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November 7, 2020

"Promoting Expungements to Minimize the Adverse Impact of Substance Use Disorder Criminalization"

The title of this post is the title of this notable new article authored by Brittany Kelly, John Heinz, Anthony Singer and Aila Hoss now available via SSRN.  Here is its abstract:

Research has already documented the irreparable harm of the criminalization of drugs.  In the United States, these policies have led to disproportionate rates of incarceration of black men, separated children from their parents in foster care and custody proceedings, and often left people unable to secure employment and housing.  Criminalization has also had harmful impacts from a public health perspective.  Substance use disorder is a medical condition with established criteria for diagnosis.  Criminalizing SUD instead of treating it often leaves people without access to treatment for their condition.  Criminalization of drug paraphernalia possession has also undermined the efficacy of public health strategies, such as overdose immunity laws and syringe service programs.

Many advocates and scholars across human rights, public health, and other disciplines argue that decriminalization and legalization of drugs is necessary.  While some states and localities have begun to decriminalize and legalize drugs, most do not.  And, in many jurisdictions, this would be unrealistic in the near future.  Indiana law, for example, makes possession of drug paraphernalia a misdemeanor offense.  The state legislature in fact elevated syringe possession to a felony in 2015.  What other legal strategies are available when decriminalization and legalization are not?

This article explores expungement as a tool in mitigating the harmful impacts of criminalizing substance use disorder.  It discusses the inadequacies of current criminal-based strategies for responding to the SUD crisis and the public health impacts of criminalization and describes expungement law generally and provides an in-depth summary of Indiana’s expungement laws.  Given the substantial nuances within expungement law, this article provides analysis on how they can be best structured to promote their use.  It argues that Indiana could implement a variety of strategies to promote expungement laws and thereby support individuals with substance use disorder.

November 7, 2020 in Collateral consequences, Drug Offense Sentencing | Permalink | Comments (0)

November 6, 2020

Can we be hopeful federal leaders will make deals to advance federal criminal justice reforms in the next Congress?

The question in the title of this post, which I am most eager to answer in the affirmative, results from reading this new Politico article headlined "America's new power couple: Mitch and Joe; How a Biden presidency and McConnell-led Senate might actually get along."  It still feels a bit too early, since lots of votes are still being counted, to start mapping out possible legislative agendas for the next two years.  But these passages have me thinking about the prospects for more (badly needed) federal criminal justice reforms:

During Barack Obama’s presidency, Joe Biden’s propensity for cutting deals with Mitch McConnell became a running source of aggravation for liberals. Now it will be the key to getting anything done at all.  “Some of the Democrats would say, ‘Joe always wants to make a deal. Joe always wants to make a deal.’ And I’m thinking: ‘Hell, yeah, that’s his job.’” Sen. Joe Manchin (D-W.Va.) said in an interview Thursday. “Why wouldn’t he want to make a deal?”...

McConnell and Biden may have reason to find some common ground.  Under Trump, McConnell has already succeeded in his longtime goal of reshaping the judiciary; soon his role will shift to the most powerful Republican in Washington who must also defend a razor-thin majority.  And Biden was elected running not on the most liberal agenda but in part on his ability to work with the other side, predicting “you'll see an epiphany occur among many of my Republican friends” if Trump loses...

Democratic officials are already acknowledging that their legislative ambitions are much smaller than they were a week ago, but they think there is room for agreement on things like a coronavirus aid package, infrastructure, higher education and rural broadband.  Republicans mostly agree....

The Biden team and Biden himself are thinking through how McConnell as majority leader will reshape his administration and wondering if McConnell will be a deal-maker or the kind of antagonist who said making Obama a one-term president was his top priority, according to an official close with the Biden team.

I am disappointed that this article does not list criminal justice reform as a subject matter where "there is room for agreement," but long-time readers know how criminal justice has become an arena for important bipartisan discussion and work.  And looking back at the notable criminal justice reform recommendations [available here] from the Biden-Sanders Unity Task Force (discussed here), there are at least a few of the listed priorities that ought to be able to garner some bipartisan support (though some are a lot more likely than others):

Mandatory Minimums: Empower judges to determine appropriate sentences, by fighting to repeal mandatory minimums at the federal level and give states incentives to repeal their mandatory minimums.

Retroactive Reforms: Make all sentencing reforms retroactive to allow for individualized resentencing.

Crack/Cocaine Sentencing Disparity: End the federal crack and powder cocaine disparity in sentences, and make the change retroactive....

Compassionate Release: Reinvigorate compassionate release so that the sick and elderly are transitioned out of incarceration so long as they do not pose a public safety risk....

Removing barriers to reentry: Remove restrictions on access to public housing, employment, occupational licenses, driver’s licenses, and public benefits.  Create a U.S. Reentry Commission to conduct a comprehensive review of barriers to reentry, with the goal of taking executive action and proposing legislation to remove as many as possible.  Include recommendations for reforming parole and probation, including preventing reincarceration for technical violations, as well as expungement and sealing of convictions.

