« October 18, 2020 - October 24, 2020 | Main | November 1, 2020 - November 7, 2020 »

October 31, 2020

"Courts, Culture, and the Lethal Injection Stalemate"

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

The Supreme Court’s 2019 decision in Bucklew v. Precythe reiterated the Court’s great deference to states in Eighth Amendment lethal injection cases.  The takeaway is that when it comes to execution protocols, states can do what they want.  Except they can't.  Notwithstanding courts’ deference, executions have ground to a halt in numerous states, often due to lethal injection problems.  State officials and the Court’s conservative Justices have blamed this development on “anti-death penalty activists” waging “guerilla war” on capital punishment.  In reality, though, a variety of mostly uncoordinated actors motivated by a range of distinct norms has contributed to states’ lethal injection woes. These actors, such as doctors, pharmaceutical companies, and institutional investors, follow their own professional incentives, usually unrelated to the morality of capital punishment.

States’ recent execution difficulties raise important questions about the future of the Eighth Amendment and the American death penalty.  As certain lethal injection protocols and executions themselves become less common, future courts might reconsider their deference in this area.  The Eighth Amendment, after all, encompasses “evolving standards of decency,” which courts often measure with reference to changing state practices.  Though constitutional doctrine has played only a bit part in the execution decline, that decline could eventually reshape constitutional doctrine.

This story also complicates long-accepted constitutional theories.  While the traditional view is that federalism maximizes state policy choices so long as courts and Congress do not interfere, the lethal injection stalemate shows how non-governmental actors, even uncoordinated ones, can undermine state policies.  Courts and the political branches in some states stand united in support of capital punishment.  It is, therefore, noteworthy that unorganized actors pursuing their own institutional objectives have obstructed executions and even cast new long-term doubt on previously entrenched penological practices.

October 31, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Effective PPI review of how "technical violations" contribute to incarceration in DC

The Prison Policy Initiative has this notable new detailed briefing about so-called "technical violations" in Washington DC that helps highlight the various was mass supervision contributes to mass incarceration.  The briefing's full title set out its coverage: "Technical difficulties: D.C. data shows how minor supervision violations contribute to excessive jailing; Using D.C. as a case study, we explain how much non-criminal — and often drug related — 'technical' violations of probation and parole contribute to unnecessary jail incarceration." I recommend the piece in full, and here are excerpts:

Parole and probation violations are among the main drivers of excessive incarceration in the U.S., but are often overlooked policy targets for reducing prison and jail populations. Nationally, 45% of annual prison admissions are due to supervision violations, and 25% are the result of “technical violations” — noncompliant but non-criminal behaviors, like missing meetings with a parole officer.  The sheer number of people held in jail for mere violations of supervision exemplifies the gross overuse and misuse of incarceration in the U.S.

Despite their impact on local jail and state prison populations, technical violations are not well understood, often appearing in the data simply as “violations” without any description of the underlying behavior.  However, Washington, D.C. stands out by publishing a wealth of local jail data as well as contextual data from federal agencies like the Court Services and Offender Supervision Agency (CSOSA), which offers a fuller story of what happens to people on supervision....

When people serving a sentence from D.C. Superior Court are released from jail or prison, many remain under supervision of some form — either supervised release or parole. Each person under supervision must comply with certain conditions, which are monitored by a Community Supervision Officer (CSO).  The same is true of those sentenced by a court to probation, another form of supervision, instead of a period of incarceration.  The Robina Institute estimates that people on probation must comply with 18 to 20 requirements a day; the list of requirements in D.C. illustrates how easy it can be to “violate” these many conditions...

In D.C., the second most common “most serious offense” for men in jail is a parole violation, just behind assault and ahead of weapons violations, drug offenses, property crime, burglary and robbery, and other violations of law.  Among women, parole violations are the third most common “most serious offense.”  The D.C. Department of Corrections (DOC) reported that, as of April 2020, 8.5% of women and 14.3% of men in jails were held on charges that included a parole violation or had a “Parole Violator” status.

For context, we previously found that in both New York and Texas, parole violations made up just over 8% of those in jails statewide.  In comparison to those states, D.C.’s jails hold a larger proportion of people on parole violations.  However, when compared to the share of people held for supervision violations in other large cities like Philadelphia (58%), New York City (27%), and New Orleans (22%), D.C.’s incarceration for violations (about 14%) appears consistent with — or even more modest than — other cities’....

