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December 12, 2020

Highlighting arguments that incarcerated persons should be high on the list for the COVID vaccines

I have been pleased to see recently more than a few commentaries making the case for making sure persons in prisons and jails have access to the coming COVID vaccines.  Here is a round up of some of these recent pieces:

From America: The Jesuit Review, "A Covid-19 vaccine has finally arrived. Prisoners must be prioritized."

From The Appeal, "People in Prisons and Jails Should get COVID-19 Vaccines as Early as Possible"

From the News-Gazette, "Vaccinating inmates — early — would be small step on long path toward justice reform"

From the Orange County Register, "An argument for the early immunization of prisoners"

From USA Today, "Here's why inmates should get vaccinated against COVID-19 before the rest of us"

December 12, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

"Institutionalizing inequality in the courts: Decomposing racial and ethnic disparities in detention, conviction, and sentencing"

The title of this post is the title of this recent article published in the latest issue of Criminology authored by Marisa Omori and Nick Petersen.  Here is its abstract:

A significant body of literature has examined racial and ethnic inequalities in sentencing, focusing on how individual court actors make decisions, but fewer scholars have examined whether disparities are institutionalized through legal case factors.  After finding racial and ethnic inequalities in pretrial detention, conviction, and incarceration based on 4 years of felony court data (N = 83,924) from Miami‐Dade County, we estimate nonlinear decomposition models to examine how much of the inequalities are explained by differences in criminal history, charging, and for conviction and incarceration, pretrial detention.

Results suggest that inequality is greatest between White non‐Latinos and Black Latinos, followed by White non‐Latinos and Black non‐Latinos, ranging from 4 to more than 8 percentage points difference in the probability of pretrial detention, 7–13 points difference in conviction, 5–6 points in prison, and 4–10 points difference in jail.  We find few differences between White non‐Latinos and White Latinos.  Between half and three‐quarters of the inequality in pretrial detention, conviction, and prison sentences between White non‐Latino and Black people is explained through legal case factors.  Our findings indicate that inequality is, in part, institutionalized through legal case factors, suggesting these factors are not “race neutral” but instead racialized and contribute to inequalities in court outcomes.

December 12, 2020 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (0)

December 11, 2020

US completes is second execution in as many days with lethal injection of Alfred Bourgeois

As reported in this AP piece, the "Trump administration continued its unprecedented series of post-election federal executions Friday by putting to death a Louisiana truck driver who severely abused his 2-year-old daughter for weeks in 2002, then killed her by slamming her head against a truck’s windows and dashboard."  Here is more:

Alfred Bourgeois, 56, was pronounced dead at 8:21 p.m. Eastern time after receiving a lethal injection at the federal prison in Terre Haute, Indiana.

His lawyers argued Bourgeois had an IQ that put him in the intellectually disabled category, saying that should have made him ineligible for the death penalty under federal law.  Victor J. Abreu said it was “shameful” to execute his client “without fair consideration of his intellectual disability.”

In his last words, Bourgeois offered no apology and instead struck a deeply defiant tone, insisting that he neither killed nor sexually abused his baby girl.  “I ask God to forgive all those who plotted and schemed against me, and planted false evidence.”  And he added: “I did not commit this crime.”

Bourgeois was the 10th federal death-row inmate put to death since federal executions resumed under President Donald Trump in July after a 17-year hiatus.  He was the second federal prisoner executed this week, with three more executions planned in January....  The last time the number of civilians executed federally was in the double digits in a year was under President Grover Cleveland, with 14 in 1896.

The series of executions under Trump since Election Day, the first in late November, is also the first time in more than 130 years that federal executions have occurred during a lame-duck period.  Cleveland also was the last president to do that.  Bourgeois’ lawyers contended that the apparent hurry by Trump, a Republican, to get executions in before the Jan. 20 inauguration of death-penalty foe Joe Biden, a Democrat, deprived their client his rights to exhaust his legal options....

Several appeals courts have concluded that neither evidence nor criminal law on intellectual disability supported the claims by Bourgeois’ legal team....

In Bourgeois' case, the crimes stand out as particularly brutal because they involved his young daughter....  Bourgeois whipped the girl with an electrical cord, burned her feet with a cigarette lighter and hit her in the head with a plastic baseball bat so hard that her head swelled — then refused to seek medical treatment for her, court documents say. Prosecutors also said he sexually abused her....

It was during a trucking run to Corpus Christi, Texas, that he ended up killing the toddler.  Again angered by her toilet training, he grabbed her inside the truck by her shoulders and slammed her head on the windows and dashboard four times, court filings say.  When the girl lost consciousness, Bourgeois’ wife pleaded for him to get help and he told her to tell first responders that she was hurt falling from the truck. She died the next day in a hospital of brain injuries.

In a statement after the execution, other members of the young girl’s family said she “lost her life brutally to a monster who lived for 18 years after the crime.” “Now we can start the process of healing,” the statement, distributed by the Bureau of Prisons, said.  “It should not have taken 18 years for us to receive justice for our angel.  She will forever be loved and missed.”

After his 2004 conviction, a judge rejected claims stemming from his alleged intellectual disability, noting he did not receive a diagnosis until after he was sentenced to death. “Up to that point, Bourgeois had lived a life which, in broad outlines, did not manifest gross intellectual deficiencies,” the court said.  Attorneys argued that finding was based on misunderstandings about such disabilities.  They said Bourgeois had tests that demonstrated his IQ was around 70, well below average, and that his childhood history buttressed their claims.

The Supreme Court denied of Bourgeois's application for a stay of execution and cert petition by a 7-2 vote and it is available at this link.  Justice Sotomayor wrote a dissent, joined by Justice Kagan, that starts this way:

The Federal Death Penalty Act (FDPA) provides that “a sentence of death shall not be carried out upon a person who is mentally retarded.” 18 U.S.C. §3596(c).  The Court today allows the execution of Alfred Bourgeois to proceed even though Bourgeois, who has an IQ between 70 and 75, argues that he is intellectually disabled under current clinical standards.  I would grant his petition to address whether the FDPA prohibits his execution.

December 11, 2020 in Criminal justice in the Trump Administration, Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (1)

"The Administrative Law of the Eighth (and Sixth) Amendment"

The title of this post is the title of this book chapter authored by Richard Bierschbach and recently posted to SSRN.  Here is its abstract:

On the surface, few similarities exist between modern administrative law and the modern constitutional law of sentencing.  Administrative law is preoccupied with structural constitutional law, statutory interpretation, and regulatory policy.  Constitutional sentencing law is overwhelmingly concerned with individual constitutional rights, blame, and punishment.  Scholars thus rarely draw connections between the two.

This Chapter — written for a forthcoming volume on “The Eighth Amendment and Its Future in a New Age of Punishment” — does just that.  Administrative law and the constitutional law of sentencing can be seen as sharing a fundamental concern about the structure of decision-making: how to ensure that difficult, value-laden judgments best reflect and filter the viewpoints and concerns of those they affect.  Just as the institutional and procedural structure of administrative law evolved in large part to address issues of voice and perspective in the regulatory context, we might understand the arc of constitutional sentencing law over the last half-decade as slowly moving in a parallel direction.

December 11, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Rounding up some headlines in incarceration nation

An array of press stories about prison issues and conditions, none encouraging, caught my eye this morning. Here is a round up organized by state:

Alabama: "U.S. Department of Justice sues Alabama over unsafe prison conditions"

Arizona: "Advocates concerned over COVID-19 outbreaks, no running water inside Arizona prisons"

California: "Disabled California Prisoners Say Mistreatment Persists Despite Court Orders"

Connecticut: "Judge says Danbury prison is slow to enforce COVID-19 agreement and orders immediate release of 17 inmates"

Hawaii: "90% of Waiawa’s inmate population has tested positive for COVID in recent months"

New York: "‘A lack of compassion’: Lawyers say New York prisons are dragging their feet releasing eligible inmates amid coronavirus concerns"

Pennsylvania: "More than half the inmates at Pennsylvania federal prison have covid"

Washington: "Nearly 50-percent of Airway Heights Corrections Center inmates infected with COVID-19"

December 11, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

December 10, 2020

US completes execution of Brendan Bernard despite high-profile appeals for relief

As reported in this AP piece, the "Trump administration on Thursday carried out its ninth federal execution of the year and the first during a presidential lame-duck period in 130 years, putting to death a Texas street-gang member for his role in the slayings of a religious couple from Iowa more than two decades ago."  Here is more:

Four more federal executions, including one Friday, are planned in the weeks before President-elect Joe Biden’s inauguration.

