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November 21, 2020

"What the data says (and doesn’t say) about crime in the United States"

The title of this post is the title of this effective short FactTank report about US crime rates authored byJohn Gramlich for the Pew Research Center. I recommend the full piece, which includes lost of links, and here are some exerpts:

As Trump’s presidency draws to a close, here is a look at what we know — and don’t know — about crime in the U.S., based on a Pew Research Center analysis of data from the federal government and other sources...

Property crime in the U.S. is much more common than violent crime.  In 2019, the FBI reported a total of 2,109.9 property crimes per 100,000 people, compared with 379.4 violent crimes per 100,000 people.  By far the most common form of property crime in 2019 was larceny/theft, followed by burglary and motor vehicle theft. Among violent crimes, aggravated assault was the most common offense, followed by robbery, rape, and murder/non-negligent manslaughter....

Both the FBI and BJS data show dramatic declines in U.S. violent and property crime rates since the early 1990s, when crime spiked across much of the nation....

Americans tend to believe crime is up, even when the data shows it is down.  In 20 of 24 Gallup surveys conducted since 1993, at least 60% of U.S. adults have said there is more crime nationally than there was the year before, despite the generally downward trend in national violent and property crime rates during most of that period....  This year, the gap between the share of Americans who say crime is up nationally and the share who say it is up locally (78% vs. 38%) is the widest Gallup has ever recorded....

There are big differences in violent and property crime rates from state to state and city to city.  In 2019, there were more than 800 violent crimes per 100,000 residents in Alaska and New Mexico, compared with fewer than 200 per 100,000 people in Maine and New Hampshire, according to the FBI.

Even in similarly sized cities within the same state, crime rates can vary widely. Oakland and Long Beach, California, had comparable populations in 2019 (434,036 vs. 467,974), but Oakland’s violent crime rate was more than double the rate in Long Beach. The FBI notes that various factors might influence an area’s crime rate, including its population density and economic conditions....

Most violent and property crimes in the U.S. are not reported to police, and most of the crimes that are reported are not solved.

Fewer than half of crimes in the U.S. are reported, and fewer than half of reported crimes are solved.  In its annual survey, BJS asks crime victims whether they reported their crime to police or not.  In 2019, only 40.9% of violent crimes and 32.5% of household property crimes were reported to authorities.  BJS notes that there are a variety of reasons why crime might not be reported, including fear of reprisal or “getting the offender in trouble,” a feeling that police “would not or could not do anything to help,” or a belief that the crime is “a personal issue or too trivial to report.”

Most of the crimes that are reported to police, meanwhile, are not solved, at least based on an FBI measure known as the clearance rate.  That’s the share of cases each year that are closed, or “cleared,” through the arrest, charging and referral of a suspect for prosecution, or due to “exceptional” circumstances such as the death of a suspect or a victim’s refusal to cooperate with a prosecution.  In 2019, police nationwide cleared 45.5% of violent crimes that were reported to them and 17.2% of the property crimes that came to their attention.

Both the percentage of crimes that are reported to police and the percentage that are solved have remained relatively stable for decades.... The most frequently solved violent crime tends to be homicide.  Police cleared around six-in-ten murders and non-negligent manslaughters (61.4%) last year.  The clearance rate was lower for aggravated assault (52.3%), rape (32.9%) and robbery (30.5%). When it comes to property crime, law enforcement agencies cleared 18.4% of larcenies/thefts, 14.1% of burglaries and 13.8% of motor vehicle thefts.

November 21, 2020 in National and State Crime Data | Permalink | Comments (0)

Terrific coverage at CCRC as "Marijuana expungement accelerates across the country"

Long-time readers here and at my other blog know I have long been interested in how marijuana reform can advance criminal justice reform.  My 2018 article, "Leveraging Marijuana Reform to Enhance Expungement Practices," called for much greater efforts to ensure marijuana reforms advance criminal record expungement efforts.  Happily, my 2018 article now already feels a bit dated because there has recently been a much greater emphasis on record relief in many marijuana reforms proposed and passed over the last couple of years. 

These recent realities have been effectively documented at the Collateral Consequences Resource Center.  CCRC Deputy Director David Schlussel first highlighted these developments in March 2020, via this posting and resource under the title "Legalizing marijuana and expunging records across the country."  That detailed posting began this way:  "As the legalization or decriminalization of marijuana has now reached a majority of the states, the expungement of criminal records has finally attained a prominent role in the marijuana reform agenda."  Wonderfully, this new follow-up posting provides the lastest detailed post-election accounting and gets started this way:

In November’s election, four more states legalized marijuana at the ballot box: Arizona, Montana, New Jersey, and South Dakota. The measures in Arizona and Montana included provisions for expunging the record of convictions for certain marijuana arrests or convictions.  During this year’s presidential campaign, President-elect Joseph R. Biden called for decriminalizing marijuana use and automatically expunging all marijuana use convictions.

As legalization continues to advance, the expungement of criminal records has finally attained a prominent role in marijuana reform, a development we documented in March.  Laws to facilitate marijuana expungement and other forms of record relief, such as sealing and set-aside, have now been enacted in 23 states and D.C.

Until very recently, most such laws extended to very minor offenses involving small amounts of marijuana and required individuals to file petitions in court to obtain relief.  Now, a growing number of states have authorized marijuana record relief that covers more offenses and either does away with petition requirements or streamlines procedures.

With these developments, we have again updated our chart providing a 50-state snapshot of:

(1) laws legalizing and decriminalizing marijuana;

(2) laws that specifically provide relief for past marijuana arrests and convictions, including but not limited to conduct that has been legalized or decriminalized; and

(3) pardon programs specific to marijuana offenses.

November 21, 2020 in Collateral consequences, Marijuana Legalization in the States, Pot Prohibition Issues, Reentry and community supervision | Permalink | Comments (0)

November 20, 2020

US Department of Justice sets three more execution dates

In this July post I wondered aloud "How many federal death row prisoners does Attorney General William Barr want to see executed in 2020?".  My main point in that post was that, after the completion of an initial three federal executions that month thanks to SCOTUS lifting lower court stays, it seemed that AG Barr would likely be able to have completed as many executions he decided to set.  For anyone who might have thought AG Barr would be content with ten executions in 2020 (eight already completed and two more planned), this new DOJ press reveals details he is not done.  This release is titled  "Executions Scheduled for Inmates Convicted of Brutal Murders Many Years Ago," and here are the essentials:

Attorney General William P. Barr today directed the Federal Bureau of Prisons to schedule the executions of three federal-death row inmates sentenced to death for staggeringly brutal murders, including the murder of a child and, with respect to two inmates, the murder of multiple victims.