People in jail for technical violations — things that are not criminal offenses for people not under supervision – exemplify the overuse and misuse of incarceration. D.C. is just one criminal legal system among over 50 more in every state and territory.  Dismantling mass incarceration is impossible without also addressing the systems that latch on to people involved in the criminal legal system and refuse to let go.  To get the full picture, politicians, advocates, and scientists must take hard look at the many Americans under supervision and the ways that they are continuously churned through our massive criminal legal system. It is time to end these cycles of criminalization and find solutions that free people from the enormous reach of supervision.

October 31, 2020 in Collateral consequences, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (3)

October 30, 2020

How might the Prez clemency power be wielded next month and next year?

Mark Osler usefully ruminates on the question that serves at the title of this post in this extended new CNN opinion piece headlined "Get ready for a flood of Trump pardons."  I recommend the piece in full (which is much better than the headline likely picked by CNN just to be click bait).  Here is an extended excerpt:

Trump and Biden present very different issues relating to clemency (which includes the power to shorten sentences through a commutation or forgive convictions through pardons).  Trump already has shown his cards: Even taking into consideration the commutations granted last Wednesday to five worthy petitioners, his use of the pardon power has mostly favored friends and Fox News celebrities.  Even his much-celebrated commutation and pardon of Alice Marie Johnson came about only after another reality television star, Kim Kardashian West, intervened.  Biden, meanwhile, is a blank slate.  The concern some may have with him is that he will do too little, at a time when over-incarceration is being critiqued by experts and a broad array of citizens on both the left and right.

While interviewers continually (and appropriately) pepper Trump with questions about whether he will relinquish power if he loses, it is rare that anyone asks him who he might pardon after the election, despite the long and positively bizarre track record he has established.

Similarly, Joe Biden hasn't been pressed on the issue, and he certainly doesn't seem to have thought much about it: In response to a general question about criminal justice by NBC's Lester Holt at a town hall, Biden claimed that the Obama administration granted clemency to "18,000 people."  He was off by about 16,000 (he did better in the last debate, citing the number as "over 1,000").  It could be that Biden overestimates the effectiveness of the Obama clemency initiative, which offered too little, too late.  That well-intentioned project began only after years of inaction, as Obama granted just one commutation of sentence in his first five years.  It also failed to reach so many good cases that when Trump's First Step Act enabled 2,387 crack offenders to be released early, it amounted to far more than the Obama clemency program did, even though both projects targeted the same group.  Clearly, Obama left too many people behind.

Failing to focus on clemency when it matters also lets candidates off the hook for any specific plan for reform. And reform of every part of a system that has enabled systemic racism and unduly long sentences is important.  Right now, the clemency review process has seven steps, is controlled by the Department of Justice (conflicted because it sought the over-long sentences in the first place), and simply doesn't work.  There is broad support for the formation of a clemency review board to advise the president, and that idea even made it into the Biden-Sanders unity plan and the Democratic platform.  Biden, though, hasn't mentioned it (at least in the forums I have reviewed)— in large part because no one has asked.

Even if other criminal justice reforms are enacted, clemency must be reformed as well.  For one thing, other reforms don't do what one form of clemency, pardons, can do: free people from the restrictions of a conviction after they have completed a sentence.  For another, reforms that send cases back to the sentencing judges for review too often exacerbate disparities.  After all, judges who are tough at sentencing are less likely to give a break later, meaning that those who come before them could be disadvantaged. Clemency can be a way to reach those twice-victimized.

October 30, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Criminal Justice Citizenship"

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

The American criminal justice system is fundamentally democratic and should reflect an ideal of citizenship that is equal, participatory, and deliberative.  Unfortunately, the outcomes of criminal cases are now almost always determined by professionals (prosecutors, defense attorneys, and judges) instead of by juries.  This overly bureaucratized system of adjudication silences the voice of the people.  A better system would strengthen “criminal justice citizenship,” which refers to the right of the citizenry to participate, directly and indirectly, in the criminal justice system and to deliberate in its workings.

The three key principles of criminal justice citizenship are membership, participation, and deliberation. Membership refers to who can participate and whether they can participate on an equal basis.  Where the justice system adheres to this principle, people enjoy a greater sense of belonging, solidarity, and trust in government.  Participation refers to public participation in democratic processes, such as jury service.  Deliberation refers to structured dialogues between lay persons that affect governmental decisions.  Institutions and procedures must be designed to give the people an important role in government, but the nature and extent of that role should be limited by other considerations, such as procedural accuracy and preventing racial discrimination.

