briggswhich had originally been scheduled for Monday, March 23, it will be asked to decide whether three men convicted of military rape should not have been prosecuted in the first place because of the statute of limitations.  And, should each side’s principal argument fail, the court may be forced to decide a bigger question: whether the Eighth Amendment prohibition against capital punishment for non-homicide rape applies to rape in the military.

This litigation consists of three consolidated cases, which all involve male military personnel convicted of raping female military personnel.  Michael Briggs, Richard Collins and Humphrey Daniels claim that the statute of limitations should have barred their prosecutions.  The government argues that there is no statute of limitations for military rape because Congress exempted all military crimes punishable by death from limitations.  The defendants counter that the cruel and unusual punishments clause of the Eighth Amendment prohibits the death penalty for all rapes not involving fatalities, including military rapes.  That, in turn, means there is a statute of limitations for military rape, and it expired before any of the three men were prosecuted.  The U.S. Court of Appeals for the Armed Forces agreed with the defendants....

A key issue in this litigation is which subsection of the UCMJ, 10 U.S.C. Section 843, applies: subsection (a), which states that “any [military] offense punishable by death may be tried and punished at any time without limitation,” or subsection (b), which creates a five-year statute of limitations for other military offenses.  The government argues that Section 843(a) applies because military rape is made “punishable by death” by 10 U.S.C. Section 920(a), which states, “Any person subject to this chapter who commits an act of sexual intercourse, by force and without consent, is guilty of rape and shall be punished by death or such other punishment as a court-martial may direct.”  The three defendants argue that military rape is not “punishable by death” because the Supreme Court’s Eighth Amendment precedents prohibit capital punishment for non-fatality rapes.  And if military rape is not punishable by death, then the applicable limitations period is the default provision of Section 843(b)....

At oral argument, it will be interesting to see whether any of the justices demonstrate an appetite for the constitutional issue, or whether they think the statutory interpretation questions are dispositive.  

I strongly agree it will be interesting to see how the Justices may bring up the Eighth Amendment during oral argument today, and I will plan to update this post accordingly.

UPDATE: The oral argument transcript in Briggs is now available here.  A quick search reveals the term "Eighth Amendment" coming up 32 times over the transcript's 65 pages.  Over at Crime & Consequences, Kent Scheidegger has this extended post on the case under the title "The Eighth Amendment and Statutes of Limitations." Here is how this post starts and ends:

What do statutes of limitations and the constitutional ban on “cruel and unusual punishments” have to do with each other? The logical answer is “nothing.” But the law follows strange paths, and the two issues crossed in today’s Supreme Court argument on the statute of limitations for rape in the military justice system....

I won’t venture a prediction based on this argument. If the eight justices divide four-four, we might be seeing a reargument.

October 13, 2020 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

October 12, 2020

Broad Michigan expungement bill signed into law (time to step up Ohio)

As reported in this local article, headlined "Gov. Whitmer signs bills expanding criminal record expungement in Michigan," notable record relief reform has now become law in the Wolverine State.  Here are the details:

Gov. Gretchen Whitmer signed legislation Monday that will automatically clear certain criminal convictions from public view in Michigan while also making more people eligible for expungement through the application process.

The changes are expected to help hundreds of thousands of Michiganders by removing a barrier to employment, housing and other opportunities after people have rehabilitated themselves.

During a news conference with Whitmer in Detroit, lawmakers and advocates held up Michigan as a national leader in expungement reform.  The automatic record-clearing legislation is the "most expansive version of this law in the country," said John Cooper, executive director of Safe & Just Michigan, one of the organizations that advocated for the bills.

Whitmer called it a "historic" day for Michigan.  “These bipartisan bills are going to be a game changer,” she said.  “They will ensure a clean slate for hundreds of thousands of people.  And they will help us grow our workforce and expand access to education and skills training."

State Rep. Graham Filler, a DeWitt Republican who chairs the House Judiciary Committee and joined in announcing the bipartisan bills in Detroit last fall, said the reform will directly increase public safety.  "You're in your community, you're invested in your community, you're spending time with your family, you're working, you're accessing housing," he said. "We have less recidivism, less victims. This is what happens when you access expungement."