  • Alfred Bourgeois abused, tortured, and beat to death his young daughter....  Bourgeois is scheduled to be executed by lethal injection on Dec. 11, 2020, at the Federal Correctional Complex, Terre Haute, Indiana.
  • Cory Johnson murdered seven people — Peyton Johnson, Louis Johnson, Bobby Long, Dorothy Armstrong, Anthony Carter, Linwood Chiles, and Curtis Thorne — in furtherance of his drug-trafficking activities....  Johnson is scheduled to be executed by lethal injection on Jan. 14, 2021, at the Federal Correctional Complex, Terre Haute, Indiana.
  • Dustin John Higgs kidnapped and murdered three women — Tamika Black, 19; Tanji Jackson, 21; and Mishann Chinn, 23....  Higgs is scheduled to be executed on Jan. 15, 2021.

November 20, 2020 in Death Penalty Reforms, Who Sentences | Permalink | Comments (4)

NACDL continuing great work spotlighting the ugly trial penalty now through compelling clemency petitions

This news release, titled "NACDL Trial Penalty Clemency Project Submits Second Set of Petitions to White House," reports effectively on work by the National Association of Criminal Defense Lawyers to shine light on, and seek needed remedies for, criminal defendants unfairly subject to the "trial penalty."  Here are some details on NACDL's latest efforts and prior work:

As of this week, NACDL’s Trial Penalty Clemency Project submitted four more federal clemency petitions to the Office of the Pardon Attorney and the White House, adding to the first set of six petitions submitted on October 2, 2020.  Of the four petitions, three concern individuals serving life or lengthy sentences for non-violent drug charges, and one concerns an individual serving over 35 years for a non-violent white-collar conviction.

As of late, increased attention to the criminal legal system has led to public outrage and calls to reform myriad facets of the American legal system.  The trial penalty, though, which refers to coercive prosecutorial practices that induce accused persons to waive fundamental rights under threat of a vastly increased sentence when fundamental rights are asserted, persists in undermining the American criminal legal system.  The most obvious examples of its impact are seen in those who assert their rights and receive a geometrically enhanced sentence.  Though reform is badly needed to end the trial penalty, the only immediate remedy for those individuals living this injustice is executive clemency.  NACDL’s Trial Penalty Clemency Project aims to assist those individuals by pairing applicants with volunteer attorneys who will assist them in preparing a clemency petition.

“The trial penalty makes a mockery of the Constitution’s Sixth Amendment right to trial and is a large and ever-growing cancer on the American criminal legal system,” said NACDL President Chris Adams.  “Every time a defendant opts to hold the government to its burden and go to trial, and receives a substantially more draconian sentence than was previously offered in a plea deal, the American legal system moves further away from justice.  NACDL’s Trial Penalty Clemency Project is a vital step in beginning to remedy this great injustice.”

Thus far, through affiliates, members, and the assistance of organizations in this space like the CAN-DO Foundation, the Last Prisoner Project, and Life For Pot, the Project has identified, reviewed, and assigned more than 20 cases with attorneys.  The attorneys are crafting petitions or supplements to existing petitions focusing on the impact of the trial penalty. In addition to filing the petitions with the Office of the Pardon Attorney, the Project brought the four cases described below, in addition to six previous cases, to the attention of the White House panel on clemency.  NACDL’s Trial Penalty Clemency Project is a component of NACDL’s Return to Freedom Project...

In 2018, NACDL released a groundbreaking report – The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It. Information and a PDF of NACDL’s 2018 Trial Penalty report, as well as video of the entire 90-minute launch event at the National Press Club in Washington, DC, and other trial penalty-related videos and materials are available at www.nacdl.org/trialpenaltyreport.

In 2019, The Federal Sentencing Reporter, published by University of California Press, released a double issue covering April and June 2019, edited by NACDL Executive Director Norman L. Reimer and NACDL President-Elect Martín Antonio Sabelli, entitled "The Tyranny of the Trial Penalty: The Consensus that Coercive Plea Practices Must End."

And in 2020, NACDL and FAMM released a documentary on the trial penalty, The Vanishing Trial. The trailer for that film is available here.

November 20, 2020 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

SCOTUS grants cert on two new Fourth Amendment cases

The US Supreme Court released this brief order list this afternoon granting certiorari in these two new cases with these questions presented:

19-1414 UNITED STATES V. COOLEY, JOSHUA J.

Cert petition question presented: "Whether the lower courts erred in suppressing evidence on the theory that a police officer of an Indian tribe lacked authority to temporarily detain and search respondent, a non-Indian, on a public right-of-way within a reservation based on a potential violation of state or federal law."

20-157 CANIGLIA, EDWARD A. V. STROM, ROBERT F., ET AL.

Cert petition question presented: "Whether the 'community caretaking' exception to the Fourth Amendment’s warrant requirement extends to the home."

November 20, 2020 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Is Sally Yates on track to be the next US Attorney General?

E204c9e0-0c25-11eb-a040-3d8028d863aa_1200_630The question in the title of this post is prompted by this new Reuters piece headlined "Biden's possible attorney general pick has moderate track record: progressive critics."  Here are excerpts:

President-elect Joe Biden has pledged to end the federal death penalty and eliminate mandatory minimum sentences, but some progressives say a potential pick for attorney general to carry out those reforms may not be the one to enact bold changes.

Sally Yates, 60, is a leading candidate for the job, according to sources.  The Atlanta native is perhaps best known for being fired from her position as acting attorney general by Republican President Donald Trump in his first month in office when she refused to enforce his first attempt at banning travelers from Muslim-majority nations.

Her history at the Department of Justice (DOJ) — where Democratic President Barack Obama appointed her as deputy attorney general in 2015, and before that as Atlanta’s top federal prosecutor for about five years — make the adviser to the Biden transition team a safe pick for a role subject to confirmation by the U.S. Senate, which may still be under Republican control next year.

Asked for comment, a Yates spokeswoman provided a lengthy list of opinion articles, testimony and other records she said demonstrate Yates’ strong commitment to criminal justice reform.  A Biden transition team spokesman did not respond to a request for comment.