The line in the Politico article noting that "McConnell has already succeeded in his longtime goal of reshaping the judiciary" has me wondering whether Senator McConnell might be less adverse to giving federal judges significantly more sentencing discretion now that he views so many as the product of his own king-making.

November 6, 2020 in Campaign 2020 and sentencing issues, Who Sentences | Permalink | Comments (0)

November 5, 2020

An effective disquisition on the drug war's descent

This lengthy new New York Times article provides a thoughtful review of how diverse coalitions have now come together to start unwinding the war on drugs. The full title of this piece highlights its themes: "This Election, a Divided America Stands United on One Topic: All kinds of Americans have turned their back on the destructive war on drugs." I recommend the full piece, and here is how it starts and ends:

It can take a while to determine the victor in a presidential election.  But one winner was abundantly clear on Election Day. Drugs, once thought to be the scourge of a healthy society, are getting public recognition as a part of American life. Where drugs were on the ballot on Tuesday, they won handily.

New Jersey, South Dakota, Montana and Arizona joined 11 other states that had already legalized recreational marijuana. Mississippi and South Dakota made medical marijuana legal, bringing the total to 35.

The citizens of Washington, D.C., voted to decriminalize psilocybin, the organic compound active in psychedelic mushrooms. Oregon voters approved two drug-related initiatives. One decriminalized possession of small amounts of illegal drugs including heroin, cocaine and methamphetamines. (It did not make it legal to sell the drugs.) Another measure authorized the creation of a state program to license providers of psilocybin.

Election night represented a significant victory for three forces pushing for drug reform for different but interlocking reasons. There is the increasingly powerful cannabis industry. There are state governments struggling with budget shortfalls, hungry to fill coffers in the midst of a pandemic.

And then there are the reform advocates, who for decades have been saying that imprisonment, federal mandatory minimum sentences and prohibitive cash bail for drug charges ruin lives and communities, particularly those of Black Americans.

Decriminalization is popular, in part, because Americans believe that too many people are in jails and prisons, and also because Americans personally affected by the country’s continuing opioid crisis have been persuaded to see drugs as a public health issue....

If states are the laboratories of democracy, then, as Mr. Pollan put it, some of the measures passed on Tuesday will set up interesting experiments.  Neighboring states will watch as Montana and New Jersey create regional cannabis destinations to be envied, imitated or scorned; unlike some other states, Montana and New Jersey do not directly border states where marijuana is fully legal, so they could draw more customers from out of state (though it is illegal to bring marijuana into a state where it is criminal). 

And it’s not entirely clear that marijuana is always the fiscal boost its champions say it is, even as cannabis tourism has helped states like California and Colorado. A state assessment of the financial impact of legalization in Montana, for example, showed that the state expected significant revenue — as much as $48 million a year in 2025 — but that its implementation costs would be nearly as high.

Policy wonks will assess the performance of Oregon’s health authority as it creates its program to license psilocybin distributors, an unusual function for a state department of health regardless of the drug in question.  And Americans all over the country will note — warily or hopefully — what happens in Oregon, now that possession of all controlled substances has been decriminalized.

Adam Eidinger, an activist in Washington, D.C., who proposed the ballot measure that pushed to legalize marijuana there, was also the treasurer of the campaign to decriminalize psilocybin.  (The campaign operated out of his house in the Kalorama neighborhood, home to the Obamas and Jared Kushner and Ivanka Trump.)

Next year, Mr. Eidinger plans to campaign for an initiative in D.C. to decriminalize possession of all controlled substances, much like the one that passed in Oregon. “People want to end the drug war,” he said.

Mr. Sabet, the former White House drug policy adviser, did not expect the nation to follow in Oregon’s footsteps — at least not immediately. “I don’t know if I’d put my money on America wanting to legalize heroin tomorrow,” he said.

November 5, 2020 in Campaign 2020 and sentencing issues, Drug Offense Sentencing, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

"The Compassionate Computer: Algorithms, Sentencing, and Mercy"

The title of this post is the title of this notable new article by Netanel Dagan now available on SSRN. Here is its abstract:

Sentencing scholarship largely neglects the possibility of applying algorithms to mercy.  This ‎doesn’t come as a surprise: Is there any greater contradiction than between algorithmic decision-‎making and the compassionate, human and interpersonal nature of mercy?   Such polarity brings ‎some theorists and policy makers to reject algorithm-based sentencing altogether. 

In this chapter, ‎we offer a preliminary attempt at integrating mercy within algorithmic sentencing.  First, we ‎distinguish between two main concepts of mercy — justice and pure — and different types of ‎algorithms — deductive and inductive.  Second, we argue: (a) As long as justice mercy can be ‎reduced to a proportionality-related calculus (e.g., extra harsh suffering) it can be introduced ‎through a deductive algorithm; (b) Pure mercy, being unpredictable, and deviating from justice, ‎can be incorporated mainly through an inductive algorithm.  This is true, at least to some extent, ‎even for theories that permit deviation from equality when exercising mercy.‎

November 5, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

New Jersey COVID-related prison releases results in single-day 15% drop of state's prison population

As detailed in this local article, headlined "'It's over, baby': NJ begins releasing inmates who survived COVID spread in prisons," there was a big reform story in New Jersey that became an especially tangible reality yesterday.  Here are some of the details:

"I'm coming out!" Lissette Cardoso shouted through a second-floor window of a beige, nondescript halfway house in Paterson.  Four family members stood on the street in the cold outside.  They'd been waiting for more than 10 years.