This theory of criminal justice citizenship has important applications to jury trials.  Regarding membership, providing broad and equal opportunities for jury service is necessary for democratic legitimacy and fair and effective deliberations. Regarding deliberation, jury trials need to be more transparent; the prevailing procedures of jury deliberations need to be modified; and unanimous verdicts must be required to protect the voice of potentially marginalized jurors.  Regarding participation, jury trials are so rare that it will be necessary to improve criminal justice citizenship by democratically reforming other aspects of the criminal justice system, such as plea bargaining.  The overarching principle is that the people need a more significant role in criminal adjudication, not only because popular participation is good for defendants, but also because it strengthens American democracy.

October 30, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Will problematic definition of "violence" convictions impact Oklahoma sentencing reform initiative SQ 805?

I have highlighted in a few prior posts SQ 805, a fascinating Oklahoma ballot initiative seeking to block non-violent prior convictions from enhancing statutory punishment ranges.  This new Mother Jones story provide useful context concerning Oklahoma reforms while also noting a potential problem with how SQ 805 is drafted.  The full headline of the piece serves to summarize its coverage: "How a Domestic Violence Loophole Could Doom a Campaign to Cut Oklahoma’s Harsh Prison Sentences: A wrinkle threatens public support for the state’s progress against mass incarceration."  I recommend the piece in full, and here are excerpts:

For the last four years, the fight against mass incarceration in Oklahoma has been a story of unlikely success.  In 2016, after decades of creeping prison populations, the state’s incarceration rate reached levels so astronomical that the Prison Policy Initiative would dub it the “world’s prison capital“: More than 1 in 100 Oklahomans was locked up in a prison, jail, juvenile hall, or immigration detention facility.  But that year, the same electorate that voted to send Donald Trump to the White House by a 36-point margin also approved a ballot measure softening their state’s notoriously hardline criminal code.

That measure, State Question 780, was a turning point.  It downgraded drug possession and a slate of minor property crimes from felonies to misdemeanors, while a second measure ensured the money saved by downsizing prisons would go to rehabilitative programs.  In 2017, 14,000 fewer felony charges were filed by Oklahoma prosecutors; not long after, the state’s prison population began to fall. Meanwhile, politicians took note of the message the voters had sent.  In 2018, the state legislature, where Republicans hold a supermajority, passed more reforms, including streamlining the parole process.  Republican businessman Kevin Stitt made reducing the prison population part of his pitch for the governor’s seat, and won.

This year, Oklahoma voters could send another jolt to the system by voting for State Question 805 — another adjustment to the state’s harsh sentencing practices.  If it passes, SQ 805 could reduce the prison population by 8.5 percent over the next 10 years, according to a projection by the Oklahoma Council of Public Affairs, a conservative think tank that supports the initiative.

SQ 805 would add a provision to the state constitution prohibiting prosecutors and courts from jacking up the sentences of people convicted of nonviolent felonies if they have an earlier nonviolent felony on their record....

But there’s a significant wrinkle threatening public support for SQ 805, and in turn, Oklahoma’s slow but steady progress against mass incarceration: The measure distinguishes violent from nonviolent felonies using an outdated list from Oklahoma’s legal code.  As of January, that list of “violent” crimes did not include certain domestic violence charges, such as domestic abuse by strangulation, or domestic assault with a dangerous or deadly weapon. If SQ 805 passes, it would continue to allow courts to impose enhanced sentences for any crimes on that list as of January 1, 2020 — including assault and battery, murder, rape, child abuse, and so on — but not those domestic violence charges.  (Oklahoma lawmakers added some domestic violence charges to the violent felonies list in May, too late for SQ 805’s cutoff date.)

Prior related posts:

October 30, 2020 in Offender Characteristics, Offense Characteristics, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

October 29, 2020

Federal prison population, per BOP report of "Total Federal Inmates," drops below 155,000

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 of the COVID era, the reported federal prison population was around 175,000.  As detailed in a series of prior posts, BOP's weekly reporting showed that 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.  In early September, as reported in this post, the BOP reported that the "Total Federal Inmates" count 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.

In recent weeks the total population seemed to be creeping down again, and checking today the new BOP numbers at this webpage report "Total Federal Inmates" at a new modern low of 154,894.  Though weekly federal prison population declines are no longer consistent or dramatic, we still seem to be experiencing small decreases many weeks and thus it now seems quite that 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.  Helpfully, as noted in this post, the US Sentencing Commission finally released some COVID-era sentencing data, and these data showed that the number of federal sentences imposed between April and June 2020 dropped about 40% from the usual rate.  The reduction in number of sentences imposed surely accounts in part for fewer persons entering federal prisons during the COVID era, though I suspect a lot of other factors have also contributed to the overall prison population declines.  