Yates has expressed a measured approach on some criminal justice reforms, including previously voicing some support for the mandatory minimum sentences Biden wants to end — a position some progressives worry may not go far enough at a time of reckoning for the criminal justice system.  “She has done courageous things, but she is a career prosecutor,” said Rachel Barkow, a New York University law professor who previously served on the U.S. Sentencing Commission, which sets federal sentencing guidelines.  “The question will be, if Sally Yates comes in a second time, does she do a better job reading the moment or is she still coming with that DOJ insider lens?”...

Yates, during her 2015 confirmation hearing for deputy attorney general, called mandatory minimum sentences “an important tool for prosecutors,” which could nevertheless be used more judiciously due to the “fiscal reality” facing U.S. prisons.  While she was U.S. attorney in Atlanta, her office also sought the death penalty in some cases, and she testified on the Justice Department’s behalf to urge the U.S. Sentencing Commission to narrowly limit who could qualify to apply retroactively for a drug sentence reduction.

She was also involved in a controversy surrounding a 2014 clemency project, after Pardon Attorney Deborah Leff resigned in protest due to a backlog of 1,000 recommendations sitting in Yates’ office, 100 of which were urging clemency be granted.  In her January 2016 resignation letter, Leff said Yates had blocked her access to the White House, including on cases where Yates had reversed Leff’s clemency determinations.  Yates’ defenders say she was passionate about clemency, and personally reviewed every petition herself.

Some former colleagues say Yates deserves credit for important work that began during the Obama administration, much of which has since largely been undone during Trump’s term.  Yates spearheaded efforts to scale back the federal government’s use of private prisons, revamped the Bureau of Prisons’ education program to better prepare inmates for release and urged limits on solitary confinement.  She also persuaded Obama-era Attorney General Eric Holder to expand on his new policy scaling back the use of mandatory minimums and later publicly rebuked Trump’s first attorney general, Jeff Sessions, after he reversed these policies in 2017.

“Somebody like Sally is very attuned to what has been happening in the country after George Floyd’s murder,” said Vanita Gupta, who headed the DOJ’s civil rights division during Yates’ tenure and now heads the Leadership Conference on Civil & Human rights.  “She is very personally committed to civil rights and criminal justice reform, and I would fully expect that commitment would actually only deepen.”

I sense that Yates' long history as a federal prosecutor and her moderate approach to many reform issues leads some progressives to be rooting against her for the Attorney General position in a Biden Administration.  But I am inclined to view Yates' past criminal justice record somewhat like I view VP-elect Harris' record: I sense they have always been highly attuned to, and quite effective within, the felt legal and political needs of the time, which would suggest at least some ability to step up to the needs of our current criminal-justice-reform-focused times.

I am eager to note here that Sally Yates has recently been actively involved in the Council of Criminal Justice, serving as Co-Chair of the CCJ Board of Trustees and as a member of its federal priorities task force.  As highlighted in this post from May, I was especially impressed with the agenda for reform that the CCJ federal priorities task force produced.   This impressive report, titled "Next Steps: An Agenda for Federal Action on Safety and Justice," included 15 thoughtful recommendations, and I would be thrilled to have a new Attorney General committed to making these particular proposals a reality ASAP:

If the next Attorney General would be able to get even half of these priorities completed in the coming years, that would be quite a set of accomplishments.

November 20, 2020 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (2)

After SCOTUS lifts stay by 6-3 vote, federal government completes it eighth execution of 2020

As reported here via SCOTUSblog, the "Supreme Court on Thursday night allowed the government to proceed with the execution of Orlando Hall, who became the eighth federal inmate to be put to death since the Trump administration resumed federal executions in July."  Here is more:

Hall was sentenced to death for his role in the kidnapping, rape and murder of 16-year-old Lisa René in 1994.  In a one-sentence order, the Supreme Court lifted a district judge’s last-minute injunction that had temporarily blocked Hall’s execution.  Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented and would have left the injunction in place.

The court also rejected three separate emergency requests filed over the past two days in which Hall asked the justices to postpone his execution.  There were no noted dissents to the three brief orders rejecting those requests.  Shortly after the court’s orders, Hall was put to death at the federal prison in Terre Haute, Indiana.  He died at 11:47 p.m., according to local news reports.

Hall’s case reached the Supreme Court after a flurry of litigation in the lower courts over the execution, which the government had scheduled for Thursday at 6 p.m.  On Thursday afternoon, Judge Tanya Chutkan of the U.S. District Court for the District of Columbia issued an injunction blocking the execution.  The injunction was based on an earlier finding from Chutkan that the government’s method of execution violates the Federal Food, Drug, and Cosmetic Act because the government uses a lethal dose of sodium pentobarbital without obtaining a prescription for that drug.

The government immediately appealed Chutkan’s injunction.  The government argued that the prescription requirement in the FDCA does not apply to lethal-injection drugs.  It also argued that Hall was not entitled to an injunction based solely on the lack of a prescription.

The Supreme Court sided with the government, issuing an order just before 11 p.m. that lifted Chutkan’s injunction. The majority did not explain its reasoning, and none of the three justices who noted their dissent wrote an opinion explaining why.  At the same time, the court denied Hall’s three emergency applications, each of which presented separate legal arguments for a postponement of his execution....

Hall’s case was the first case involving a pending execution in which Justice Amy Coney Barrett participated since she joined the bench in October.  Barrett, a devout Catholic, co-wrote a 1998 article on the moral and legal dilemma that Catholic judges face in capital cases due to the church’s opposition to capital punishment.  That article raised questions in her confirmation hearings about possible recusals from such cases.  Barrett cited her full participation in capital cases as a law clerk for Justice Antonin Scalia and as a judge on the U.S. Court of Appeals for the 7th Circuit.

A few prior recent related posts:

November 20, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

November 19, 2020

"How Governors Can Use Categorical Clemency as a Corrective Tool: Lessons from the States"

The title of this post is the title of this interesting new report from the Urban Institue.  Here is its executive summary:

Governors in most states have executive clemency authority that allows them to change the terms of someone’s criminal justice system involvement, including by issuing pardons or by granting commutations to adjust the sentences of people in prison.  Though many clemency deliberations are independent case-by-case assessments, in some cases, governors can also extend clemency eligibility categorically to groups of people in prison to mitigate structural issues or accomplish larger reform goals.  In this report, we provide a high-level overview of state executive categorical clemency and offer examples of how state governors have used this strategy as a corrective tool to address problems in the criminal justice system.