Cardoso walked out of the halfway house just before 8:30 a.m. Wednesday, after a decade-long prison term for a string of convenience store robberies.  Her sentence ended three months early and with a kiss to her boyfriend — through their masks — amid a flood of hugs and tears.  "It's over, baby," Luz Salamanca, Cardoso's sister, said as Salamanca's daughter kissed Cardoso's cheeks.  "It's over, you hear me?"

Cardoso was one of thousands of people expected to leave state prisons and halfway houses on Wednesday under a first-in-the-nation law reducing sentences for inmates who served time during the coronavirus pandemic.  State officials said 2,261 inmates would be released throughout the day, marking a single-day drop of 15% in the state prison population.

The drastic decline was lawmakers' response to the coronavirus's devastation in New Jersey prisons.  The death rate inside Garden State prisons was the highest in the nation, according to the nonprofit criminal justice newsroom The Marshall Project....

While Gov. Phil Murphy has scored high marks with the public for his handling of the virus overall, prisons remained a trouble spot.  Murphy and his administration were criticized for moving too slowly to test the incarcerated population and reduce the number of people locked up, both efforts seen as key ways to slow the contagious virus's spread in a setting where social distancing is nearly impossible.

In fact, all but one of the 52 COVID-related deaths in state prisons were reported after Murphy in April created a framework for people to be released.  Lawmakers and prisoner advocacy groups said Murphy's plan allowed the corrections commissioner, Marcus Hicks, too much discretion and that more people should have gotten out.

Ultimately lawmakers put forward a bill, S2519, that reduced sentences by up to eight months for inmates who served during the public health emergency.  According to the American Civil Liberties Union and Prison Policy Initiative, the effort is unique in the nation because it changed state law instead of leaving action up to the executive branch.

Only inmates who are within a year of release are eligible for time off their sentences, and those convicted of murder and some sexual offenses are not allowed to get out early. The law will also give inmates time off if there is another public health emergency.  "We now have a system in place that allows us to be prepared the next time there is an infectious disease that causes pandemonium in our prison systems," said Alexander Shalom, senior supervising attorney and director of Supreme Court advocacy for the ACLU in New Jersey. "And that puts us really far ahead.”

But the law wasn't easily passed.  It was delayed for weeks in Trenton because of concerns that the state cut funding for reentry programs just as it was about to embark on an unprecedented release effort.  Ultimately that state aid was replenished, and Murphy signed the bill into law last month, greenlighting up to 3,000 releases over the next three months. The bulk of those inmates were to get out Wednesday....

While many New Jerseyans were awaiting election results early Wednesday, an informal army of advocates, religious leaders and reentry professionals flooded transit centers, hoping to catch people as they were released.  Each inmate met with a social services worker before being released to connect them with resources, according to Department of Corrections spokeswoman Liz Velez.  The department also gave people with a financial need a food stipend, packages of food or "an emergency supportive stipend to those who have indicated the greatest hardship," she said.

Velez said on Tuesday afternoon, the eve of the releases, that she did not have numbers of how many people had been given identification cards or enrolled in benefits like food stamps or Medicaid.  Releasing a large number of people all at once has prompted concern among some reentry groups and officials, who said the Murphy administration was not providing them enough information to identify who needs help.

November 5, 2020 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

November 4, 2020

"Drugs Won Big During the U.S. Election"

The title of this post is the title of this Vice piece highlighting one clear pattern of clear winners during election 2020. Here are excerpts:

Despite the uncertainty over the outcome of the U.S. presidential race Wednesday morning, Mississippi cannabis advocate Natalie Jones Bonner was feeling “absolute joy.”  Jones Bonner, 59, was celebrating the passing of Initiative 65, a ballot measure that will establish a medical cannabis program in the state.

Mississippi is one of a handful of states to pass drug reform measures last night.  In a groundbreaking decision, Oregon voted to support Measure 110, which will decriminalize all drugs, including cocaine and heroin.  Oregon also voted to legalize access to psychedelic mushrooms for medicinal purposes.

Arizona, Montana, New Jersey, and South Dakota all voted to legalize cannabis for recreational purposes.  South Dakota additionally voted yes to establishing a medical cannabis regime. Voters in the District of Columbia passed a measure to decriminalize shrooms.

The outcomes are a boon for drug reform advocates and the cannabis industry, making the possibility of federal weed decriminalization more feasible.  Currently, 33 states allow medical cannabis and 11 have recreational regimes.  Several of the states that passed measures last night have historically been proponents of the war on drugs, with Black people disproportionately arrested for drug crimes....