A few of many prior related posts:

October 29, 2020 in Data on sentencing, Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

"The Right to Medication-Assisted Treatment in Jails and Prisons"

The title of this post is the title of this new article just posted to SSRN authored by Samuel Macomber. Here is its abstract:

Opioid withdrawal is a grueling physical ordeal.  Fortunately, the effects of withdrawal — physical suffering, mental distress, and mortality — can be mitigated by proper medical care. In most jails and prisons, however, individuals with opioid use disorder are denied access to proper medical care and are forced to endure involuntary withdrawal.  The refusal to provide adequate medical care for the serious health condition of opioid use disorder is unnecessary, unlawful, and deadly. 

This article argues that correctional facilities have an affirmative obligation to provide medication-assisted treatment to all incarcerated individuals with opioid use disorder, regardless of whether the patient was using legal prescriptions or illicit substances prior to incarceration.  Providing medication-assisted treatment will reduce suffering, save lives, and uphold the state’s promise of human dignity to those whose liberty is restricted by incarceration.  Further, this article argues that the Supreme Court should modify the legal standard for adequate medical care in correctional facilities so that courts need only consider the objective medical need of incarcerated individuals.

October 29, 2020 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

October 28, 2020

Digging carefully into what the FIRST STEP Act has, and has not, really achieved

Malcolm C. Young, a long-time justice reform advocate, sent me an interesting new report he has completed titled "How Much Credit Should Trump be Given for the First Step Act?".  This new report, which I recommend in full, is a continuation of some research which was recently published in the Journal of Community Corrections under the title "The First Step Act and Reentry."  That Fall 2019 article makes the case that "as a law intended to improve federal reentry, the FSA falls short."  Young's new report, which can be downloaded below, is a detailed effort to pushback on some of Prez Trump's claims about "his" achievements through the FIRST STEP Act.  Here is an excerpt from the start of the report:

Trump is entitled to take credit for signing the FSA into law and the reductions in the federal prison use that followed. But the FSA, which was drafted by legislators, is neither the first nor the largest reform in recent years.  For examples, a reform in sentences for crack cocaine at the close of the George Bush administration reduced the use of federal prisons by close to three-quarters of the reduction obtained from the FSA.  A downward adjustment in drug sentences that cleared the United States Sentencing Commission (USSC) during the Obama administration resulted in nearly half-again as much a reduction in prison use (146%) as resulted from the FSA at the end of its first year.  And, finally, including the downward adjustment in drug sentences, Obama-era reforms resulted in more than double (230%) the FSA’s reduction in prison use in its first year.

As to benefits for Black Americans, the FSA’s reductions in sentences for crack cocaine benefited Black individuals disproportionally, as intended, yet very little more than did three similarly structured reforms intended to alleviate racial disparities in federal drug sentencing.  The FSA’s other provisions benefit smaller proportions of Black individuals.

As to reentry, the Trump administration's claim that, “[t]he landmark First Step Act enacted commonsense criminal justice reform that is helping prisoners gain a new lease on life and is making America safer” is, regrettably, simply not true.  These aspects of the FSA are not working.  But the fault lies more with Congress than Trump.

Download Trump and the First Step Act October 2020

October 28, 2020 in Campaign 2020 and sentencing issues, Criminal justice in the Trump Administration, Drug Offense Sentencing, Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Prisons and prisoners, Race, Class, and Gender, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

"How Criminal Law Lost Its Mind"

The title of this post is the great title of this new Boston Review commentary by Michael Serota focused on the need for mens rea refrom.  Here is an excerpt:

In our era of mass incarceration, most would say that we need fewer criminal convictions and less punishment.  But exactly what conduct are we prepared to decriminalize, and which sentences are we ready to shorten?  These are hard questions in part because low-level, non-violent offenders account for only a small percentage of the total number of incarcerated people; the vast majority of people in prison are there for serious offenses, including homicide, assault, and drug trafficking.  But it’s also true that our most serious offenses are being applied in overly broad ways that conflict with our moral intuitions about guilt.  To commit a crime, after all, is not just to do a bad thing.  Conduct becomes criminal only when it is accompanied by a blameworthy state of mind. Or at least that’s the idea behind the legal principle of mens rea (Latin for “guilty mind”).

All too often, this principle is ignored by our criminal justice system — both in who it convicts of crimes and in the length of sentences it hands out.  That should change. Good intentions may not be enough to shield someone who stumbles into harm’s way from civil liability, but they should keep individuals outside the reach of the criminal justice system. And even for those who act with a guilty mind, the criminal justice system should recognize important moral gradations between culpable mental states.  Reforming our criminal codes in these ways won’t rid our system of all its problems, but doing so is an important part of a just vision for change.