The case of Brendan Bernard, who received a lethal injection of phenobarbital inside a death chamber at a U.S. prison in Terre Haute, Indiana, was a rare execution of a person who was in his teens when his crime was committed.

Several high-profile figures, including reality TV star Kim Kardashian West, had appealed to President Donald Trump to commute Bernard’s sentence to life in prison.

With witnesses looking on from behind a glass barrier, the 40-year-old Bernard was pronounced dead at 9:27 p.m. Eastern time.

Bernard was 18 when he and four other teenagers abducted and robbed Todd and Stacie Bagley on their way from a Sunday service in Killeen, Texas. Federal executions were resumed by Trump in July after a 17-year hiatus despite coronavirus outbreak in U.S. prisons....

[J]ust before the execution was scheduled, Bernard’s lawyers filed papers with the Supreme Court seeking to halt the execution. The legal team expanded to include two very high-profile attorneys: Alan Dershowitz, the retired Harvard law professor who was part of Donald Trump’s impeachment defense team and whose clients have included O.J. Simpson, Claus von Bulow and Mike Tyson; and Ken Starr, who also defended Trump during the impeachment and is most famous as an independent counsel who led the investigation into Bill Clinton.

But about two and a half hours after the execution was scheduled, the Supreme Court denied the request, clearing the way for the execution to proceed.

The Supreme Court's denial of Benard's application for a stay of execution and cert petition is available at this link. The vote was 6-3, with Justice Sotomayor writing the only full dissent. That dissent starts this way:

Today, the Court allows the Federal Government to execute Brandon Bernard, despite Bernard’s troubling allegations that the Government secured his death sentence by withholding exculpatory evidence and knowingly eliciting false testimony against him.  Bernard has never had the opportunity to test the merits of those claims in court.  Now he never will. I would grant Bernard’s petition for a writ of certiorari and application for a stay to ensure his claims are given proper consideration before he is put to death.

December 10, 2020 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

NACDL releases model "Second Look" sentencing legislation providing for resentencing after a decade in prison

As noted in this press release, today "NACDL released its model 'Second Look' sentencing legislation and accompanying report – Second Look = Second Chance: The NACDL Model “Second Look” Legislation.  The NACDL model legislation provides a vehicle that legislatures can use to safely reduce the number of individuals serving excessive, counter-productive sentences: guaranteeing all incarcerated individuals a 'Second Look' once they have spent at least a decade in prison."  Here are links to the model legislation and report:

Here is the key operative provision of the model legislation:

Notwithstanding any other provision of law, including any applicable mandatory minimum sentence, an incarcerated individual who has served at least ten years of their sentence may petition their sentencing judge for a reduction of their sentence.

And here are a few paragraphs from the 14-page report:

This report advocates a simple yet powerful step states can take to safely reduce the number of individuals locked into counter-productive, decades-long sentences: guaranteeing that every inmate will get a “Second Look” once they have spent at least a decade in prison.  This proposal would allow long-term incarcerated individuals, assisted by counsel, to petition courts for a sentence reduction after ten years in prison, and periodically thereafter if warranted.  As this report explains, the procedure created by NACDL’s proposed legislation is flexible, allowing judges to consider a wide range of up-to-date information in assessing whether a lengthy sentence can appropriately be reduced.  It gives victims a voice to whatever extent they want one, without burdening them.  It includes appellate review to ensure fairness and consistency. And it includes mechanisms for channeling the resulting savings back into programs that will help make the program sustainable — and help the individuals who receive a second chance to succeed and become productive members of society, to the benefit of all.

“Second Look” is an idea whose moment has arrived.  By enacting comprehensive legislation like that proposed here, state governments can position themselves as leaders in correcting the worst and most counterproductive excesses of the mass incarceration era, delivering savings to state budgets, and a second chance to individuals and communities who have been left behind for too long.

December 10, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"The Mass Criminalization of Black Americans: A Historical Overview"

The title of this post is the title of this article that is soon to be published in an issue of the Annual Review of Criminology and is authored by Elizabeth Hinton and DeAnza Cook. Here is its abstract:

This review synthesizes the historical literature on the criminalization and incarceration of black Americans for an interdisciplinary audience.  Drawing on key insights from new histories in the field of American carceral studies, we trace the multifaceted ways in which policymakers and officials at all levels of government have used criminal law, policing, and imprisonment as proxies for exerting social control in predominantly black communities from the colonial era to the present.  By underscoring this antiblack punitive tradition in America as central to the development of crime-control strategies and mass incarceration, our review lends vital historical context to ongoing discussions, research, and experimentation within criminology and other fields concerned about the long-standing implications of institutional racism, violence, and inequity entrenched in the administration of criminal justice in the United States from the top down and the ground up.

December 10, 2020 in Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Noting the notable number of prosecutors now supportive of sentencing second looks

The Washington Post had this important and lengthy new article from earlier this week under the headline "A growing group of prosecutors, who say the job is more than locking people up, wants to help free criminals, too."  Here are excerpts from the start of the piece:

When Calvin McNeill was 16, he and a group of friends in Baltimore decided to rob a neighborhood dice game.  Things got chaotic, and McNeill shot and killed a man. It was 1981. The teen was sentenced to life in prison.  Over the next 39 years, McNeill became a model inmate and was approved for parole three times, but each time the Maryland governor vetoed his release. 

So Baltimore State’s Attorney Marilyn Mosby joined a defense motion to reconsider his sentence last summer.  A judge granted it, and McNeill was freed in July this year.  Since his release, “everybody that I have come across has opened up their arms to me,” McNeill said, “and said, ‘We’re glad to see you home.  And we understand that you were a baby when you got locked up.’”

On Monday, Mosby announced the launch of a sentencing review unit in Baltimore to address both mass incarceration and racial inequities in the justice system.  Of the 2,500 people serving life sentences in Maryland, 79 percent are Black, Mosby said, though African Americans make up only 30 percent of the state population.  In Baltimore, of the 815 prisoners sentenced to life, 94 percent are Black.

Also Monday, the newly elected district attorney of Los Angeles, George Gascón, announced at his swearing-in that he, too, is launching a sentencing review unit.  Gascón said he conservatively estimates that 20,000 prisoners will immediately qualify for resentencing.  He said he believes some were given drastically long sentences, others are older and unlikely to reoffend, and others should be released because of covid-19 concerns.

“The role of a prosecutor is not only one of seeking justice,” Gascón said in an interview, “but also of correcting injustice . . . This is going to be the first time in the nation where there will be this massive effort coming from the largest prosecution offices in the country.”  He said half of Los Angeles’s prisoners are rated low-risk to reoffend and if thousands are released, “there will be billions of dollars in savings” on incarceration costs. “This is gigantic,” Gascón said.

The push to begin revisiting lengthy prison sentences, as part of the justice reform effort being promoted by big city prosecutors around the country, is gaining momentum even in states like Maryland, where there is no formal mechanism for prosecutors to revisit settled cases.  Prosecutors in San Francisco, Boston, Philadelphia and Brooklyn are also launching sentencing review initiatives.

While a growing number of prosecutors also are seeking to uncover and reverse wrongful convictions, which occur in a small percentage of cases, the move to release those who were correctly convicted but have now served decades in prison could have a far wider impact.  More than 2 million Americans are in jail or prison, which is believed to be the highest incarceration rate in the world.