November 19, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Further reflections on reform after "war on drugs" loses big in 2020 election

Rightly so, folks are still chatting about the meaning and impact of the election results ushering significant drug reforms.  Here are some of many pieces covering this interesting ground:

November 19, 2020 in Campaign 2020 and sentencing issues, Drug Offense Sentencing, Marijuana Legalization in the States | Permalink | Comments (0)

"'Some Mother's Child Has Gone Astray': Neuroscientific Approaches to a Therapeutic Jurisprudence Model of Juvenile Sentencing"

the title of this post is the title of this new paper authored by Michael Perlin and Alison Lynch now available via SSRN. Here is its abstract:

There is a robust body of evidence that tells us that the juvenile brain is not fully developed by age 18, and this evidence should and does raise important questions about the sentencing of juveniles in criminal cases.  This evidence, though, must be considered in the context of public opinion (about certain juvenile crimes that have been subject to saturation publicity) in the context of judges’ decisionmaking (where such judges do not want to be perceived as “soft on crime”).  The conflict between what we now know and what (false) “ordinary common sense” demands (in the way of enhanced punishments) flies squarely in the face of therapeutic jurisprudence precepts.  If the legal process is to seek to maximize psychological well-being and if it is to coincide with an “ethic of care,” then, it is necessary for those involved in the criminal justice system to speak publicly about this topic, and to “call out” those — be they elected politicians, editorial writers and commentators in the conservative media, or judges — who urge retributive and punitive sentences for adolescents and children.

In this paper, we will first give a brief overview about the current neuroscientific findings about juvenile brain development in the context of criminal behavior, and then discuss the current sentencing standards and regulations that are in place.  Then, we will discuss the impact of therapeutic jurisprudence as a framework for advocating for juvenile clients, in order to maximize and preserve their psychological well-being and to mitigate trauma.  Finally, we will offer recommendations for how experts can work with attorneys who are presenting sentencing arguments, in order to make the most comprehensive, scientifically persuasive case for leniency in juvenile sentencing.

November 19, 2020 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

November 18, 2020

"The Impact of Legalized Abortion on Crime over the Last Two Decades"

The title of this post is the title of this notable new work from John Donohue and Steven Levitt published in the American Law and Economics Review.  Here is the abstract:

Donohue and Levitt (2001) presented evidence that the legalization of abortion in the early 1970s played an important role in the crime drop of the 1990s.  That paper concluded with a strong out-of-sample prediction regarding the next two decades: “When a steady state is reached roughly twenty years from now, the impact of abortion will be roughly twice as great as the impact felt so far.  Our results suggest that all else equal, legalized abortion will account for persistent declines of 1% a year in crime over the next two decades.” 

Estimating parallel specifications to the original paper, but using the seventeen years of data generated after that paper was written, we find strong support for the prediction and the broad hypothesis, while illuminating some previously unrecognized patterns of crime and arrests.  We estimate that overall crime fell 17.5% from 1998 to 2014 due to legalized abortion — a decline of 1% per year.  From 1991 to 2014, the violent and property crime rates each fell by 50%.  Legalized abortion is estimated to have reduced violent crime by 47% and property crime by 33% over this period, and thus can explain most of the observed crime decline.

November 18, 2020 in National and State Crime Data | Permalink | Comments (0)

UC Law Review Online publishes symposium on "COVID-19 and Criminal Justice"

I was intribued to see this new University of Chicago Law Review Online symposium exploring the COVID pandemic's impact criminal justice.  Here are all the great-looking pieces:

Valena E. Beety & Brandon L. Garrett, COVID-19 and Criminal Justice (series introduction)

Sharon Dolovich, Mass Incarceration, Meet COVID-19

Maybell Romero, Law Enforcement as Disease Vector

Valena E. Beety, Pre-Trial Dismissal in the Interest of Justice: A Response to COVID-19 and Protest Arrests

Deniz Ariturk, William E. Crozier & Brandon L. Garrett, Virtual Criminal Courts

Pamela R. Metzger & Gregory J. Guggenmos, COVID-19 and the Ruralization of U.S. Criminal Court Systems

Barry Friedman & Robin Tholin, Policing the Pandemic

Jennifer D. Oliva, Policing Opioid Use Disorder in a Pandemic

November 18, 2020 in Impact of the coronavirus on criminal justice, Recommended reading | Permalink | Comments (0)

Pyrrhic victory for federal death row inmates in DC Circuit lethal injection litigation

As reported in this Courthouse Legal News piece, headlined "Federal Executions on Track but DC Circuit Flags Legal Errors," two federal defendants scheduled to be executed in coming days and weeks got some cold comfort from the DC Circuit today:

Though it declined to block two federal executions, the first just over 24 hours away, the D.C. Circuit was critical Wednesday that seven lethal injections have been carried out in the last few months without medical prescriptions.

This year alone, President Donald Trump’s Justice Department has carried out more federal executions than the combined total of his predecessors from the last 57 years. That record has sat undisturbed so far against a litany of challenges to the new lethal-injection protocol unveiled last year by Attorney General William Barr after a 17-year hiatus on the death penalty at the federal level.

Inmates suffered their latest defeat Wednesday morning when the D.C. Circuit declined to stay the executions of Orlando Hall set for Thursday and Brandon Bernard on Dec. 10.

In a rare rebuke from the appeals court as to the government’s death-penalty practices, however, the court revived the inmates’ claims that the government must obtain a prescription before using the drug pentobarbital to kill prisoners....

[In] a September ruling ... U.S. District Judge Tanya S. Chutkan found that the Trump administration violated the law by carrying out death sentences with unprescribed pentobarbital, but that Supreme Court decisions foreclosed her from blocking the upcoming executions.

The Supreme Court cleared the way for the first federal execution to proceed this year, overturning a temporary ban that Chutkan had ordered. In her latest ruling, Chutkan concluded that “most of the evidence” brought by attorneys to show flash pulmonary edema grips an inmate while they are still awake was already reviewed by the justices and did not reach the high bar to grant injunctive relief.

But the 2-1 appeals panel ruled Wednesday that Chutkan “should have ordered the 2019 protocol to be set aside to the extent that it permits the use of unprescribed pentobarbital in a manner that violates the FDCA.” Though the court revived the inmates’ Eighth Amendment challenge, it affirmed “denial of a permanent injunction to remedy the FDCA violation.”

Jonathan S. Meltzer, an attorney for Hall, said they would ask the Supreme Court this afternoon to issue a stay. The Justice Department did not respond to whether it plans to bring its own challenge to the Wednesday ruling. Hall has requested to go to the execution chamber at 6 p.m. for his scheduled death on Thursday. He was convicted for the kidnapping, rape and murder of a 16-year-old girl in 1994.