October 28, 2020 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (3)

October 27, 2020

More great coverage of criminal justice players and issues on the 2020 ballot

In a few prior posts (here and here), I have flagged some effective reviews of many of the big races and issues appearing on state ballots this November.  I have now seen two more great accounts of the votes criminal justice fans should be following:

From The Appeal: Political Report, "Criminal Justice on the 2020 Ballot." The set up:

Thousands of prosecutors, sheriffs, governors, and attorneys general will be elected in 2020, on the heels of a series of wins by candidates who ran on fighting mass incarceration in 2019.  These offices set the policies that shape the prison population, the criminal legal system, cooperation with ICE, and much more.  This page features The Appeal: Political Report’s reporting and analyses of these often-overlooked but crucial elections.

From The Brennan Center for Justice, "Justice on the Ballot 2020." The set up:

With criminal justice on the ballot nationwide, we’ve compiled a list of 40 ballot initiatives and law enforcement electoral races worth watching on Election Day.  Our resource page provides short summaries of each criminal justice ballot initiative or race, with fresh and updated links to media coverage of the contests culled from reliable news sources.

From police oversight to immigration roundups in “sanctuary” jurisdictions, November’s election will have far-reaching consequences not just for federal criminal justice issues but also for state and local policies.  We hope our new page will serve as a handy guide leading up to Election Day and beyond to help you monitor key down-ballot races and causes.

UPDATE: I now see The Marshall Project has an additional new piece in this spirit headlined "7 States Where Voters Could Change the Future of Criminal Justice."

A few prior related posts:

October 27, 2020 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

"Should Criminal Justice Reformers Care About Prosecutorial Ethics Rules?"

A helpful reader made sure I did not miss this recent article with the title that I used for this post.  This piece is available on SSRN, was authored by Bruce Green and Ellen Yaroshefsky, and here is its abstract:

Criminal justice reform groups typically explore multiple avenues for improving the law and legal processes.  Among the campaigns are calls for more demanding laws governing prosecutors’ conduct and more effective oversight and enforcement of prosecutors’ compliance with their legal obligations.  Yet little advocacy is directed toward ethics rules governing prosecutors and encouraging courts and disciplinary bodies to adopt, interpret, and enforce professional conduct rules so as to demand more of them.  This article considers the reasons for such limited focus upon ethics rules and suggests the ways in which current rules regarding prosecutors' disclosure obligations and post-conviction ones can be effective avenues to enhance prosecutorial practices.

October 27, 2020 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

With Justice Barrett seated, isn't it now time to pack the Supreme Court ... with constitutional criminal procedure cases?

The question in the title of this post is prompted by all the intense Court-packing talk that I am seeing in some quarters this morning, combined with my hope that Justice Amy Coney Barrett might ultimately follow the path of the late Justice Antonin Scalia in developing a more rights-friendly jurisprudence regarding the Fourth and Fifth and Sixth Amendments.  Long-time readers know that Justice Scalia (as well as Justice Thomas) played critical roles in expanding Fifth and Sixth Amendment rights in cases like Apprendi and Blakely and Booker, and Justice Scalia's vision of constitutional vagueness was hugely consequential in the Johnson ACCA decision.  Notably, in recent Terms, Justice Gorsuch has followed Justice Scalia's jurispruidental path in the vagueness arena, and he also has shown much more affinity for a much more expansive view of Fourth and Sixth Amendment rights than most of his conservative colleagues.

I highlight these realities largely because all smart litigants, particularly appellate advocates, need to know their bench and need to adjust litigation and appellate strategies in light of the jurisprudential inclinations of that bench.  Even before Justice Amy Coney Barrett joined SCOTUS, the recent appointments of Justice Gorsuch and Kavanaugh meant that the Court could already be expected to vote certain ways on certain hot-button civil issues.  Justice Barrett's addition to the Court would seem to make certain expected outcomes even more likely.  But in the criminal justice arena, even with Justice Barrett now joining the Court, there are an array of important constitutional criminal procedure issues which I believe (or at least hope) do not have a jurisprudential outcome pre-scripted by the standard left-right divide.

Critically, matters of constitutional criminal procedure on topics ranging from qualified immunity to the operation of criminal registries to the trial penalty to the use of acquitted and uncharged conduct at sentencing impact literally thousands of Americans every single day in this nation.  At a time of long-overdue and still growing concerns about the operation of our criminal justice systems and with considerable bipartisan support for a range of reforms, I sincerely hope that advocates and litigants will seize this moment to try to pack the new Supreme Court with lots of lots of constitutional criminal procedure cases.