In Washington state, a bill allowing prosecutors to seek resentencing passed this year, and the district attorney in Seattle announced a sentencing review unit in June. But the office had already been quietly achieving prisoner releases since 2007, “with a bit of a wink to the judge,” King County District Attorney Dan Satterberg said.  “We knew no one was going to appeal it.”  In the District, the city has released 53 inmates since passing a law in 2016 allowing for resentencing if the offender was younger than 18 and served at least 15 years in prison.  Now the city council is considering expanding the group of eligible inmates to those who committed crimes at age 24 or younger and have spent 15 years incarcerated....

Last year in Prince George’s County, newly elected State’s Attorney Aisha Braveboy created the state’s first conviction and sentencing integrity unit to review both convictions and sentencings that might deserve new consideration.  Seven people sentenced to life as juveniles have been released, an office spokeswoman said.

Extreme sentences, particularly those that wouldn’t be imposed today, divert resources away from the root sources of crime, turn prisons into elder care centers and alienate communities torn by mass incarceration, said Miriam Krinsky, executive director of Fair and Just Prosecution, which helps organize and coordinate newly elected prosecutors. “When the system is out of alignment with communities,” Krinsky said, “people will stop trusting the system and stop cooperating, and then we’re all at risk.”

Prosecutors launching such efforts have devised a number of factors to consider for each case, such as the prisoner’s original crime, their rehabilitation in prison, their plan for reentry into society, their likelihood to reoffend and the opinions of the victims in their case.  A number of experts said that victims often don’t oppose the release of the offender and that the occurrence of new crimes by those released is low.

I cannot help but note that many years ago I gave a keynote speech at a conference focused on the work of prosecutors when I suggested they should be much more involved in reviewing past sentences. That speech got published as Encouraging (and Even Requiring) Prosecutors to Be Second-Look Sentencers, 19 Temple Political & Civil Rights L. Rev. 429 (2010).  It is nice to see that it only took about a decade for this idea to start coming into vogue.

December 10, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Is the unanimous SCOTUS ruling in Briggs notably kind to the "evolving standards" approach to the Eighth Amendment?

I noted in this post the Supreme Court's unanimous ruling this morning in US v. Briggs, No. 19-108 (S. Ct. Dec. 10, 2020) (available here), which fundamentally concerned an issue of statutory interpretation.  But the Eighth Amendment was part of the fabric of the statutory debate, and I was struck by how the opinion by Justice Alito for the full Court — save Justice Barrett, who was not yet on the Court by the time of oral argument — discussed how the Eighth Amendment is interpreted in these two passages:

This Court has held that the Eighth Amendment incorporates “‘evolving standards of decency.’” Kennedy v. Louisiana, 554 U.S. 407, 419 (2008) (quoting Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion); emphasis added).  Thus, even if we were to hold that rape could be punished by death in the military context, the evolving-standards test could later lead to a different result and thus a different statute of limitations at some point in the future.  Such evolution has been held to have occurred on a number of past occasions.  Compare Atkins v. Virginia, 536 U. S. 304, 321 (2002) (Eighth Amendment prohibits death penalty for defendant described as mentally retarded), with Penry v. Lynaugh, 492 U.S. 302, 340 (1989) (Eighth Amendment permits death penalty for such a defendant); compare also Roper v. Simmons, 543 U.S. 551, 574–575 (2005) (Eighth Amendment prohibits death penalty for crime committed by person under 18 years of age), with Stanford v. Kentucky, 492 U. S. 361, 380 (1989) (Eighth Amendment permits death penalty for defendants who are at least 16 years of age)....

As noted, in deciding whether the Eighth Amendment permits a death sentence for a particular category of offenses or offenders, the Court has looked to evolving societal standards of decency and has also rendered its own independent judgment about whether a death sentence would aptly serve the recognized purposes of criminal punishment in certain categories of cases. See Kennedy, 554 U.S., at 419–421, 441–446; Roper, 543 U.S., at 561, 571–575; Atkins, 536 U.S., at 318–321.  Some Justices have eschewed aspects of those approaches and have looked instead to the original understanding of the Eighth Amendment.  See, e.g., Graham v. Florida, 560 U.S. 48, 99–102 (2010) (THOMAS, J., dissenting); Atkins, 536 U. S., at 348–349 (Scalia, J., dissenting); Thompson v. Oklahoma, 487 U.S. 815, 864, 872–873 (1988) (same); cf. Glossip v. Gross, 576 U.S. 863, 894, 898–899 (2015) (Scalia, J., concurring).  But under either method, the inquiry is quite different from the one that a lawmaker might make in fixing a statute of limitations.

This accounting of Eighth Amendment interpretation in Briggs is certainly meant to be just descriptive, as it notes how "the Court has" approached Eighth Amendment interpretation and how some Justices " have eschewed aspects of those approaches and have looked instead to the original understanding of the Eighth Amendment."   Nevertheless, this discussion of the "evolving-standards test" still struck me as fairly "kind" to a "living Constitution" vision of the Eighth Amendment in a unanimous Court ruling circa 2020.  Though I am likely reading way too much into these passages, I will be eager in future writings to have a fresh 2020 citation for the proposition that the Supreme Court has indicated that courts are look "to evolving societal standards of decency" when interpreting the Eighth Amendment.  United States v. Biggs, No. 19-108, slip op. at 8 (S. Ct. Dec. 10, 2020).  And, I will also like to be able to say that, as the Supreme Court has clearly explained , "this evolving-standards test could later lead to a different result" under the Eighth Amendment even when a punishment has previous been upheld as constitutional.  Id. at slip op. 6-7.

December 10, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

SCOTUS unanimously rejects narrowed interpretation of UCMJ statute of limitation for rape

The Supreme Court this morning handed down a unanimous opinion opinion in US v. Briggs, No. 19-108 (S. Ct. Dec. 10, 2020) (available here), concerning the applicable statute of limitations in military rape prosecutions.  Here is how Justice Alito's opinion for the Court gets started:

We must decide in these cases whether, under the Uniform Code of Military Justice (UCMJ), a prosecution for a rape committed during the period from 1986 to 2006 had to be commenced within five years of the commission of the charged offense or whether such a prosecution could be brought at any time, as is the rule at present.  The Court of Appeals for the Armed Forces (CAAF), reversing its prior decisions on this question, held that the statute of limitations was five years and that it therefore barred the rape convictions of respondents, three military service members.  See 78 M. J. 289 (2019); 78 M. J. 415 (2019); 79 M. J. 199 (2019).  We granted certiorari, 589 U. S. ___ (2019), and now reverse.

The opinion that follows goes on to discuss Eighth Amendment jurisprudence in the course of conclude that this jurisprudence should not impact interpretation of the statute of limitation at issue here. Here are some key passages:

In short, if we accepted the interpretation of Article 43(a) adopted by the CAAF and defended by respondents, we would have to conclude that this provision set out a statute of limitations that no one could have understood with any real confidence until important and novel legal questions [regarding the Eighth Amendment] were resolved by this Court. That is not the sort of limitations provision that Congress is likely to have chosen....

Viewing Article 43(a) in context, we are convinced that “punishable by death” is a term of art that is defined by the provisions of the UCMJ specifying the punishments for the offenses it outlaws. And under this interpretation, respondents’ prosecutions were timely.

December 10, 2020 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

BJS seeking comment on data collection regarding state and federal prison responses to COVID

A helpful reader suggested helpfully that I note this new Federal Register notice from DOJ's Bureau of Justice Statistics which seeks to "encourage comments for 60 days until February 8, 2021, on a new data collection: National Prisoner Statistics program: Coronavirus Pandemic Supplement (NPS-CPan)."  The email I received linking to the notice describes the request this way:

The Bureau of Justice Statistics encourages comments for 60 days until February 8, 2021, on a new data collection: National Prisoner Statistics program: Coronavirus Pandemic Supplement (NPS-CPan).  Your comments to BJS's request to the Office of Management and Budget, published in the Federal Register, should address points such as—

  • whether the proposed data collection is necessary, including whether the information will have practical utility
  • the accuracy of the agency's estimate of the burden of the proposed collection of data, including the validity of the methodology and assumptions
  • whether and how the quality, utility, and clarity of the information to be collected can be enhanced
  • the burden of the information collection on respondents, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques.