Crime survivors who support the legislation agreed.  "For many crime survivors, the most important thing ... is what happened it us, we don’t want it to happen again to anyone," Aswad Thomas, a survivor of gun violence, told the Free Press.  Thomas is managing director of Crime Survivors for Safety and Justice, a national network with chapters in Michigan.  "And passing reforms like the Clean Slate bill, when people are able to get access to a job, people are able to get access to education, people are able to get access to employment, it actually increases public safety."

A coalition of groups that pushed for the reform over the last few years say Michigan's process to seal a conviction so that it doesn't appear on a background check has long been costly and complicated, and the restrictions unduly narrow.  Only 6.5% of people who qualify for expungement in Michigan have their records cleared within five years of becoming eligible, according to a study out of the University of Michigan Law School.  The study found that people who get their records expunged see higher earnings and low recidivism rates.

"This is bigger than criminal justice reform," Lt. Gov. Garlin Gilchrist said. "This is about economic opportunity and full participation in our economy and our society."

The state follows Pennsylvania, Utah and California in adopting an automated system to wipe clean certain convictions from public records after a period of time. Michigan's law will apply retroactively and is the first to automatically clear prior low-level felonies.

Under the automatic record-clearing law, misdemeanors will be expunged seven years after sentencing.  Felonies will be cleared 10 years after sentencing or the person's release from incarceration, whichever comes last.  Up to two felonies and four misdemeanors can be automatically cleared.

Not eligible for automatic expungement are assaultive crimes, serious misdemeanors, "crimes of dishonesty" (such as forgery and counterfeiting), offenses punishable by 10 or more years in prison and crimes that involve a minor, a vulnerable adult, injury or serious impairment, death or human trafficking.  Assaultive crimes are defined as offenses such as assault, homicide, manslaughter, assaults against pregnant women, kidnapping, rape, armed robbery, terrorism, and violations involving bombs and explosives, according to the House Fiscal Agency.

The legislation gives the state two years to implement the automatic expungement process.  The remaining legislation in the seven-bill package will take effect in 180 days.  The bills expand eligibility for expungement through the application process, which is handled by a judge.

As the parenthesis in my post title highlights, I am hopeful that Ohio's long-standing rivalry with its neighbor up north might lead the Buckeye State to try to keep up on the record relief front.  And, coincidentally, the latest new drafting contest from a partnership of the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law and the Ohio Justice & Policy Center and the Collateral Consequences Resource Center is focused on suggesting changes to Ohio’s existing statutory record relief provisions. The details on this contest, titled "Re-Imagining 'Second Chances': Improving Ohio’s Re-Entry Provisions," are available here on the DEPC website.

October 12, 2020 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

"Money and Punishment, Circa 2020"

The title of this post is the title of this big new collection of materials now available via SSRN put together by multiple authors (mostly based out of Yale Law School).  Here is part of the abstract:

Money has a long history of being used as punishment, and punishment has a long history of being used discriminatorily and violently against communities of color.  This volume surveys the literature on the many misuses of money as punishment and the range of efforts underway to undo the webs of fines, fees, assessments, charges, and surcharges that have been used as sources of funds for governments at all levels.  Whether in domains that are denominated “civil,” “criminal,” or “administrative,” and whether the needs are about law, health care, employment, housing, education, or safety services, racism intersects with the criminalization of poverty in all of life’s sectors to impose harms felt disproportionately by people of color.

These materials are lengthy because of the proliferation of research on this subject, as well as the need to bridge legal and public finance analyses.  The first segment, using “Ferguson as a Frame,” reflects the impact of the killings of Michael Brown in Ferguson in 2014 and of George Floyd in Minneapolis in 2020, as well as the mass protest movement underway related to those events....

The second segment, Funding Government: Fiscal Incentives, Inequalities, Reform, and Abolition, reflects the importance of understanding public finance systems and tax mechanisms to learn how to alter structures of government funding to reduce or eliminate monetary sanctions.  The questions are why and how government funds are collected and allocated, and the impact of various modes of financing. Researchers have documented how certain funding mechanisms produce and reinforce inequality, and have honed in on the effects of funding government services through fines and fees in state and local public finance systems.  The readings consider the decision-making and the politics that drive assessments. Knowing these incentives is requisite to changing them, and throughout this volume, commentators examine means to stop pernicious fiscal policymaking.