A few prior related posts:

October 27, 2020 in Who Sentences | Permalink | Comments (1)

October 26, 2020

US Sentencing Commission releases data revealing COVID's impact on federal sentencings

Regular readers know I have been complaining for many months about the general failure of the US Sentencing Commission to address or release data concerning the COVID state of federal sentencing (example here).  But as of today, I cannot complain quite so much because the US Sentencing Commission has just released here its "3rd Quarter ... Preliminary Fiscal Year 2020 Data Through June 30, 2020."

These new data provide the first official accounting of federal sentencing outcomes for the period from October 1, 2019 through June 20, 2020, and it is clear from these data that COVID concerns dramatically reduced the number of federal sentences imposed in the quarter comprised of the months of April, May and June 2020.  Specifically, as reflected in Figure 2, it appears that the previous three quarters averaged roughly 20,000 federal sentencings, whereas the quarter ending in June 2020 saw only around 12,000 federal sentences. This is still a lot of sentencings, but seemingly the lowest quarterly number in decades.

In addition, as reflected in Figure 5, it appears that, along with total number of imposed sentences decreasing, so too did the average sentence imposed decrease significantly during the quarter ending in June 2020.  Specifically, it appears that the previous quarters had federal sentences averaging roughly 38 months, whereas the quarter ending in June 2020 saw federal sentences averaging roughly 30 months.  This leads me speculate that the sentencings that went forward during the COVID period may have generally been the less serious cases and/or that many federal judges were somewhat less inclined to impose longer federal prison terms during the COVID era.

In sum, these latest USSC data show that the number of sentences imposed in the first COVID quarter (April to June 2020) dropped about 40% and the length of the sentences imposed in this period drop over 20%.  Very interesting, and now I am even more eager for the next data run and for even more intricate reporting and analysis from the US Sentencing Commission.

October 26, 2020 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Impact of the coronavirus on criminal justice | Permalink | Comments (0)

Court filing by California Gov seeks tougher rules for state’s death penalty

This local article, headlined "Newsom, California district attorneys seek tighter standards for application of death penalty," reports on a notable new court filing by Governor of California. Here are the details:

Gov. Gavin Newsom, who has already declared a moratorium on executions in California, went a step further Monday with an unprecedented court filing that asserted the state’s death penalty law is applied in a racist manner against African Americans.

Newsom’s state Supreme Court filing did not call for abolition of the death penalty — an option narrowly rejected by California’s voters in 2012 and 2016 — but argued that a jury imposing a death sentence should be required to find beyond a reasonable doubt that it was the proper punishment, rather than life in prison without parole.

The governor also said jurors should be allowed to consider factors favoring the death penalty, such as other violent acts by the defendant, only if they agreed unanimously that those events had occurred. Those standards would make it more difficult for prosecutors to persuade jurors to return a death sentence....

“Since its inception, the American death penalty has been disproportionately applied — first, to enslaved Africans and African Americans, and, later to free Black people. With this filing, we make clear that all Californians deserve the same right to a jury trial that is fair, and that it is a matter of life and death.”

The brief was the first ever filed by a California governor challenging the state’s application of the death penalty and calling for restrictions.  A similar brief was submitted in the same case Monday by four district attorneys — Chesa Boudin of San Francisco, Diana Becton of Contra Costa County, Jeffrey Rosen of Santa Clara County and Tori Verber Salazar of San Joaquin County — and two former district attorneys, George Gascón of San Francisco and Gil Garcetti of Los Angeles County.

The six have varying views on capital punishment, but said in their filing that they wanted to “ensure that the death sentence is chosen (if at all) for only the worst offenders and offenses.”

Boudin, who like every San Francisco district attorney since 1995 has vowed not to seek the death penalty, said, “California’s death penalty is not only inconsistent with the values of a humane society, but is administered in a racially biased way.” Gascón, San Francisco’s chief prosecutor from 2011 to 2019, is running for district attorney in Los Angeles.

Newsom issued an executive order in March 2019, his third month in office, suspending executions in California, which has not executed a prisoner since January 2006.  He said at the time that the death penalty “is inconsistent with our bedrock values and strikes at the very heart of what it means to be a Californian.”

The state has 711 inmates on Death Row — more than one-third of them Black, Newsom said in his court filing. African Americans are also much more likely than others to be arrested and searched by police and to be the victims of police violence, the governor’s lawyers told the court.

The moratorium on executions has not stopped most county prosecutors from seeking death sentences, and has not stopped Attorney General Xavier Becerra’s office from defending those sentences before the state’s high court.

Monday’s filings were submitted in the case of Donte McDaniel, sentenced to death for fatally shooting two people in Los Angeles in 2004 in what prosecutors described as murders related to gangs and drugs.