Bernard, set to be executed next month, was sentenced to death for the killing of two youth ministers at Food Hood. One of his five co-defendants, Christopher Vialva, was the most recent federal prisoner to die by lethal injection, executed by the Trump administration in September.

Lisa Montgomery, bringing a separate lawsuit backed by the ACLU, is scheduled to die on Dec. 8 — two days before Bernard — and would be the first woman executed by the U.S. government since 1953.

The full split panel ruling from the D.C. Circuit is available at this link.

November 18, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Seventh Circuit panel reverses below-guideline 16-year prison sentence as substantively unreasonable in terrorism case

Regular readers know I do not blog much about federal sentence reasonableness review these days because there is usually not that much worth blogging about.  Out of many thousands of appeals brought by federal defendants each year, typically only a few hundred are successful, and these are usually involve miscalculation of the guideline range.  The government rarely appeals, though it does often have a better success rate in the few dozen appeals it brings each year. 

In one particular (and rare) categories of cases, namely terrorism cases, the government has a particularly notable history of appellate success when arguing a sentence in unreasonably lenient (see posts linked below for some historical examples).  A helpful reader made sure I did not miss a new Seventh Circuit panel ruling handed down yesterday in this category: US v. Daoud, No. 19-2174 (7th Cir. Nov. 17, 2020) (available here).  Federal sentencing fans will want to review this 26-page opinion in detail, but the start and few passages from the body of the opinion provides the basics:

Adel Daoud pressed the button to detonate a bomb that would have killed hundreds of innocent people in the name of Islam.  Fortunately, the bomb was fake, and the FBI arrested him on the spot.  Two months later, while in pretrial custody, Daoud solicited the murder of the FBI agent who supplied the fake bomb.  Two and a half years later, while awaiting trial on the first two charges, Daoud tried to stab another inmate to death using makeshift weapons after the inmate drew a picture of the Prophet Muhammad.  Daoud eventually entered an Alford plea, and the cases were consolidated for sentencing.  The district court sentenced Daoud to a combined total of 16 years’ imprisonment for the crimes.  The government appeals that sentence on the ground that it was substantively unreasonable.  We agree.  We vacate the sentence and remand for resentencing....

[W]hile the district court paid lip service to the seriousness of the offenses, it undercut its own statements by unreasonably downplaying Daoud’s role in each offense.  District courts have broad discretion as to how to weigh the § 3553(a) factors, but a district court’s sentence must reflect a reasonable view of the facts and a reasonable weighing of the § 3553(a) factors....  Here, the district court sterilized Daoud’s offense conduct in ways that cannot be reconciled with the objective facts of these violent offenses.  That unreasonable view of the facts prevented the district court from properly weighing the seriousness of the offenses when selecting its sentence....

In the district court’s telling, Daoud’s age, mental health, and general awkwardness and impressionability converged to render him uniquely susceptible to criminal influence. A sentencing court is well within its rights to consider a defendant’s mental limitations in mitigation.... But that factor only goes so far in this case.  Daoud committed the attempted bombing around his 19th birthday.  He was 19 when he solicited the FBI agent’s murder and 21 when he tried to stab a fellow inmate to death.  In other words, he was college aged at all relevant times.  He may have been immature, but, as the court recognized, he was old enough to know what he was doing.

Prior posts on similar reasonableness ruling:

November 18, 2020 in Booker in the Circuits, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

County in Washington State approves new diversion program focused on community restoration

This local article, headlined "King County Council OKs plan to let community groups decide some punishment -- not judges," reports on a notable new diversion program just approved in Seattle's county.  Here are the interesting details:

The King County Council on Tuesday voted Tuesday to approve funding for a groundbreaking criminal justice diversion program that will let community groups decide what punishment -- if any -- should be handed out for a select group of accused felons.

The county council voted 9-0 to approve a program known as Community Restorative Pathways, adding funding for it in the county's $12.59 million biennium budget. Instead of facing a judge, juveniles and adults accused of a first-time, non-violent felony offense will be offered an alternative where a non-profit community panel will decide how the accused person can be held accountable for their crime.

Suspects accused of violent crimes and crimes against persons would not be eligible for the diversion program, and if the offender fails to follow through with the community groups recommended punishment or accountability, the original criminal charges could still be pursued in court.

“We can send that person instead (of jail) to a community accountability group, who will define what they think accountability means,” said King County Prosecutor Dan Satterberg. It’s a new concept for King County Superior Courts and the King County Prosecutor’s Office, which has 7,000 cases waiting for disposition, double the amount in a normal year. Accountability would not include jail or even a conviction, said Satterberg, who declined to define what accountability means.

“That’s up to the community groups,” he said, adding that it would target 800 juveniles and 1,000 adults to start. “These are low-level felonies, property offenses, no domestic violence, no sexual assault cases (and) decisions you would make if you were in my shoes.”

The program is slated to begin in mid-2021 and be implemented no later than the start of 2022. The budget for the program is set at $6.2 million, money that would have gone to the King County Sheriff’s Office.

King County Executive Dow Constantine proposed the idea along with Satterberg. Constantine has pledged to phase out the King County Jail after the pandemic is over, what he described as a cost-cutting move. “Locking people up is very costly and it’s not affirmative for people's lives,” King County Councilmember and Budget Chairperson Jeanne Kohl-Welles told KOMO News just before the budget vote. “But we also have to make sure to protect the public, so this is hard, it’s not going to be easy."

November 18, 2020 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

November 17, 2020

"The Rule of Judicial Political Affiliation in Criminal Sentencing Outcomes"

The title of this post is the title of this new paper now available via SSRN authred by Wendy Calaway, Jennifer Kinsley and Taylor Wadian.  Here is its abstract:

Legislative efforts to bring consistency to criminal sentencing outcomes has been much discussed in academic literature and Congressional hearings alike.  Despite these efforts disparate sentencing outcomes persist.  Researchers have studied many variables seeking to understand these disparities but have been unable to form a consensus around the cause. Perhaps because of the lack of a firm understanding of the issue among researchers, legislative intervention at both the state and federal level has largely failed to address the issue of judicial characteristics that may drive sentencing disparities.  As a result, absent from the conversation on criminal sentencing reform is empirical and anecdotal evidence about how judges make determinations within the range of outcomes specified by the legislature.  New data on federal sentencing outcomes collected by Harvard researchers, however, finds a direct connection between the political party of the President who appointed the federal judge and the length of a defendant’s sentence.  As the Harvard study reports, federal judges appointed by Republican presidents sentence defendants on average to three more months in prison than federal judges appointed by Democratic presidents.  Republican-appointed judges in the federal system also sentence black defendants more harshly than Democratic-appointed judges.