Matt Sutton, spokesman for the Drug Policy Alliance, said the support of drug reform is crucial in the context of wider conversations around police brutality and the failings of the criminal justice system.  He said Oregon’s decriminalization measure could result in a 95 percent decrease in racial disparities in arrests, according to the Oregon Criminal Justice Commission.

Sutton said it’s “remarkable” that weed legalization would pass in states like Montana, which has the highest rate of racial disparities in weed arrests, and South Dakota, where 10 percent of all arrests are tied to cannabis.

Economic gains, particularly as the pandemic is draining state resources, are in part behind the bilateral support of cannabis reform.  Sutton said he expects New Jersey’s decision to legalize cannabis to light a fire under New York, which has stalled in setting up its legal recreational regime.

Over at Marijuana Law, Policy & Reform I have been blogging a few reactions to marijuana's big election night via these two new posts:

November 4, 2020 in Campaign 2020 and sentencing issues, Drug Offense Sentencing, Elections and sentencing issues in political debates, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

California voters reject ballot initiatives to roll back sentencing reforms and to eliminate cash bail among other notable votes

As reported in this AP piece, there were some notable mixed results on a number of California criminal justice ballot initiatives.  Here is the AP accounting of the two biggest items:

California has upheld several criminal justice changes, endorsing recent efforts to ease mass incarceration by reducing penalties and allowing for earlier releases. Voters also appeared likely to maintain the state’s current cash bail system as a majority opted for the status quo on both criminal justice ballot measures.

Voters on Tuesday defeated Proposition 20, rejecting supporters’ pleas to address what they called the “unintended consequences” of two previously approved ballot measures. One lowered penalties for drug and property crimes in 2014, while the second two years later allowed the earlier parole of most felons.

Voters by a 63% to 37% margin rejected proposals that would have barred criminals convicted of certain serious offenses from earlier release, increased penalties for repeated retail thefts, toughened parole standards and allowed for broader DNA collections.  Opponents said the measure would have set back reforms just as the nation focuses on a criminal justice system that has treated people of color inequitably.

Jay Jordan, executive director of Californians for Safety and Justice that backed the reforms, called the proposition’s defeat “a significant milestone in California’s ongoing effort to make its criminal justice system more effective” and said it would advance national reform efforts. Former governor Jerry Brown championed the 2016 ballot measure that allowed most felons to seek earlier parole and put $1 million of his remaining campaign funds into contesting Proposition 20....

Voters were also leaning toward keeping the state’s current cash bail system, with 55% rejecting a law passed in 2018 that would substitute risk assessments to decide who should remain in jail awaiting trial. The law stalled when the bail industry went to the ballot box.

Even some prominent civil rights groups agreed the system is broken but said the proposed fix might be even worse because it relies on risk assessments that The Bail Project says “codify systemic racism and could lead to higher rates of incarceration in some jurisdictions.”

State Sen. Bob Hertzberg, a Democrat from Los Angeles who wrote the law, said before Election Day that ending cash bail would put California “on the path to a more fair and more safe justice system that treats everyone equally under the law.” While most states recently have altered their pretrial release laws or policies, voters’ approval of Proposition 25 would make California “the only state with a complete prohibition on fiscal conditions of release,” according to National Conference of State Legislatures criminal justice expert Amber Widgery.

Under the new system, no one would pay bail and most misdemeanor suspects would remain free. Those charged with felonies or misdemeanor domestic violence, sex offenses or driving while intoxicated would be evaluated for their perceived risk of committing another crime or not appearing in court. Most would eventually be released, unless they are accused of certain crimes like murder or arson, or if a judge finds there are no conditions like electronic monitoring that could ensure their appearance at future hearings.

All the results of the California propositions can be found on in this article, which notes that another notable criminal justice reform passes:

Proposition 17 –  Allow Felon Parolees to Vote (Yes = 59.0%, No = 41.0%)

The passage of Proposition 17 grants the right to vote to parolees with felony convictions. Imprisoned convicted felons remain disqualified from voting.

And this Los Angeles Times piece, headlined "From George Gascón to jail diversion, criminal justice reform got a big boost in California," highlights the criminal-justice-reform-minded votes in Los Angeles bringing in a new DA and a local measure requiring "that 10% of locally generated, unrestricted county money — estimated between $360 million and $900 million — be spent on a variety of social services, including housing, mental health treatment and investments in communities disproportionally harmed by racism [while] the county would be prohibited from using the money on prisons, jails or law enforcement agencies."

November 4, 2020 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Rounding up some accounts of SCOTUS oral arguments in Jones, the latest juvenile LWOP case

I listened live yesterday morning to the Supreme Court oral argument in Jones v. Mississippi18-1259, which will address "Whether the Eighth Amendment requires the sentencing authority to make a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole."  The full argument in Jones is available here, and it is worth the 90 minutes for a full listen because nearly all the Justices were quite engaged and the arguments by counsel were consistently strong and interesting.