This data collection will provide data on the state and federal prison response to the coronavirus disease (COVID-19) between March 1, 2020 and February 28, 2021, including: monthly counts of admissions and stock populations in all publicly and privately operated facilities within each state, the total number of persons who received expedited release from prison due to the COVID-19 pandemic and criteria for deciding which prisoners received expedited release, the number of tests performed on prisoners and staff, the number of unique prisoners and staff testing positive for COVID-19, the age, sex, and race distributions of prisoners testing positive for, and dying from COVID-19, the number of prison staff who died from COVID-19, and the use of common mitigation tactics in facilities to identify persons with the disease and prevent its spread.  Respondents will be staff in state departments of corrections and the Federal Bureau of Prisons.

December 10, 2020 in Data on sentencing, Detailed sentencing data, Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

December 9, 2020

Sentencing Council for England and Wales issues new sentencing guidelines for firearm offenses that include drawing drawing sentencers' attention to historic disparities

As reported in this official news release, titled "Sentencing guidelines for firearms offences published," the Sentencing Council for England and Wales has released some new sentencing guides that includes an especially interesting element intended to respond to historic ethnic sentencing bias.  Here are the basics from the release (with some emphasis added):

Today, the Council is launching eight new sentencing guidelines to be used by the Crown Court and magistrates’ courts in England and Wales when sentencing firearms offences. The new guidelines will come into effect on 1 January 2021.

The aim of the guidelines, which will apply to adult offenders, is to help the courts deliver appropriate sentence levels for the unlawful possession of firearms and take a consistent approach to sentencing these offences.

Firearms offences are serious.  Some offences carry life imprisonment, some carry sentences of up to 10 years, and some require minimum sentences of five years, but there are currently no sentencing guidelines in the Crown Court and only one for use in magistrates’ courts.

Analysis conducted by the Council in preparation for the guidelines suggests there are disparities in sentence outcomes for some firearms offences based on ethnicity (see the response to consultation, pages 29-32).  The Council has taken measures in the guidelines to address this, including drawing sentencers’ attention to evidence of sentencing disparities in specific offences as an integral part the sentencing process.  The Council is committed to continuing to investigate apparent disparity in sentencing outcomes across all offences and will take further action as and when there is evidence of effective measures that can be applied to guidelines. 

This new article from The Guardian, headlined "Judges told they should consider previous racial bias before sentencing: Guidelines remind the bench black offenders tend to receive longer sentences for firearms offences," provides some additional context.  Here is an excerpt:

Judges and magistrates are to be given explicit reminders for the first time in sentencing guidelines of the disparity in punishments being imposed by the courts on white, Asian and black offenders. The advice is included in formal directions circulated by the sentencing council to those on the bench about how they should assess penalties for firearm offences.

The offences, which cover possession, discharge and manufacture of weapons, can result in a maximum prison term of up to 10 years. The eight new guidelines come into effect on 1 January.

Judges and magistrates are asked to consider the culpability of offenders according to whether, for example, the gun was loaded, shots have been fired, if it was for criminal purpose and the harm caused to any victim. But it is the inclusion of explicit reminders to judges and magistrates that the courts have in the past not achieved racial parity in the distribution of punishments that is highly unusual and novel.

In the guideline for the offence of possessing a firearm without a certificate, for example, judges and magistrates are reminded: “Sentencers should be aware that there is evidence of a disparity in sentence outcomes for this offence which indicates that a higher proportion of Black and Asian offenders receive an immediate custodial sentence than White offenders and that for Black offenders custodial sentence lengths have on average been longer than for White offenders.”

The note continues: “There may be many reasons for these differences, but in order to apply the guidelines fairly sentencers may find useful information and guidance … [in specific sections of] the Equal Treatment Bench Book.”

In another note, on possession of a prohibited weapon, the reminder states: “Sentencers should be aware that there is evidence of a disparity in sentence outcomes for this offence which indicates that where the minimum term applies, a higher proportion of White offenders receive a sentence below the mandatory minimum term, and as a result less severe sentences compared to Black, Asian and Other ethnicity offenders.”...

In 2017, a review by David Lammy QC, commissioned by the Ministry of Justice, highlighted bias against black and minority-ethnic suspects in the criminal justice system of England and Wales.  Among possible reasons for disparities, the sentencing council said, may be the “significance given to previous convictions in sentencing firearms cases.  There is an overrepresentation of black, Asian and other ethnic groups at many stages throughout the criminal justice system compared to the White ethnic group which means that, for example, a black offender may have a more significant record than a White offender of the same age.”

December 9, 2020 in Gun policy and sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Lots of great updates from CCJ's National Commission on COVID-19 and Criminal Justice

Cropped-ccj_nationalcommissioncovid_finallogo_halfreverse-small-2noted here a few month ago that the Council on Criminal Justice (CCJ) had launched an important, timely and impressive new commission titled the "National Commission on COVID-19 and Criminal Justice" and headed by two former US Attorneys General.  That commission has already helped support and has produced a number of important works (examples here and here), and I see that the commission now has a lot of new/updated work linked on the bottom of this webpage.  Here are links to what's there:

Impact Report: COVID-19 and Crime

Two researchers evaluating crime trends in 27 American cities during the pandemic and social unrest over police violence presented new findings through October 2020 in a report for the Commission.

Impact Report: COVID-19 and Jails

A report by researchers with the NYU Public Safety Lab, based on data from 375 jails across 39 states, examined changes in jail populations, their composition, and rebooking trends from Jan. 1 through late October.

Impact Report: COVID-19 and Prisons

Advancing knowledge about the impacts of COVID-19 on state and federal prisons, a report to the Commission updates a previous report on rates of COVID-19 infection and mortality in correctional facilities and describes differences in such rates among states.

December 9, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

"Invisible Prisons"

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

Modern punishment theory is based on an inadequate conceptualization of the severity of incarceration.  While the severity of a prison sentence is measured solely in terms of the length of time, the actual experience of imprisonment is often more punishing and more destructive than a simple loss of liberty.  Yet, lawmakers and judges evince a surprising lack of institutional interest in understanding the experience of imprisonment and applying this knowledge to sentencing.  This lack of official attention to how prison is experienced by incarcerated people is one of the drivers of mass incarceration.

This Article is the first scholarly work to analyze the weaknesses of punishment theory using a new and flourishing branch of political philosophy: epistemic injustice theory.  The theory posits that disfavored social groups are excluded from contributing information about their experience that should be relevant to policy decisions.  Epistemic injustice theory can be applied to analyze why incarcerated people’s accounts of prison’s cruelties are ignored or discounted in punishment decisions.  As a disfavored group, prisoner accounts of prison’s harshness are discredited. As a result, sentencing decisions are made with only the thinnest understanding of the punishment being imposed — number of years of lost liberty — and with no accounting for the actual impact of incarceration on the person sentenced.

Applying the framework of epistemic injustice to explore the thinness of punishment theory serves more than a descriptive function. It also forms the basis for concrete recommendations to improve sentencing policy and practice.  To this end, the Article suggests (1) how sentencing authorities can exercise epistemic responsibility in punishment decisions; (2) how incarcerated people can participate in knowledge-creation; and (3) how the problem of variability of prison conditions can be accounted for in sentencing.

December 9, 2020 in Prisons and prisoners, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

December 8, 2020

Is Alabama Senator Doug Jones now the front-runner to be Joe Biden's pick for Attorney General?