In preparing for a hearing in McDaniel’s case, the state Supreme Court asked lawyers whether the California law should be interpreted to require jurors to decide beyond a reasonable doubt — the same standard required for convictions — whether death was the proper punishment.  The court also asked whether the law prohibits jurors from considering so-called aggravating factors, like a defendant’s past violent acts, unless they agree on those facts unanimously.

Newsom’s brief and the filing by the current and former prosecutors answered both questions affirmatively.  Requiring jurors to “unanimously determine beyond a reasonable doubt factually disputed aggravating evidence and the ultimate penalty verdict” are essential to preserving “the full protections of the jury right in capital sentencing,” said the governor’s lawyers, Dean Erwin Chemerinsky and Prof. Elisabeth Semel of the UC Berkeley Law School.

UPDATE: I came across the filing by the six current and former DAs, and it can be accessed at this link.  Here is the first paragraph of the filing's introduction:

On June 17, 2020, the Court asked the parties to address the following question: “Do Penal Code section 1042 and article I, section 16 of the California Constitution require that the jury unanimously determine beyond a reasonable doubt factually disputed aggravating evidence and the ultimate penalty verdict?”  This brief addresses that question from the perspective of four present district attorneys and two former district attorneys.  While these amici take different positions as to whether the death penalty should be abolished, they unanimously believe that death sentences are arbitrarily imposed under the current California death penalty statutes, and that the failure to construe the California Constitution and Penal Code Section 1042 to require the jury to choose death beyond a reasonable doubt and to unanimously find disputed facts relating to aggravating circumstances exacerbates the arbitrariness inherent in the State’s death penalty regime.

October 26, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

"Populist Prosecutorial Nullification"

The title of this post is the title of this notable paper authored by Kerrel Murray and available via SSRN.  I flagged this paper in a long list when it first showed up earlier this year.  But with so much voting going on these days, I thought it now especially timely to note the paper again and reprint its abstract:

No one doubts that prosecutors may sometimes decline prosecution notwithstanding factual guilt.  Everyone expects prosecutors to prioritize enforcement based on resource limitation and, occasionally, to decline prosecution on a case-by-case basis when they deem justice requires it.  Recently, however, some state prosecutors have tested the boundaries of this power by asserting the right to refuse categorically to enforce certain state laws.  Examples include refusals to seek the death penalty and refusals to prosecute prostitution or recreational drug use.

There is thus a burgeoning need for a pertinent evaluative framework.  To answer that call, this Article offers the first extended analysis of the normative import of the locally elected status of the state prosecutors who make such pledges.  In so doing, it finds that local elections make all the difference.  There may well be something suspect about unilateral prosecutorial negation of democratically enacted law.  Yet there is something distinctly democratic, and thus justifiable, about an elected prosecutor who can claim popular sanction for the exact same act.

This Article first unspools a once-robust American tradition of localized, populist criminal-law non-enforcement, best seen in jury nullification.  It then applies democratic theory to construct a normative basis for reviving that tradition in the context of state prosecutors’ categorical non-enforcement.  These moves uncover a before-now unappreciated connection: at least where the prosecutor ties her categorical nullification to the polity’s electorally expressed will, she accomplishes wholesale what nullifying juries could once do retail.  Appreciating that relationship helps uncover a phenomenon best thought of as populist prosecutorial nullification.  Building upon that finding, I set out a novel framework for evaluation of state prosecutors’ categorical non-enforcement that is keyed to the concept of localized popular will.

October 26, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

October 25, 2020

Covering just some of many criminal justice reforms stories percolating in 2020 election

Every election is important for the fate and future of criminal justice reform, but every even-year Fall it is hard not to get caught up in the notion that this year's election is uniquely significant and consequential.  As I noted in this prior post, the discussion at the last Prez debate leads me to be (foolishly?) hopeful that we will see some follow up to the FIRST STEP Act or some other form of of federal criminal justice reform in the coming years no matter who prevails at the federal level.  But surely the scope and contents of possible federal reform will depend not only on who is in the White House and who is in charge in Congress, but also on what kinds of reforms move forward and prove successful at the state and local level.   

Because the FIRST STEP Act at the federal level was made possible in part by the political and practical successes at the state level, even those focused primarily on the federal system ought to keep a close eye on state and local criminal justice reform and election realities.  Helpfully, there is a lot of good press coverage on all these topics these days, and here is a sampling:   

Some National Perspectives:

From The Appeal, "Your Guide To 30 Sheriff And Prosecutor Elections That Could Challenge Mass Incarceration: These are key local elections where criminal justice reform is on the line next month."