As will be discussed in this Article, the central premise of the Harvard political sentencing study — that judicial political affiliation influences sentencing outcomes, even those that are highly guided by legislative criteria — also holds true on the state level with respect to elected, rather than appointed, judges.  As we report, empirical evidence from the state of Ohio demonstrates that elected Republican judges sentence defendants to lengthier terms of incarceration than elected Democratic judges by a statistically significant margin.  This evidence suggests that, rather than being entirely guided by specified statutory criteria, judges bring preexisting sentencing ideologies to the bench and make decisions with a range of sentencing outcomes based at least in part on their individual philosophies and beliefs.  Based on these findings, we argue that in order to address the issue of sentencing disparities, reform efforts should take action to specifically address the behavior and motivation of individual judges.

November 17, 2020 in Data on sentencing, Detailed sentencing data, Who Sentences | Permalink | Comments (0)

So much great data and analysis from the Prison Policy Initiative

I have been behind on reading and blogging on various fronts, particularly with respect to a number of notable new items from the Prison Policy Initiative.  I will "catch up" poorly through this set of links to recent PPI works:

November 17, 2020 in Criminal justice in the Biden Administration, Data on sentencing | Permalink | Comments (0)

Notable new Gallup poll numbers on perceptions of the US criminal justice system

Bnlwz2mfyu2twk35wjqfzwThis new Gallup release, headlined "Fewer Americans Call for Tougher Criminal Justice System," reports on new polling number concerning pubic views on the US criminal justice system.  Here are the details:

Americans' belief that the U.S. criminal justice system is "not tough enough" on crime is now half of what it was in Gallup's initial reading of 83% in 1992.  The latest measure, at 41%, is the lowest on record and down slightly from the previous reading in 2016 -- although it remains the view of the plurality.  At the same time, there has been a seven-percentage-point uptick among those who say the system is "too tough" (21%) and no change among those who think it is "about right" (35%).

Americans' perceptions of whether the criminal justice system in the U.S. is too tough, not tough enough or about right in its handling of crime since 1992.  The percentage saying it is not tough enough has fallen from 83% in 1992 to 41% now.  At the same time, the percentage saying it is about right has risen from 12% in 1992 to the current 35%, and those who think it is too tough has increased from 2% in 1992 to 21% now.

Across the five times Gallup has asked this question since 1992, when public perceptions of national and local crime rates were at or near their highest points, there has been a steady decrease in the percentage saying the system is not tough enough and increases in the percentages saying it is too tough or about right.  These changes coincide with declines in crime rates in the U.S.  The latest reading is from Gallup's annual Crime poll, conducted Sept. 30-Oct. 15, 2020.

Americans' faith in the U.S. criminal justice system remains low according to Gallup's 2020 Confidence in Institutions poll conducted earlier this year, and confidence in one element of that system -- the police -- fell to a record-low level in the same poll.  This decline in confidence in the police followed several high-profile deaths of Black Americans at the hands of police officers, including George Floyd, Breonna Taylor and Rayshard Brooks.

Views of the criminal justice system vary by party identification and racial background.  A 58% majority of Republicans and Republican-leaning independents say the criminal justice system is not tough enough.  However, this view is shared by less than half as many Democrats and Democratic-leaning independents (25%), while 37% think the system is about right and 35% too tough.

More White Americans than non-White Americans say the justice system is not tough enough on crime (45% vs. 31%, respectively).  The plurality of non-White adults, 40%, think it is about right, while 26% believe it is too tough.

Americans across these four party and racial subgroups have become significantly less likely to say the criminal justice system is not tough enough, but it has declined the most among Democrats, falling from 62% in 2000 to 25% today.  Over the same period, Democrats' view that the system is too tough has grown from 6% to 35%.

Given two options for approaches to lowering the U.S. crime rate, more Americans prefer putting money and effort into addressing social and economic problems such as drug addiction, homelessness and mental health (63%) rather than putting money and effort into strengthening law enforcement (34%).

November 17, 2020 in Elections and sentencing issues in political debates, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

November 16, 2020

"Presidential Pardons and the Problem of Impunity"

The title of this post is the title of this quite timely article authored by Frank Bowman III now available via SSRN. Here is its abstract:

This Article considers the reach of the President’s pardon power and its potential employment as one means of creating legal impunity for a President and his personal and political associates.  It addresses, in particular, the possibility that a President might issue self-interested pardons to himself, family members, or political or business associates.  The Article reviews the constitutional origins of the federal pardon power, and the law and practice of its use since the Founding era, and concludes:

A President cannot constitutionally pardon himself, though the point is untested.  In theory, a President could resign, or under the Twenty-fifth Amendment withdraw temporarily from the office, transform the Vice President into the President or Acting President, and secure a pardon from the his former subordinate.  But that seems improbable.

A President can pardon anyone but himself (both humans and corporations), and those pardons, once issued, are almost certainly unchallengeable and irrevocable.  A presidential pardon can cover any (and perhaps all) federal crimes the beneficiary has ever committed, so long as such crimes occurred and were completed prior to the issuance of the pardon. A president cannot pardon crimes that have not yet been committed.  Consequently, a pardon issued corruptly might itself constitute a crime that could not be pardoned.

The pardon power does not extend to state crimes or to any civil or administrative action brought by federal or state authorities.  A presidential pardon cannot block congressional investigations.  Finally, because a pardon effectively erases the Fifth Amendment privilege as to offenses covered by the pardon, it might make it easier for criminal and civil investigative authorities and Congress to compel testimony from the person pardoned.

Therefore, presidential pardons could inconvenience, but could not prevent, thorough investigations of the private and public actions of a former President or his associates.  The Article concludes by recommending a thorough, but judicious, use of available investigative avenues to inquire into well-founded allegations of wrongful behavior by former presidents and their personal and political associates.