If you would rather read accounts of the case and argument, here are a few: 

From Kent Scheidegger at Crime & Consequences, "An Aggressive Interpretation of Precedent

From Amy Howe and SCOTUSblog, "Argument analysis: Justices debate requirements for life sentences for juveniles"

From Nina Totenberg at NPR, "Supreme Court Examines When Juveniles May Be Sentenced to Life Without Parole"

From Steven Erickson at Crime & Consequences, "The Muddy Waters of Miller"

From Mark Walsr at Education Week, "High Court Weighs Whether Juvenile Life Without Parole Requires 'Incorrigibility'"

November 4, 2020 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

"Retributivism and Over-Punishment"

The title of this post is the title of this new paper recently posted to SSRN and authored by Douglas Husak.  Here is its abstract:

I argue that a retributive penal philosophy should not be blamed for contributing to our present epidemic of mass incarceration and tendency to over-punish.  My paper has three parts.  In the first, I make a number of conceptual points about retributivism that reveal it to have the resources to combat our current crisis.  In the second part, I construct desert-based arguments for decriminalizing some offenses that have led too many persons to be punished.  In the third part, I suggest that desert favors an expansion in the scope and number of defenses that have the potential to retard the severity of punishment.  If my arguments are sound, retributivism should be regarded as part of the solution to our predicament rather than its cause.

November 4, 2020 in Purposes of Punishment and Sentencing, Second Amendment issues | Permalink | Comments (0)

November 3, 2020

Sentencing reform ballot initiative in Oklahoma, SQ 805, appears likely to lose badly

I have been following closely, as highlighted by prior posted noted below, the interesting ballot initiative in Oklahoma seeking to limit the impact of nonviolent criminal history on sentencing outcomes.  Notably, back in 2016, Oklahoma voters approved a ballot initiative downgrading drug possession and a slate of minor property crimes from felonies to misdemeanors.  So state voters have a history of backing sentencing reform via ballot initiative.  But it seems that SQ 805 did not garner comparable support from Sooner voters.

Specifically, as of 10:15pm EST as reported here, there are over 88% of precincts reporting, and the NO vote has nearly 61% while the YES votes is just over 39%.  So it looks like this ballot initiative will not just lose, but lose by a sufficiently large margin that it might discourage other related reform efforts in the near future.

Prior related posts:

November 3, 2020 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, Offender Characteristics, Who Sentences | Permalink | Comments (0)

Some places to watch for results on criminal justice ballot initiatives

Images (2)The folks at Vox have created this webpage which will help track "live results" from some of the criminal justice ballot initiatives that voters are considering today around the country. Here is the set up:

In Oklahoma, voters could ban harsh sentencing enhancements that can keep people in prison longer for nonviolent crimes. In California, voters will consider three measures: one to affirm the end of cash bail, another to let people vote while on parole, and a third to roll back recent criminal justice reforms. In Nebraska and Utah, voters could prohibit slavery as a criminal punishment, including forced prison labor.  And in Kentucky, voters could approve a controversial crime victims’ rights law.

Not all of these are for reform as many people think of it today. Some of the initiatives, particularly in California and Kentucky, have been criticized by activists seeking to end mass incarceration and the war on drugs. But depending on how voters decide on these initiatives, they could continue the broader work of the past decade to fix America’s punitive criminal justice system.

The Vox page leaves out the large number of drug reform initiatives, but thankfully the folks at Marijuana Moment have created this great webpage with tracking tools to follow all the marijuana and drug reform ballot initiatives that voters are considering today around the country.  Here is how its set up:  

Marijuana Moment is tracking 11 separate cannabis and drug policy reform measures on ballots in seven states.  Stay tuned to this page for results as votes are counted.

Make sure to follow Marijuana Moment and our editors Tom Angell and Kyle Jaeger on Twitter for live news and analysis, and check our homepage for individual articles about each ballot measure as races are called.

Thanks to support from ETFMG | MJ, we have a single tracker tool below that lets you cycle through all of the key measures as well as separate standalone tools for each initiative.

And do not forget about this great web resource put together by the folks I have the honor to work with at The Ohio State University Moritz College of Law's Drug Enforcement and Policy Center.  The resource collects and organizes information and links about the significant number of drug policy reforms proposals appearing on state ballots this election cycle.  

Though I am interested in all these results, I am especially eager to see how Oklahoma's novel criminal history reform measure, how South Dakota's marijuana legalization initiative, and how Oregon's drug decriminalization measure fare. The nature of the issues and the states in which they are taking place strike me as especially interesting and important.

As always, I would be interested to hear from readers about what issues or races they are following especially closely tonight.