The third segment, The Practices, Law, and Harms of Tying Monetary Assessments to Law Enforcement Systems, includes readings about the history of criminal legal obligations, their impacts on individuals and families, how the harms track race and class, and what changes could make dents in the systems of unfairness.  Excerpted essays explore government funding mechanisms and examine the formal distinctions among categories labeled “tax,” “fine,” and “fee,” their functional overlaps, and their effects. Other materials address aspects of constitutional and state and municipal law that frame some of the discussion and litigation....

The final set of edited readings, In the Courts and Legislatures, Circa 2020, and Shadowed by COVID-19, provide a partial account of the many lawsuits and legislative initiatives between 2018 and 2020, including recent months when COVID-19 came to dominate the world. As the judicial opinions reflect, some federal appellate courts are proffering limited readings of the 1980s precedents and narrowing the scope of constitutional protection for the intersection of poverty and of the “use” (voluntary or not) of courts.

October 12, 2020 in Fines, Restitution and Other Economic Sanctions | Permalink | Comments (0)

October 11, 2020

Arizona Supreme Court rejects Eighth Amendment claims by juvenile offenders given de facto life sentences for multiple offenses

On Friday, the Supreme Court of Arizona handed down a unanimous rejection of claims by multiple juvenile offenders subject to de facto life sentences for multiple sentences in Arizona v. Soto-Fong, No. CR-18-0595 (Ariz. Oct. 9, 2020) (available here).  Here is how the opinion begins and a concluding paragraph:

We consider whether consecutive sentences imposed for separate crimes, when the cumulative sentences exceed a juvenile’s life expectancy, violate the Eighth Amendment’s prohibition against “cruel and unusual punishments.”  We conclude that such de facto life sentences do not violate the Eighth Amendment, as interpreted in Graham v. Florida, 560 U.S. 48 (2010), Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 136 S. Ct. 718 (2016). Consequently, Graham, Miller, and Montgomery do not constitute a significant change in the law under Arizona Rule of Criminal Procedure 32.1(g)....

Despite the shifting and confusing reasoning embodied in Graham, Miller, and Montgomery, we are bound by the Supremacy Clause to faithfully apply this jurisprudence as we fairly construe it.  Davis, 206 Ariz. at 384 ¶ 34 n.4.  But because those cases do not address or implicate de facto juvenile life sentences, we decline Petitioners’ invitation to expand this jurisprudence one step beyond its reach.  Our respect for the separation of powers, the will of our citizens, and principles of judicial restraint, rather than dicta from inapposite cases, compel our decision.  Thus, we hold that the Eighth Amendment does not prohibit de facto juvenile life sentences.

As this last quoted paragraph may reveal, the Soto-Fong opinion is full of a good deal of snark about the US Supreme Court's rulings in Graham, Miller, and Montgomery.  Discussing Graham, for example, the Arizona Supreme Court calls part of the SCOTUS ruling "dubious" and then takes a "pause" to express "concern" with the Graham opinion’s reference to international law.  Perhaps it is thus unsurprising that the Arizona Supreme Court was seemingly keen to affirm in this case an "enhanced concurrent and consecutive prison sentences totaling nearly 140 years" for a teenager who committed a series of serious arsons.

October 11, 2020 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

"Neighborhood Risk Factors for Recidivism: For Whom Do They Matter?"

The title of this post is the title of this new article just posted to SSRN and authored by Leah Jacobs and Jennifer Skeem.  Here is its abstract:

Justice-involved people vary substantially in their risk of re-offending.  To date, recidivism prediction and prevention efforts have largely focused on individual-level factors like antisocial traits.  Although a growing body of research has examined the role of residential contexts in predicting re-offending, results have been equivocal.  One reason for mixed results may be that an individual’s susceptibility to contextual influence depends upon his or her accumulated risk of re-offending.

Based on a sample of 2,218 people on probation in San Francisco, California, this study draws on observational and secondary data to test the hypothesis that individual risk moderates the effect of neighborhood factors on recidivism. Results from survival analyses indicate that individual risk interacts with neighborhood concentrated disadvantage and disorder — these factors increase recidivism among people relatively low in individual risk, but not those at higher risk. This is consistent with the disadvantage saturation perspective, raising the possibility that some people classified as low risk might not recidivate but for placement in disadvantaged and disorderly neighborhoods.  Ultimately, residential contexts “matter” for lower risk people and may be useful to consider in efforts to prevent recidivism.

October 11, 2020 in National and State Crime Data, Reentry and community supervision | Permalink | Comments (1)