November 16, 2020 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Justice Sotomayor dissents at length from SCOTUS refusal to reinstate order for Texas prison to implement COVID protections

As reported in this SCOTUSblog post, the "Supreme Court on Monday afternoon rejected a request from two inmates at high risk for complications from COVID-19 to reinstate an order by a federal district court that would require Texas prison officials to take basic safety precautions to combat the virus."  Justice Sotomayor issued a lengthy dissent from the ruling, which was joined by Justice Kagan, and here are parts from the start and end of this 11-page opinion:

I write again about the Wallace Pack Unit (Pack Unit), a geriatric prison in southeast Texas that has been ravaged by COVID–19.  See Valentine v. Collier, 590 U.S. ___ (2020) (statement respecting denial of application to vacate stay).  The Pack Unit is a “‘tinderbox’” for COVID–19, not only because it is a dormitory-style facility, “making social distancing in the living quarters impossible,” but also because the vast majority of its inmates are at least 65 years old, and many suffer from chronic health conditions and disabilities....

In July, the District Court held a weeks-long trial that revealed rampant failures by the prison to protect its inmates from COVID–19.  In September, the District Court entered a permanent injunction requiring prison officials to implement basic safety procedures.  The Fifth Circuit, however, stayed the injunction pending appeal.  Now, two inmates, Laddy Valentine and Richard King, ask this Court to vacate the stay.  Because they have met their burden to justify such relief, I would grant the application....

The people incarcerated in the Pack Unit are some of our most vulnerable citizens.  They face severe risks of serious illness and death from COVID–19, but are unable to take even the most basic precautions against the virus on their own. If the prison fails to enforce social distancing and mask wearing, perform regular testing, and take other essential steps, the inmates can do nothing but wait for the virus to take its toll.  Twenty lives have been lost already. I fear the stay will lead to further, needless suffering.

November 16, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Hoping Garden State can germinate a bounty of new criminal justice data

This new Law360 article, headlined "NJ Criminal Justice Data Law Could Spur Reforms Elsewhere," reports on a great new data development in the great state of New Jersey.  Here are excerpts from the piece:

A new law pulling back the curtain on New Jersey's criminal justice system by requiring its attorney general to compile and analyze a wide range of information could serve as a model for the rest of the nation and fuel future reform efforts in the Garden State, experts say.

The measure, which was signed into law on Nov. 9 by Gov. Phil Murphy, calls on Attorney General Gurbir S. Grewal to set up a program to "collect, record and analyze data" on defendants 18 or older, including their race, ethnicity, gender and age, and what happens to their cases, including systematic plea negotiation information that typically goes unrecorded.

Following other initiatives in the state in recent years including sweeping bail reforms, the data collection and analysis will provide a closer look at potential problems in the system and better equip lawmakers to tackle those issues.  For example, the data could provide insight on racial disparities in prosecutions and mass incarceration, experts say.

"Until we have a full picture of what's happening, there's no way to offer a solution that will be comprehensive," said Jesse Kelley, government affairs manager for the criminal justice and civil liberties policy team at the R Street Institute, a libertarian think tank....

Mikaela Rabinowitz, director of national engagement and field operations at criminal justice research organization Measures for Justice, said the law could be a national model in terms of the breadth of the data collection and the recognition of "the need to centralize these disparate sources" of information.

In a country where criminal justice data is spread across various agencies and "you can't actually assess what is going on systemwide," the law is an acknowledgment that "in order to actually understand how the criminal process is working, we need to take data from these disparate agencies and disparate sources and put it all in one place," Rabinowitz said....

The data will include "warrants, arrests, charges, filing of criminal complaints, and indictments," "dismissed or downgraded charges," and "plea agreement negotiations, including data concerning plea offers extended and accepted or rejected by the defendant, plea agreements entered or rejected by the court, and whether the plea agreements involved probation or incarceration," according to the bill.

For cases involving victims, the data will include "the race, ethnicity, gender and age" of the defendant and the victims, the bill says.  "This is potentially groundbreaking legislation, and it calls for data collection and reporting that currently exists nowhere in the United States," Duke University law professor Brandon Garrett told Law360.

Garrett, who leads the university's Wilson Center for Science and Justice, pointed out that states rarely "collect any data on victims, and yet in study after study, we have found that in serious cases, the race of the victim in particular matters a great deal to sentencing."

Data on plea talks also is "typically not recorded by anyone, including prosecutors," Garrett said.  Collecting "such systematic data would be enormously impactful" and "open the black box on charging in criminal cases," he said.  "One hope could be that not only will the public better understand outcomes in the system, but judges, public defenders and prosecutors will themselves better understand their work," he said.

November 16, 2020 in Data on sentencing | Permalink | Comments (0)

Federal judge orders Missouri to improve its parole process

As reported in this local piece, headlined "Judge orders revamp of Missouri’s ‘unconstitutional’ parole system," a notable new federal district court ruling last week "spurred by a class-action lawsuit in 2017 by state prison inmates, requires the state’s Department of Corrections to implement over two dozen reforms related to the agency’s unconstitutional handling of parole revocation proceedings."  Here is more:

The lawsuit alleged that the current practices resulted in the unlawful reincarceration of thousands of people each year. “These reforms should result in fewer people thrown back behind bars, and slow the churn at prison reception centers,” said Amy Breihan, co-director of the MacArthur Justice Center.

The 55-page order from U.S. District Judge Stephen R. Bough found the Department of Corrections has been intentionally failing to provide state-funded counsel to eligible parolees. The court ordered the department to ensure all eligible parolees have an attorney appointed for any proceeding to move forward.  The judge also ordered several other changes. While the agency previously would not disclose evidence against an individual until the hearing, officials are now required to provide evidence at least five days prior to a revocation hearing.

The court also wants the state to move faster on revocation hearings that have previously resulted in parolees waiting hundreds of days in detention. “Having reviewed the evidence presented at the hearing and in the parties’ briefing on the matter, the court finds constitutional deficiencies in the current parole revocation process remain and issues this order to remedy such due process violations,” Bough wrote.

November 16, 2020 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

November 15, 2020

Granting of compassionate release reduces ridiculous federal sentence by hundreds of years

This CNN piece, headlined "Grandfather serving 505-year sentence ordered to be released 'without delay'," reports on a recent grant of compasionate release to reduce a sentence that would seem like a joke if it had not been real.  Here are some of the details:

In a stunning reprieve for a man sentenced to more than five centuries behind bars for a nonviolent offense, a judge in Los Angeles on Thursday summarily slashed his sentence to time served and ordered his immediate release.