November 3, 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 (0)

"Shrinking the Accountability Deficit in Capital Charging"

The title of this post is the title of this paper authored by Sherod Thaxton and recently posted to SSRN. Here is its abstract:

The price of capital trials, appeals, and clemency proceedings have skyrocketed since the U.S. Supreme Court lifted its moratorium on the death penalty, but this has not translated to more reliable case outcomes — the rate of serious reversible error and wrongful convictions has steadily increased during the same time period.  The overly aggressive use of the death penalty by prosecutors has not only been convincingly linked to these high reversal rates, but may also increase crime, decrease the likelihood of arrests for homicides, and lead to heightened risks of miscarriages of justice for non‐capital defendants.  It follows that limiting hawkish prosecutorial decision‐making in potentially capital cases may be particularly effective in reducing the prevalence of error and reducing unnecessary expense.  Curbing the virtually unfettered discretion of prosecutors is not a new idea, but extant proposals tend to suffer from shortcomings that are likely to render them impractical or ineffective.  Any viable legal intervention must increase prosecutorial accountability for inadequate charge‐screening in capital cases while still permitting prosecutors to retain discretion in seeking the death penalty.  This essay describes a reform that consists of two primary components: (1) an advisory (i.e., non‐binding) opinion from a reviewing authority assessing the appropriateness of a prosecutor’s decision to seek the death penalty in a case based on the totality of evidence, and (2) financial and administrative cost-shifting mechanisms capable of disincentivizing prosecutorial overreaching in capital charging.

November 3, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Listening to today's SCOTUS oral argument in two big sentencing cases

The year 2020 has been remarkable for so many reasons, and this morning it means for me a focus on the Supreme Court rather than on voting on this historic 2020 Election Day.  This is because I already voted early (about two weeks ago, in fact), and COVID realities mean that oral arguments are now available in real time.  And because SCOTUS this morning just happens to be hearing its two biggest sentencing cases on the docket, I plan to listen in live.  Here are the basics thanks to SCOTUSblog with links to where all can listen:

Jones v. Mississippi, 18-1259 

Issue: Whether the Eighth Amendment requires the sentencing authority to make a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole.

 LISTEN to Jones HERE

 

Borden v. United States, 19-5410

Issue: Whether the “use of force” clause in the Armed Career Criminal Act encompasses crimes with a mens rea of mere recklessness.

LISTEN to Borden HERE

November 3, 2020 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

November 2, 2020

Reviewing just some of many Campaign 2020 posts

My very first post this election cycle, which for which I created the category archive Campaign 2020 and sentencing issues, was way back in February 2019.  Over 20 months and nearly 100 posts later, I am so very glad that Campaign 2020 is now so very close to being over.  And I am also glad that Election Night eve gives me an excuse to review posts from this election cycle and flag 10 posts now worth highlighting again:

From February 2019, Brennan Center produces policy brief on "Ending Mass Incarceration: A Presidential Agenda" 

From April 2019, Spotlighting how "politicians are catching up with American voters" on criminal justice reforms 

From July 2019, Former Veep Joe Biden releases extended "Plan for Strengthening America’s Commitment to Justice" 

From September 2019, Prez Trump has reportedly soured on politics of criminal justice reform after FIRST STEP Act achievement

From January 2020, Might the 2020 campaign bring back "law and order" as a political wedge issue?

From February 2020, Noting political import and impact of Prez Trump's Super Bowl ad touting criminal justice reform 

From July 2020, Notable criminal justice reform recommendations from Biden-Sanders Unity Task Force 

From August 2020, "The RNC Can't Figure Out Where It Stands on Criminal Justice Reform" 

From October 2020, Some notable (and mostly heartening) criminal justice discussion in final Prez debate of 2020 

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

November 2, 2020 in Campaign 2020 and sentencing issues, Who Sentences | Permalink | Comments (0)

Background reading before argument in Jones v. Mississippi, the latest SCOTUS foray into Eighth Amendment limits on juve sentencing

Remarkably, it has been more than a decade since the US Supreme Court kicked off its interesting (and uncertain) new line of Eighth Amendment jurisprudence with its ruling in Graham v. Florida, 560 U.S. 48 (2010)Graham declared sentencing juveniles to life without parole (LWOP) for non-homicide offenses to be unconstitutional, and was quickly followed by Miller v. Alabama, 567 U.S. 460 (2012), which held that mandatory LWOP sentences were unconstitutional for juveniles convicted of homicide. Four years later, Montgomery v. Louisiana, 136 S. Ct. 718 (2016), declared that Miller was to be applied retroactively, and now Jones v. Mississippi will explore exactly what Miller and these other cases actually mean for discretionary sentencing of juvenile homicide offenders.

A whole lot of amicus briefs have been filed in Jones on both sides, and the US Solicitor General has also weighed in and been granted leave to participate in tomorrow's scheduled oral argument.  Amy Howe at SCOTUSblog has this preview, which sets up the case this way:

After Miller and Montgomery, state courts can sentence individual juveniles to life without the possibility of parole as long as the sentence is not a mandatory penalty under state law.  On Tuesday, the justices will hear oral argument in a case that asks them to decide what their rulings in Miller and Montgomery require states to do before imposing that sentence.  A Mississippi man contends that the sentencer must find that the juvenile is incapable of rehabilitation, while the state counters that it is enough that the sentencer considered the juvenile’s youth.

For those looking for other background reading beyond the briefs, there have been a number of good commentaries about the issues in this line of rulings published recently:

-- by Brandon Garrett in The Atlantic, "Life Without Parole for Kids Is Cruelty With No Benefit: The United States is the only country that allows this practice, and soon the Supreme Court could get rid of it."