In this post a few week ago, I asked "Is Sally Yates on track to be the next US Attorney General?," and until tonight I was still thinking she was the front-runner for this key Cabinet position.  But this new AP piece, headlined "Biden's attorney general search is focused on Jones, Garland," suggests that confirmation concerns may be driving Prez-elect Biden in another direction.  Here are the details:

Alabama Sen. Doug Jones and federal appeals court judge Merrick Garland are emerging as the leading contenders to be nominated as President-elect Joe Biden’s attorney general, three people familiar with the matter told The Associated Press.  A decision hasn’t been finalized and the dynamics could shift in the coming days as Biden builds out his Cabinet with an eye to ensuring diverse leadership in the top ranks of his administration.

But Jones, who lost reelection last month, and Garland, whose Supreme Court nomination was snubbed by Republicans, appear increasingly well positioned ahead of other rivals. Democrats are particularly concerned about the prospect of Biden nominating former Deputy Attorney General Sally Yates, fearing she could face a difficult confirmation in the Senate because of her role in issues related to the Russia investigation.

Biden’s thinking was described by people with knowledge of the presidential transition’s internal thinking who were not authorized to speak publicly.  Andrew Bates, a representative for the transition, did not comment for this story.  The president-elect is facing pressure to ensure that Black and Latino leaders are prominently positioned in his administration. He selected retired Army Gen. Lloyd Austin this week to become the first Black secretary of defense.

Jones, who is white, has had a long-standing personal relationship with Biden dating back to Biden’s first presidential campaign in 1988. The former U.S. attorney prosecuted members of the Ku Klux Klan who were responsible for a 1963 church bombing in Birmingham, Alabama, and later served as the U.S. attorney there from 1997 until 2001.

Biden met with civil rights activists on Tuesday to discuss diversity in his Cabinet.  The Rev. Al Sharpton, who attended the meeting, encouraged Biden to select a Black attorney general but gave him room to select someone of another race as long as they had a background in civil rights. “I said the least we could have is someone that has a proven civil rights background that’s someone that’s going to handle this heightened racist bigoted atmosphere,” Sharpton told reporters.

It’s unclear whether Garland would fit that standard as easily.  He is an experienced judge with a reputation for moderation who held senior positions at the Justice Department decades ago, including as a supervisor of the prosecution of the 1995 Oklahoma City bombing.  Garland was put forward by President Barack Obama for a seat on the Supreme Court in 2016 following the death of Justice Antonin Scalia, but Republicans refused to hold hearings in the final year of Obama’s term.  The vacancy was later filled by Justice Neil Gorsuch during the Trump administration.

The incoming attorney general would inherit a Justice Department that has endured a tumultuous four years and would likely need to focus on not only civil rights issues and an overhaul of national policing policies after months of mass protests over the deaths of Black Americans at the hand of law enforcement, but also on concerns from Democrats about politicization of the department in the Trump administration....

Supporters of Yates view her nearly 30-year Justice Department career in both Democratic and Republican administrations, and experience ranging from civil rights cases to national security matters, as making her uniquely qualified to lead the department as it looks to move on from the Trump era.  Still, Republican senators would be likely to focus a Yates confirmation hearing on her final year at the department, when the FBI closed out the Hillary Clinton email investigation and opened an investigation into whether the Trump campaign was coordinating with Russia, which later morphed into special counsel Robert Mueller’s investigation....

Jones would not comment Tuesday on the possibility of a nomination as attorney general.  “They have a process and we’ll let that process play,” he told reporters on Capitol Hill.

The Biden team has also been considering a number of other potential candidates for the post, including former Justice Department official Lisa Monaco.

December 8, 2020 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (0)

Expert panel reviewing conviction and sentence urges prison release in high-profile Minnesota homicide case

As reported in this new AP piece, headlined "Expert panel recommends releasing Myon Burrell from prison, more investigation," a notable expert panel that was convened to examine both the conviction and sentence in a high-profile Minnesota case released its report today. Here are the basics from the press report:

A panel of national experts who reviewed Myon Burrell’s conviction for the fatal shooting of a child in Minneapolis recommended that he be released from a life prison term and that authorities continue to investigate his case.  The group, which released its findings Tuesday afternoon, did not examine Burrell’s guilt or innocence in the 2002 killing of 11-year-old Tyesha Edwards, who was struck by a stray bullet as she did homework at her dining room table.

However, the 59-page independent report expressed concerns with investigators’ and prosecutors’ reliance on jailhouse informants and the minimal attention — or complete lack thereof — paid to evidence and witnesses that favored Burrell’s exoneration.  “ … The panel believes that no purpose is served by Burrell’s continuing incarceration, and no negative fact overwhelms the imperative of freedom,” the report said. 

It also referenced the growing understanding of how minors’ underdeveloped brains differ from adults’, and its application to prison terms.  Burrell, 34, was 16 when he was identified as the person who fired gunshots at a rival gang member in Minneapolis; a bullet penetrated a nearby home and killed Edwards.

Burrell, who serves as an imam in the Stillwater prison, has a re-entry plan that involves living with his wife in north Minneapolis or father in Coon Rapids. He has also been offered employment and job training at Al Maa’uun, an Islamic faith community in north Minneapolis, according to the report.

The panel recommended that Attorney General Keith Ellison’s new Conviction Review Unit continue to examine the police investigation into Burrell and his prosecution by the Hennepin County Attorney’s Office. “The record to date reveals several indications that tunnel vision was present in the case,” the report said. “ … Evidence supporting these theories of Burrell’s guilt appears to have been elevated, while evidence supporting his innocence was minimized, not fully explored, or, in some cases, suppressed.”...

Edwards’ father, Jimmie Edwards, told the panel: “If you do the crime, you do the time. [Burrell] is a thug and his whole family is thugs … I hope and pray they will not release him.” Most of Edwards’ family members declined to speak with the panel.

The findings come almost two weeks after Hennepin County Attorney Mike Freeman issued a news release noting that he made an offer to Burrell’s attorney to drop Burrell’s 15-year prison term for attempting to kill the intended target, Timothy Oliver.  Burrell would still have to serve a life term for Edwards’ killing.  (Freeman said neither he nor a judge could change that term.)

Burrell has served 18 years of the life sentence and is eligible for parole in 12 years. Burrell’s attorney, Daniel Guerrero, has said that the timing and purpose of Freeman’s news release was perplexing, and that Freeman can cut the shorter sentence without his approval.  Freeman said Burrell was guilty but deserved reconsideration because he was a minor at the time. “We certainly could not agree to an arrangement where we agree that he’s guilty and [say] ‘Thank you for reducing his sentence,’ ” Guerrero said at the time.

Burrell’s case became a flash point in Sen. Amy Klobuchar’s presidential bid earlier this year when the Associated Press published an investigation raising concerns outlined in the report.  Klobuchar was Hennepin County Attorney when Burrell was first convicted by jurors in 2003.  Burrell was granted a new trial and was convicted of first-degree murder and attempted first-degree murder in a bench trial in 2008 after Freeman took over as Hennepin County Attorney....

According to the report: Six jailhouse informants testified in Burrell’s 2008 trial with the expectation or hope of receiving “benefits” or deals in their cases, including federal cases. Some deals were signed after they provided helpful testimony, which also led to incomplete trial records on the deal. The panel recommended further investigation of such deals. “ … The record does clearly show that the deal being discussed — and, in some cases, that had been offered — were extraordinarily generous,” the report said.

Informant Terry Arrington received a “dramatic” and “highly unusual” deal that reduced his federal sentence from 16 years to 3 years. Arrington recanted his testimony after trial, saying he had testified to shorten his sentence. Informant Dameon Leake had the same motive when he testified; he also later recanted. Another informant’s state sentence was cut in half from a little over 12 years to a little over 6 years.