Juan Carlos Seresi, a convicted money launderer whose projected release date from the federal Bureau of Prisons had been July 8, 2419, was suddenly ordered to be freed "without delay" by U.S. District Court Judge Stephen V. Wilson.  Once out, Seresi will be subject to a three-year term of supervised release, according to Wilson's order.

"It's a miracle," Seresi said after hearing the news from his daughter, Patti Mawer, she told CNN.  Mawer, 46, said her father has been behind bars since she was a teenager, but has remained an integral part of her family's life.  "After all this praying and all this hoping, he can't believe it," Mawer added.

Seresi, 73, was one of four defendants sentenced to 505 years behind bars in 1991 for laundering cocaine cartel cash who were featured in a CNN report published in August.  The article noted how the sentences were considered harsh even back then and represent the sort of draconian punishment that has since been widely condemned amid a national conversation around justice reform.

When the case was before Wilson in August, he denied a request by prosecutors to overturn the men's convictions "in the interests of justice" due to special treatment given to a government witness by FBI agents that was not disclosed to the defense.  Wilson conducted a months-long review into the matter and concluded that the men's convictions were sufficiently supported by evidence and testimony unrelated to that particular witness.  All four defendants filed an appeal with the 9th Circuit Court of Appeals, which is pending.

But Seresi's attorneys also filed a motion seeking his release on compassionate grounds, due in part to his advanced age and a diagnosis of high blood pressure making him susceptible to serious complications from Covid-19.  Prosecutors in the US Attorney's Office in Los Angeles did not oppose the motion.

While Wilson found that those factors alone did not entitle Seresi to early release, he noted other factors that — taken together — amounted to "extraordinary and compelling reasons" for granting his freedom.  Seresi was convicted of a nonviolent offense, had already served more than 30 years behind bars, earned three associate degrees while incarcerated and had a near spotless disciplinary record, the judge noted.

November 15, 2020 in FIRST STEP Act and its implementation, Sentences Reconsidered | Permalink | Comments (5)

Members of Congress urge Attorney General Barr "to suspend all federal executions"

There have already been seven federal executions in 2020, and there are three more federal executions scheduled in the next month: as this BOP page details, one execution is scheduled for this coming Thursday, and two more are scheduled for the second week of December.  But a few members of Congress, as detalled in this press release, have written to Attorney General William Barr to urge him "to suspend all federal executions so the incoming Biden-Harris Administration can evaluate and determine the future use of the death penalty by the federal government."

The full short letter is available at this link, and here are its concluding sentiments:

President-Elect Biden’s plan for strengthening America’s commitment to justice includes the elimination of the federal death penalty and Vice-President-Elect Harris is an original cosponsor of legislation we have introduced to eliminate the federal death penalty. A record number of Americans voted in favor of President-Elect Biden and Vice-President Elect Harris and they deserve an opportunity to implement their policy agenda without the Trump Administration rushing to take preemptive and irreversible steps.

While you will remain in office for a few more weeks, going forward with executions in the weeks before the new administration takes office would be a grave injustice. 

November 15, 2020 in Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

"The Curriculum of the Carceral State"

The title of this post is the title of this recently published essay by Alice Ristroph.  Here is its abstract:

This Essay scrutinizes the canons of substantive criminal law, with a particular focus on the curricular canon.  By curricular canon, I mean the conceptual model used to teach the subject of criminal law, including the cases, narratives, and ideas that are presented to students.  Since the middle of the twentieth century, American law schools have offered (and often required) a course in criminal law in which homicide is the paradigm crime and legality is a core organizing principle.  The curricular canon depicts criminal law as a necessary and race-neutral response to grave injuries, and it also depicts criminal law as capable of self-restraint through various internal limiting principles. 

This model does not correspond closely to actual legal practices, and it never did; it was designed to model what criminal law could become.  Though this curricular model was developed by men who wanted to improve and constrain the criminal law, instead it probably contributed to the vast expansion of criminal interventions in the second half of the twentieth century.  The Essay reveals the pro-carceral implications of the prevailing canon, and it offers the outline of a different model that could alter American attitudes toward criminal law.  

I highly recommend everything penned by Alice Ristroph, and I am especially excited to see her turn her attention to the gaps between "our curricular model and our present criminal law reality" and to how "American law schools, through the required course on substantive criminal law, have contributed affirmatively to the collection of phenomena commonly labeled mass incarceration."  And reading this great piece reminded me of this very short commentary I wrote in the very first issue of the Ohio State Journal of Criminal Law way back in 2003 to flag my concerns that "failing to discuss the modem dynamics of criminal law doctrine and practice ... [results in] a substantive criminal law course that is often archaic, incomplete and perhaps unjustifiable."  My point back then was that modern criminal justice developments, particularly the drug war, plea realities and sentencing reforms, made the Model Penal Code outdated as a fundamental teaching text.  As I put it then:

The original MPC retains important historical value as a compendium of post-war scholarly thinking about criminal law, and its impact as a practical reform project remains profound. However, because the fundamental issues and concerns of criminal law doctrine and practice have shifted so dramatically in the last 40 years, the original MPC's continued use as a criminal law textbook operates, in my view, as a considerable disservice to criminal law academics and students, and ultimately to the entire field of criminal justice....

[T]he front-line realities of modem criminal law doctrine and practice have become quite grim and messy, and yet study of the original MPC can suggest that criminal law doctrine and practice is quite enlightened and orderly.  The MPC — and our teaching of it — trumpets the foundational concepts of actus reus and mens rea; yet the act requirement is often functionally eclipsed in a world in which conspiracy and possession offenses are staples, and the import of mental states is often functionally eclipsed in a world in which most sentencing factors are strict liability elements.  The MPC — or perhaps more particularly our teaching of it — suggests that homicides and other serious offenses are the central concern of the criminal justice system; yet modem criminal dockets are clogged with 60 times more felony drug and property cases than homicide cases. The MPC — and especially our usual methods for teaching it — suggests that many cases raise legal and factual claims and defenses that are resolved at trials where burdens of proof and precise offense elements are scrupulously considered; yet such matters very rarely occupy real criminal courts as judges spend the bulk of their time processing and sentencing the 19 out of every 20 defendants whose convictions are secured through guilty pleas.  And of course the MPC could not discuss — and I fear our teaching still fails to discuss — the enormous economic and personal costs and consequences of making mass incarceration a defining element of the modem American criminal justice system.

Gosh, I sure wish these musings of mine from this 2003 article felt more dated now, but Alice Ristroph's article effectively highlights how these problems have only gotten worse over time.

November 15, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)