-- by Katie Rose Quandt in In These Times, "The Supreme Court Said Their Sentencing Was Unconstitutional. But They’re Still Behind Bars. Despite SCOTUS rulings against life without parole sentences for juveniles, most who received that sentence remain incarcerated." 

-- by Marc Levin in the Texas Lawyer, "On Election Day, Remember All Youths Are Candidates for Change"

I am looking forward to the Court's consideration of Jones in part because the case presents the three newest Justices with their first big opportunity to weigh in on the Eighth Amendment in a noncapital case.  Based on Justice Gorsuch's work in capital Eighth Amendment cases, I am not expecting him to be a vote for an expansive interpretation of Miller.  But, especially because Justice Kavanaugh and Justice Barrett both are parents to teenage kids, I am wondering if they might be a bit more open to a more expansive view of the Eighth Amendment in this context.

November 2, 2020 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Will reform of quirky approach to jury sentencing greatly impact Virginia's criminal justice system?

A helpful reader reminded me that I had forgotten to blog about a recent significant change in sentencing procedure in Virginia, which is effectively explained in this local article from a few weeks ago headlined "Virginia lawmakers vote to reform 224-year-old jury sentencing law."  Here are the basics:

Virginia lawmakers passed a closely watched bill Friday aimed at ensuring people can exercise their right to a jury trial without risking much steeper punishments.

Criminal justice reform advocates frequently called the legislation one of the most important changes the General Assembly could adopt during a special legislative session that has been largely devoted to issues of policing, courts and prisons.  “Everything else is window dressing compared to this bill,” said Sen. Joe Morrissey, D-Richmond, who proposed the measure.  “The result will be an end to excessive sentencing in the Commonwealth of Virginia.”

Virginia and Kentucky are currently the only two states where if a defendant or prosecutor asks for a jury trial, the jury must also hand down the sentence....  Morrissey’s bill will transfer sentencing responsibilities to the judge unless a defendant specifically requests it be set by the jury.

The state’s unusual approach to sentencing dates to 1796 and has been called the jury penalty because it often leads to criminal sentences that are significantly longer than defendants would have faced if they had opted for a trial before a judge or taken a prosecutor’s plea deal.  That’s because unlike judges, juries must hand down sentences that fall within statutory sentencing ranges.  And unlike judges, juries aren’t provided the sentencing guidelines that tell them what the typical punishment is for a similarly situated defendant.

That means a defendant facing a robbery or drug distribution charge would face a five year mandatory sentence if a jury finds him guilty, whereas a judge issuing the sentence could suspend time based on the facts of the case and mitigating circumstances.  Juries exceeded sentencing guidelines in half of the cases they heard in 2018, according to the Virginia Sentencing Commission, which found they issued prison sentences that were on average four years longer than would have been recommended.  Judges, meanwhile, handed down sentences that exceeded guidelines in just 9 percent of cases.

Lawmakers and advocates say prosecutors often take advantage of the arrangement by tacking on charges with steep mandatory penalties and threatening to demand a jury trial if the defendant doesn’t accept a plea agreement. “Most defendants plead out, even when they did not do it.  This is a very difficult decision people have to make,” said Del. Don Scott, D-Portsmouth, who like many lawmakers argued the leverage the law gives to prosecutors contributes to Virginia’s higher than average incarceration rates.  “This would be a revolutionary change in the way we do sentencing.”

While the bill won limited bi-partisan support, Republicans mostly opposed the measure, as did most prosecutors in the state.  They warned that the reform could lead to a huge uptick in jury trials that would require more judges, more courtrooms and more prosecutors — all things that would cost the state millions of dollars.... 

The Virginia Association of Commonwealth’s Attorneys estimated the change could lead to an eightfold increase in jury trials, writing in a letter to lawmakers that without additional money to hire more prosecutors, they’d be forced to agree to plea deals “that are not commensurate with the crime or the harm inflicted upon the victim.”...

Supporters of the bill, which included a contingent of commonwealth’s attorneys from some of the state’s most populated areas, said the concerns about an explosion of jury trials were misplaced, noting that Virginia would simply be adopting the system already used in most states.  And even if the number of jury trials did increase, that would only prove that the existing system was preventing defendants from exercising their constitutional rights.

I would like to be optimistic that this procedural reform would ensure an "end to excessive sentencing" in Virginia, but we see an awful lot of excessive sentencing in a lot of other jurisdictions that have a more "traditional" approach to trials and sentencing.  And, as the question in the title of this post is meant to suggest, I sincerely doubt Virginia will see a huge increase in jury trial  after this law becomes effective.  As we see nationwide, in all jurisdictions, there are a broad array of legal and structural factors that create, in the words of Justice Kennedy in Lafler v. Cooper, 566 U.S.156 (2012), "the reality that criminal justice today is for the most part a system of pleas, not a system of trials."

Because I generally believe juries should play a larger role in the administration of our modern criminal justice systems, I tend to be a supporter of jury sentencing in principle.  But Virginia's recent experiences, which prompted these latest reforms, serve as an important reminder that just how jury sentencing operates in practice plays a critical role in whether this form of sentencing can serve as a help or hinderance to a more fair and transparent and effective criminal justice system.