“The panel surmises that the truly extraordinary nature of these sentence reductions may reflect the degree of public pressure that authorities were feeling to produce evidence that could support a conviction in this high-profile case,” the report said. The panel urged Ellison’s office to obtain all state and federal records related to deals struck with the informants and communications with them, as well as their testimony and related files in other cases to vet their credibility....

The panel was organized by the Center on Wrongful Convictions at Northwestern Pritzker School of Law and the Innocence Project. It was chaired by Mark Osler, a professor at the University of St. Thomas School of Law, and included five other experts from across the country.

The full 60-page "Report Of The Independent Panel To Examine The Conviction And Sentence Of Myon Burrell" is available at this link and it makes for an interesting and impressive read.

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

Gov DeWine essentially declares a de facto moratorium on executions in the state for 2021 and likely beyond

Ohio has long been an interesting death penalty state, in part because it has been among the most active capital punishment states not in the south as measured in terms of executions and death sentences.  It also has reflected the usual politics of death in recent times with 17 executions carried out from 2007 to 2010 under Ohio's last Democratic Governor (Ted Strickland), but only 15 executions from 2011 to 2020 under the Republican Governors of John Kasich and Mike DeWine.  And, according to this new AP article, headlined "Ohio governor: Lethal injection no longer execution option," it now appears that current Ohio Gov DeWine has declared a functional moratorium on executions in the state for the foreseeable future:

Lethal injection is no longer an option for Ohio executions, and lawmakers must choose a different method of capital punishment before any inmates can be put to death in the future, Republican Gov. Mike DeWine said Tuesday.

It’s “pretty clear” there won’t be any executions next year, DeWine told The Associated Press during a year-end interview, adding he doesn’t see support in the Legislature for making a switch in execution method a priority. Ohio has an “unofficial moratorium” on capital punishment, he said. “Lethal injection appears to us to be impossible from a practical point of view today,” the governor said.

DeWine said he still supports capital punishment as Ohio law. But he has come to question its value since the days he helped write the state’s current law — enacted in 1981 — because of the long delays between crime and punishment. DeWine called himself “much more skeptical about whether it meets the criteria that was certainly in my mind when I voted for the death penalty and that was that it in fact did deter crime, which to me is the moral justification.”

Messages were left for leaders in the GOP-controlled House and Senate seeking comment. Former Republican House Speaker Larry Householder, now under federal indictment for his alleged role in a $60 million bribery scheme, questioned last year whether the state should reconsider capital punishment because of the cost and Ohio’s inability to find lethal drugs.

The state’s last execution was July 18, 2018, when Ohio put to death Robert Van Hook for killing David Self in Cincinnati in 1985. Shortly after taking office in 2019, DeWine ordered the Ohio prison system to look at alternative lethal injection drugs. That announcement followed a federal judge’s ruling that said Ohio’s current execution protocol could cause the inmate “severe pain and needless suffering.”

Opponents of Ohio’s death penalty called on lawmakers last month to enact a capital punishment ban during the current lame duck legislative session. They repeated that demand Tuesday. “It’s time for the General Assembly to just end the death penalty in Ohio and repurpose the funds wasted trying to execute people into programs to better serve the needs of murder victim families,” said Abraham Bonowitz, Death Penalty Action director.

I have a few former student who I know work tirelessly on behalf of condemned Ohio defendants, and I sincerely hope this news serves as a kind of holiday present from Gov DeWine for them and their clients.

Some prior related posts during the DeWine era:

December 8, 2020 in Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

"The Court is in Recession: On the Implications of the COVID-19 Pandemic for Indigent Defense Spending"

The title of this post is the title of this timely new paper available via SSRN authored by Andrew Davies, Victoria M. Smiegocki and Hannah E. Hall. Here is its abstract:

What is the likely effect of the recession brought on by the COVID-19 pandemic on indigent defense budgets in the United States?  To look forward, we look backward.  We examine data on county-level spending on indigent defense in Texas during the Great Recession of 2007-2009.  Redistributive policies — those which use tax payer funds to support individuals who themselves pay little or no tax — are particularly susceptible to cuts during times of fiscal stress. Yet our analysis shows indigent defense policy, measured in terms of spending and access to counsel rates, was generally stable through the Great Recession years, even in counties hit hardest.

We attribute this apparent stability to two general explanations.  First, certain factors made Texas unique: expenditures on indigent defense were already relatively low prior to 2007 and legal changes in the state shored up the mandate to supply representation.  And second, the characterization of indigent defense itself as redistributive seems faulty.  Indigent defense policy is also, in an important sense, a set of mutually-beneficial transactions between lawyers and judges, occurring with comparatively little oversight.  The resilience of indigent defense services during times of scarcity suggests it is not only a policy which allocates funds to help the poor, but also is a policy which allocates funds in support of another clientele — the lawyers.

December 8, 2020 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

December 7, 2020

New Los Angeles County DA wastes no time making big policy and sentencing changes

SJM-L-GASCON-1207As detailed in this new Los Angeles Times article, headlined "On first day as L.A. County D.A., George Gascón eliminates bail, remakes sentencing rules," a prominent prosecutor is kicking off his new job in a potent way. Here are some details:

George Gascón embarked Monday on a plan to reimagine criminal prosecutions in Los Angeles County, announcing sweeping policy changes he’ll make as district attorney that include an end to cash bail, a ban on prosecutors seeking enhanced prison sentences and showing leniency to many low-level offenders.

The dramatic reversals of deeply ingrained, traditional law enforcement strategies in the nation’s largest district attorney’s office, also will include a review of thousands of old cases to determine whether lighter sentences or prisoner releases should be sought, Gascón said in a speech during his swearing-in ceremony.

“I recognize for many this is a new path … whether you are a protester, a police officer or a prosecutor, I ask you to walk with me. I ask you to join me on this journey,” he said.  “We can break the multigenerational cycles of violence, trauma and arrest and recidivism that has led America to incarcerate more people than any other nation.”

The reforms announced Monday added to a list of moves Gascón vowed to make during a contentious election against the incumbent district attorney, Jackie Lacey, including a promise to bar his prosecutors from seeking the death penalty in new cases and to end the practice of trying juveniles as adults. He followed through on both issues Monday, announcing them among the slew of new policies he is implementing....

While Gascón’s victory over Lacey was widely viewed as a repudiation by voters of more traditional, “tough on crime” policies, his focus on reducing incarceration rates could meet resistance at a time when violent crime is surging in Los Angeles.  The city has recorded more than 300 homicides for the first time in over a decade this year, and shootings are up more than 30% compared with 2019, according to L.A. Police Department records....

Of all the policy changes Gascón laid out, the end to cash bail, which is set to go into effect Jan. 1, is perhaps the most seismic.  Instead of seeking to hold criminal defendants in custody unless they can afford to post an amount of cash determined by a judge, prosecutors will be directed to ask judges to release them, except when someone is charged in a homicide or other violent felony. In those cases, prosecutors will seek to have defendants kept in custody....

On Monday, Gascón also ordered L.A. County prosecutors to stop prosecuting first-time offenders accused of a wide array of nonviolent crimes, including criminal trespass, disturbing the peace, public intoxication and loitering.

Defense attorneys contend such low-level nuisance crimes disproportionately affect homeless and mentally ill defendants, and can have long-term implications when those people try to find work and housing later in life. Instead of seeking plea deals or convictions, prosecutors will be expected to steer such defendants into pre-trial diversion programs that resolve cases through counseling or other forms of rehabilitation....

Gascón went on Monday to say he would put an end to the use of sentencing enhancements, which prosecutors have long used to win longer sentences against defendants with prior felony convictions or who had been accused of being in a gang.  Sentencing enhancements have come under fire in recent years for being excessively punitive and, in some cases, reliant on faulty police work.  In the last year, for example, several Los Angeles police officers were charged with falsely labeling people as gang members.  That bogus information was fed into a statewide database that is sometimes used to justify imposing enhanced sentences on someone.