From the Drug Enforcement and Policy Center, "Drug Reforms on the 2020 Ballot: A closer look at drug policy reform decisions voters will make during the 2020 election"

From Fox News, "Marijuana-legalization supporters tout economic benefits in new voter pitch: Advocates argue sales and excise taxes would help bail out states crushed by coronavirus"

From Reason: "On Criminal Justice, Trump and Biden Are Running Against Their Own Records: The progressive who helped usher in mass incarceration is running against the law and order conservative who let prisoners go free."

From Vox, "How 2020 voters could change the criminal justice system, in 6 ballot measures: Voters in several states have a chance to change the criminal justice system in 2020."

From Vox, "2020’s psychedelic drug ballot measures, explained: Oregon and Washington, DC, voters may relax their laws for psychedelic drugs."

 

Some State Specifics:

From the Denver Post, "Half of Colorado’s district attorneys will be replaced after election, setting scene for future of criminal justice reform"

From Governing, "California to Vote on What’s Next for Criminal Justice Reform: The state’s Proposition 20 would expand felonies which are ineligible for parole and collect DNA samples of misdemeanor offenders. Californians must decide if it assures public safety or is backward progress."

From The Oklahoman: "Five things to know about Oklahoma State Question 805"

From Vox, "Oregon’s ballot measure to decriminalize all drugs, explained: The ballot measure is trying to move the state from a criminal justice to a public health approach on drugs."

October 25, 2020 in Campaign 2020 and sentencing issues, Drug Offense Sentencing, Elections and sentencing issues in political debates, Marijuana Legalization in the States, Who Sentences | Permalink | Comments (2)

Final looks at Judge Amy Coney Barrett's criminal justice record before she starts to build a criminal justice record as a Justice

As I understand matters, the US Senate is poised to confirm Amy Coney Barrett as the next US Supreme Court Justice and the only confirmation question seems to be how many Senate votes she will get on Monday.  But, of course, the big jurisprudential question for sentencing fans is how might a Justice Barrett approach a range of criminal justice issues as an avowed originalist jurist.  The late Justice Scalia and current Justices Alito, Gorsuch, Kavanaugh and Thomas, and even Chief Justice Roberts, lay claim at least some times to being originalists, and yet their votes on a range of constitutional criminal justice issues can and do vary.  And, of course, the Supreme Court considers a host of non-constitutional criminal justice concerns as well.

I have covered some prior analyses of Judge Barrett's criminal justice record in prior posts that can be found linked below.  This week I saw a couple more, and the subheadlines of these pieces highlight that they are developing distinct accounts of what we might expect from a Justice Barrett:

From The Appeal, "Amy Coney Barrett’s Record On Criminal Justice Is ‘Deeply Troubling,’ Reform Advocates Say: In the midst of a national debate about changing the criminal legal system, Barrett is set to take a lifetime seat on the U.S. Supreme Court. Advocates see her addition as a potential setback to creating a more fair system."

From Washington Monthly, "The Criminal Justice of Amy Coney Barrett: The soon-to-be Supreme Court Justice has a more interesting record on prisons, prosecutors and a slew of justice issues than you might think."

The closing paragraph of this second piece provides a fitting final question as we anticipate a new era for SCOTUS with a new Justice:

Barrett has such a well-schooled intellect that all her opinions are intricately woven out of existing case law and statutory text, so — in the criminal justice arena, at least — she has not departed wildly from the web of precedent that confines her. She said more than once at her hearing that a judge is obliged to rule where the law takes her, which may violate her personal views.  But once she’s on the Supreme Court and freer to chart her course, then what?

Notably, we may not have to wait too long to get a glimpse of how a Justice Barrett might approach sentencing and broader criminal justice issues.  Assuming she is confirmed to the Court this week, she will be on the bench in time to hear, on November 3, oral argument in Borden v. US, No. 19-5410 (concerning ACCA application and mens rea matters), and Jones v. Mississippi, No. 18-1259 (concerning application of Miller's Eighth Amendment rules for juvenile LWOP).  And just weeks later, the Court will also hear oral argument, on November 30,  in Van Buren v. USNo. 19-783 (concerning reach of Computer Fraud and Abuse Act), and Edwards v. VannoyNo. 19-5410 (concerning whether the SCOTUS unanimous jury Ramos ruling applies retroactively). 

These criminal cases that a Justice Barrett will be considering in just her first few weeks on the Supreme Court present an array of challenging issues for committed textualists and originalists, especially because these cases implicate in various ways an array of past precedents that a committed textualist and originalist might not be so eager to follow.  Interesting times.

Prior related posts:

October 25, 2020 in Sentences Reconsidered, Who Sentences | Permalink | Comments (0)