November 2, 2020 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

No new cert grants from SCOTUS, but order lists includes interesting per curiam reversals including one on prison conditions and qualified immunity

This morning's Supreme Court order list starts by noting that "Justice Barrett took no part in the consideration or decision of the motions or petitions appearing on this Order List." That fact may in part explain why the Court did not grant certiorari in any cases. But the order list is still an interesting read because it included two per curiam opinions, in McKesson v. Doe and Taylor v. Riojas, summarily reversing lower court opinion to order further proceedings in the Fifth Circuit. 

The fed courts nerd in me really likes Mckesson decision because it orders the Fifth Circuit to certify a fascinating questions of Louisiana tort law to the Louisiana Supreme Court in an effort to potentially avoid having to resolve a challenging First Amendment question.  But the Taylor decision gets to the issue of prison conditions and qualified immunity because "Petitioner Trent Taylor is an inmate in the custody of the Texas Department of Criminal Justice [who alleged] that, for six full days in September 2013, correctional officers confined him in a pair of shockingly unsanitary cells."  Here is how SCOTUS kept his lawsuit going:

The Fifth Circuit erred in granting the officers qualified immunity on this basis.  “Qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted.”  Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam).  But no reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time.  See Hope, 536 U.S., at 741 (explaining that “‘a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question’” (quoting United States v. Lanier, 520 U.S. 259, 271 (1997))); 536 U.S., at 745 (holding that “[t]he obvious cruelty inherent” in putting inmates in certain wantonly “degrading and dangerous” situations provides officers “with some notice that their alleged conduct violate[s]” the Eighth Amendment).  The Fifth Circuit identified no evidence that the conditions of Taylor’s confinement were compelled by necessity or exigency.  Nor does the summary-judgment record reveal any reason to suspect that the conditions of Taylor’s confinement could not have been mitigated, either in degree or duration.  And although an officer-by-officer analysis will be necessary on remand, the record suggests that at least some officers involved in Taylor’s ordeal were deliberately indifferent to the conditions of his cells.

Notably, only Justice Thomas dissented from the Taylor ruling in favor of the prisoner in Taylor, although Justice Alito wrote an extended "concurring in the judgment" statement to explain why he thoughts the "petition [was] ill-suited for review."

November 2, 2020 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

November 1, 2020

"Life Without Parole Sentencing in North Carolina"

The title of this post is the title of this notable new paper authored by Brandon Garrett, Travis Seale-Carlisle, Karima Modjadidi and Kristen Renberg now available via SSRN.  Here is its abstract:

What explains the puzzle of life without parole (LWOP) sentencing in the United States?  In the past two decades, LWOP sentences have reached record highs, with over 50,000 prisoners serving LWOP.  Yet during this same period, homicide rates have steadily declined.  The U.S. Supreme Court has limited the use of juvenile LWOP in Eighth Amendment rulings. Further, death sentences have steeply declined, reaching record lows.  Although research has examined drivers of incarceration patterns for certain sentences, there has been little research on LWOP imposition.

To shed light on what might explain the sudden rise of LWOP, we examine characteristics of the more than 1,627 cases in which LWOP was imposed from 1995 to 2017, in North Carolina, one of the states that imposes the largest numbers of these sentences.  We begin by analyzing defendant race, crime, and sentence patterns by county.  We associate LWOP with homicide rates, and examine interactions between homicide, victim race, and prior LWOP sentencing. 

This first empirical analysis of adult LWOP sentences finds important local variations in its imposition.  We find that as the homicide rate increases within a county, we observe fewer LWOP sentences.  We find that fewer LWOP sentences are predicted to occur as the number of black victim homicides increase in a county, but no such relationship is found when considering the number of white victim homicides.  Finally, we find a strong path dependency and concentration of LWOP sentences in counties, where counties that have imposed LWOP sentences in the past are more likely to continue to do so.  These findings have implications for efforts to reconsider the most severe sentences in the U.S., and they suggest that prosecutorial discretion in seeking long sentences will be important subjects for future research and policy.

November 1, 2020 in Data on sentencing, Detailed sentencing data, Race, Class, and Gender, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Weekend reading for a bit of reform light amidst darker times

Turning the clocks back an hour makes November darker times, and watching the news these days is not often a source of light. But, even with so much election uncertainty, I am feeling reasonably certain that there will be continued momentum for at least some forms on criminal justice reform in the weeks and months ahead. These recent commentaries and stories contribute to my cautious optimism:

From Gabriel J. Chin and David Schlussel, "Federal Certificate Offers New Hope for Americans in ‘Internal Exile’"

From Holly Harris, "America needs the second step toward criminal justice reforms"

From NPR, "Jason Flom, The Music Executive With An Ear For Injustice"

From Arthur Rizer and Bruce Western, "'Public Safety': It Doesn’t Mean What You Think It Does"

From Vincent M. Southerland, "Good Governance Paper No. 19: The Criminal Legal System — Toward a Paradigm Shift"

November 1, 2020 in Recommended reading | Permalink | Comments (0)