The district attorney’s office, he said, will also review “thousands” of cases in which defendants in L.A. County were sentenced under the enhancement rules — a move that could lead to prisoners having their sentences reduced or, in some cases, being released....

Gascón acknowledged that the changes might seem enormous and asked doubters to trust him. “For those of you at home who may be skeptical, I want to ask you to take a moment, close your eyes, and imagine your ideal safe neighborhood. I imagine most of you will imagine a neighborhood with parks, playgrounds and manicured laws. With kids playing and after-school programs flourishing. I don’t imagine most of you are imagining a neighborhood with a police officer on every corner,” he said. “We know what safety looks like. But we don’t offer it to every community equally.”

UPDATE: I have found online some of DA Gascon's new policy commitments in memos called "Special Directies."  These all make for interesting reads:

DA Gascon Special Directive 20-06: PRETRIAL RELEASE POLICY

DA Gascon Special Directive 20-11: DEATH PENALTY POLICY

DA Gascon Special Directive 20-12: VICTIM SERVICES

DA Gascon Special Directive 20-14: RESENTENCING

December 7, 2020 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Congressional Budget Office estimates bill to end federal marijuana prohibition would reduce federal prison time "by 73,000 person-years, among existing and future inmates"

As noted in this prior post, late last week a high-profile federal marijunana reform bill with provisions seeking to redress the harms of the drug war, the MORE Act, was passed by the US House of Representative.  An accounting of the possible fiscal impact of the bill (which is H.R. 3884) was released here by the Congressional Budget Office (CBO), and sentencing fans might find these calculations especially interesting:

H.R. 3884 would federally decriminalize cannabis (marijuana), expunge the records of people convicted of federal cannabis offenses, and require resentencing of some federal prisoners.  As a result, CBO estimates, thousands of current inmates would be released earlier than under current law.  In the future, decriminalization also would reduce the number of people in federal prisons and the amount of time federal inmates serve.  In total, over the 2021-2030 period, CBO estimates that H.R. 3884 would reduce time served by 73,000 person-years, among existing and future inmates. CBO's analysis accounts for time served by offenders convicted of cannabis-only crimes and by those convicted of another crime in addition to a cannabis offense.

Federal prisoners generally are not eligible for federal benefit programs.  By reducing the prison population, CBO estimates, H.R. 3884 would increase the number of federal beneficiaries, compared with current law, and thus increase direct spending for federal benefit programs by $636 million over the 2021-2030 period.

December 7, 2020 in Marijuana Legalization in the States, Pot Prohibition Issues, Prisons and prisoners | Permalink | Comments (0)

"Police Prosecutions and Punitive Instincts"

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

This Article makes two contributions to the fields of policing and criminal legal scholarship.  First, it sounds a cautionary note about the use of individual prosecutions to remedy police brutality.  It argues that the calls for ways to ease the path to more police prosecutions from legal scholars, reformers, and advocates who, at the same time, advocate for a dramatic reduction of the criminal legal system’s footprint, are deeply problematic.  It shows that police prosecutions legitimate the criminal legal system while at the same time replaying the racism and ineffectiveness that have been shown to pervade our prison-backed criminal machinery.

The Article looks at three recent trials and convictions of police officers of color, Peter Liang, Mohammed Noor, and Nouman Raja, in order to underscore the argument that the criminal legal system’s race problems are playing themselves out predictably against police officers.  The Article argues that we should take the recent swell of prison abolitionist scholarship to heart when we look at police prosecutions and adds to that literature by exploring this controversial set of defendants that are considered a third rail, even among most abolitionists.

Second, the Article argues that police prosecutions hamper large-scale changes to policing.  By allowing law enforcement to claim that brutality is an aberration, solvable through use of the very system that encourages brutality in the first place, we re-inscribe the failures of policing and ignore the everyday systemic and destructive violence perpetrated by police on communities of color.  In order to achieve racial justice and real police reform, we must reduce our reliance on the police, rather than looking to the criminal legal system to solve this crisis.

December 7, 2020 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Might federal execution plans be impacted if Attorney General William Barr were to step down in coming days?

Bill-barr-doj-4The question in the title of this post is prompted by these two new press pieces:

From the AP, "Trump ratchets up pace of executions before Biden inaugural"

From the New York Times, "Barr Is Said to Be Weighing Whether to Leave Before Trump’s Term Ends"

Here are extended excerpts from the lengthy and effective AP piece (with a few items emphasized):

As Donald Trump’s presidency winds down, his administration is ratcheting up the pace of federal executions despite a surge of coronavirus cases in prisons, announcing plans for five starting Thursday and concluding just days before the Jan. 20 inauguration of President-elect Joe Biden.

If the five go off as planned, it will make 13 executions since July when the Republican administration resumed putting inmates to death after a 17-year hiatus and will cement Trump’s legacy as the most prolific execution president in over 130 years.  He’ll leave office having executed about a quarter of all federal death-row prisoners, despite waning support for capital punishment among both Democrats and Republicans.

In a recent interview with The Associated Press, Attorney General William Barr defended the extension of executions into the post-election period, saying he’ll likely schedule more before he departs the Justice Department.  A Biden administration, he said, should keep it up. “I think the way to stop the death penalty is to repeal the death penalty,” Barr said. “But if you ask juries to impose and juries impose it, then it should be carried out.”

The plan breaks a tradition of lame-duck presidents deferring to incoming presidents on policy about which they differ so starkly, said Robert Durham, director of the non-partisan Death Penalty Information Center.  Biden, a Democrat, is a death penalty foe, and his spokesman told the AP that he’d work to end the death penalty when he is in office.  “It’s hard to understand why anybody at this stage of a presidency feels compelled to kill this many people … especially when the American public voted for someone else to replace you and that person has said he opposes the death penalty,” Durham said. “This is a complete historical aberration.”...

Anti-death penalty groups want Biden to lobby harder for a halt to the flurry of pre-inaugural executions, though Biden can’t do much to stop them, especially considering Trump won’t even concede he lost the election and is spreading baseless claims of voting fraud.  The issue is an uncomfortable one for Biden given his past support for capital punishment and his central role crafting a 1994 crime bill that added 60 federal crimes for which someone could be put to death....  Several inmates already executed on death row were convicted under provisions of that bill, including ones that made kidnappings and carjackings resulting in death federal capital offenses.

The race of those set to die buttresses criticism that the bill disproportionately impacted Black people.  Four of the five set to die over the next few weeks are Black.  The fifth, Lisa Montgomery, is white.  Convicted of killing a pregnant woman and cutting out the baby alive, she is the only female of the 61 inmates who were on death row when executions resumed, and she would be the first woman to be executed federally in nearly six decades.

The executions so far this year have been by lethal injection at a U.S. penitentiary in Terre Haute, Indiana, where all federal executions take place.  The drug used to carry out the sentences is sparse.  The Justice Department recently updated protocols to allow for executions by firing squad and poison gas, though it’s unclear if those methods might be used in coming weeks.

The concern about moving forward with executions in the middle of a pandemic — as the Bureau of Prisons struggles with an exploding number of virus cases at prisons across the country — heightened further on Monday when the Justice Department disclosed that some members of the execution team had tested positive for the virus.... 

Barr suddenly announced in July 2019 that executions would resume, though there had been no public clamor for it.  Several lawsuits kept the initial batch from being carried out, and by the time the Bureau of Prisons got clearance the COVID-19 pandemic was in full swing....  Critics have said the restart of executions in an election year was politically motivated, helping Trump burnish his claim that he is a law-and-order president.  The choice to first execute a series of white males convicted of killing children also appeared calculated to make executions more palatable amid protests nationwide over racial bias in the justice system....

The expectation is that Biden will end the Trump administration’s policy of carrying out executions as quickly as the law allows, though his longer-term approach is unclear. Durham said that while Obama placed a moratorium on federal executions, he left the door open for future presidents to resume them.  Obama, for whom Biden served as vice president, never employed the option of commuting all federal death sentences to life terms.  As president, Biden could seek to persuade Congress to abolish the federal death penalty or simply invoke his commutation powers to single-handedly convert all death sentences to life-in-prison terms. “Biden has said he intends to end the federal death penalty,” Durham said. “We’ll have to wait and see if that happens.”

Though Prez Trump has a long history of supporting the death penalty, that there was no clear effort to move forward with executions when Jeff Sessions was Attorney General during Prez Trump's first few years in office has led me to assume that the resumption of federal executions has been Attorney General William Barr's "passion project."  And the fact that AG Barr is apparently telling the AP that "he’ll likely schedule more before he departs the Justice Department" leads me to wonder if one reason AG Barr has not stepped down from his post already is because he is now eager to preside over as many executions as possible given that Prez-elect Joe Biden has pledged to shut down the federal machinery of death.

Of course, even if William Barr were to step down as Attorney General in the coming days, the work of the Trump Department of Justice would continue and likely would include continued efforts to carry out at least the five currently scheduled executions.  Still, as COVID-based and other litigation surrounds the pending executions, a Justice Department without AG Barr might be just a little less eager to get every possible condemned person to the execution chamber before noon on January 20, 2021.

December 7, 2020 in Criminal justice in the Trump Administration, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

December 6, 2020

"Death Penalty Abolitionism From the Enlightenment to Modernity"

The title of this post is the title of this new paper authored by Mugambi Jouet available via SSRN. Here is its abstract:

The modern movement to abolish the death penalty in the United States stresses that this punishment cannot be applied fairly and effectively.  The movement does not emphasize that killing prisoners is inhumane per se.  Its focus is almost exclusively on administrative, procedural, and utilitarian issues, such as recurrent exonerations of innocents, incorrigible racial discrimination, endemic arbitrariness, lack of deterrent value, and spiraling financial costs.  By comparison, modern European law recognizes any execution as an inherent violation of human rights rooted in dignity.  This humanistic approach is often assumed to be “European” in nature and foreign to America, where distinct sensibilities lead people to concentrate on practical problems surrounding executions.

In reality, this Article demonstrates that the significant transatlantic divergence in abolitionism is a relatively recent development.  By the late eighteenth century, abolitionists in Europe and America recurrently denounced the inhumanity of executions in language foreshadowing modern human rights norms.  Drawing on sources overlooked by scholars, including the views of past American and French abolitionists, the Article shows that reformers previously converged in employing a polyvalent rhetoric blending humanistic and practical objections to executions.  It was not before the 1970s and 1980s that a major divergence materialized.  As America faced an increasingly punitive social climate leading to the death penalty’s resurgence and the rise of mass incarceration, its abolitionists largely abandoned humanistic claims in favor of practical ones.  Meanwhile, the opposite generally occurred as abolitionism triumphed in Europe.

These findings call into question the notion that framing the death penalty as a human rights abuse marks recent shifts in Western Europe or international law.  While human rights have indeed become the official basis for abolition in modern Europe, past generations of European and U.S. abolitionists defended similar moral and political convictions. These humanistic norms reflect a long-term evolution traceable to the Renaissance and Enlightenment.  But for diverse social transformations, America may have kept converging with Europe in gradually adopting humanistic norms of punishment.

December 6, 2020 in Death Penalty Reforms, Sentencing around the world | Permalink | Comments (0)

Tangible example of continuing big sentence reductions in COVID era thanks to the FIRST STEP Act

I have highlighted in some recent posts some important new circuit rulings about district courts' sentence reduction authority under 3582(c)(1)(A) after FIRST STEP Act (see here and here).  These rulings reinforce that federal judges now have broad authority to consider any and all "extraordinary and compelling reasons" for a sentence reduction and need not just focus on medical reasons for granting compassionate release.  But, of course, amidst the worldwide COVID pandemic, lots and lots of vulnerable inmates have lots and lots of medical reasons for requesting compassionate release, and many federal judges have been responsive to these requests.  

As of this writing, the BOP is now reporting at this FSA page that there have been "2,205 Approved" total "Compassionate Releases / Reduction in Sentences" since the passage of the FIRST STEP Act in December 2018.  The US Sentencing Commission has previously reported, as noted here, that 145 of these motions were granted in "First Step Year One," which in turn suggests that over 2000(!) compassionate release motions have now been granted by federal district judges in the COVID era. 

These topics are on my mind because a helpful reader sent me a district court ruling granting a sentence modification last week that provides a tangible example of a defendant securing quite a significant sentence reduction.  I sometimes get asked about examples of a defendant securing relief despite having served less than half of their initial sentence, and US v. Ferizi, No. 1:16-cr-42 (LMB) (ED Va. Dec. 3, 2020) (available for download below), is such a case.  The defendant in Ferizi was initially sentenced to 240 months in prison, but that sentence was "reduced to time served" after he served just over 60 months. Here is an excerpt (cites removed):

There is no dispute that defendant has a particularized susceptibility to the disease.  Defendant has had a chronic cough since childhood, and was diagnosed with asthma in 2018. Defendant's obesity is yet another factor that places him at greater risk for severe illness — the CDC has warned that having a body mass index greater than 30 is a risk factor, and defendant's BMI has fluctuated between 30 and 31 during his incarceration.  Considering these multiple risk factors, the government has conceded that Ferizi is at elevated risk of contracting COVID-19, and as such has established 'extraordinary and compelling circumstances' to justify release for purposes of 18 U.S.C. § 3582....

Defendant has also satisfactorily responded to the Court's concerns that it might be infeasible to release him if he could not then be promptly deported, either because he might be on a no-fly list or because Kosovo might refuse to accept him.  The government has "confirmed with FBI and ICE" that, in spite of defendant's no-fly status, he would be able to board a specifically-designated deportation flight....

The government argues that even if that is the case, "the seriousness of [defendant's] offense and the danger he poses to the community make him an inappropriate candidate for compassionate release."  There is no doubt that defendant committed a serious offense when he provided the personal information of U.S. government and military employees to ISIL, and as the victim impact letter attached to the Presentence Investigation Report demonstrates, his actions were harmful to the individuals whose names appeared on the list posted by ISIL.  Nevertheless, even defendants who have committed very serious offenses can be appropriately released from custody or supervision where "[t]here is no indication that defendant poses a risk to the public, and reducing defendant's sentence to time served will not diminish the seriousness of his offense or respect for the law."...

In this case, defendant's offense did not involve violence, and none of the individuals whose information he gave to ISIL suffered physical harm. Defendant has explained that he
"totally and completely oppose[s] ISIL and all that it stands for," and that immaturity rather than ideology was the primary motivator of his conduct....  Defendant had no significant criminal history before his arrest for his present offenses, which he committed when he was only 19 years old.  He has incurred only minor infractions while in BOP custody, all of which were more than two years ago.  He has completed educational courses and drug treatment programs, and has been rated by BOP staff as a "low" risk for recidivism....

Given defendant's age; the more than five years he has spent in prison, including the particularly brutal months in the Malaysian prison; his health risks; and the conditions at Gilmer, defendant has established extraordinary and compelling grounds for release, which the § 3552 [sic] factors do not outweigh. 

Download Ferizi Order Granting Compassionate Release

A few of many prior related posts:

December 6, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Discussing clemency activity by Prez Trump for six more weeks seems unavoidable, doesn't it?

As highlighted by this post from last week, I am generally much more interested in thinking about how Prez-elect Biden might reform the clemency process than about how Prez Trump might use the clemency power over his last six weeks in office.  But my news feed these days is overflowing with all sorts of reports and commentary about Prez Trump's possible pardon plans, so I suspect this will have to be an evergreen blog topic in the weeks ahead.

In reviewing some recent pieces, I really liked the last couple sentences in this short NPR commentary headlined "The Truth About Pardons" authored by Scott Simon: "It's sheer speculation as to what other pardons Trump might issue as he leaves office. But a president's personal power to pardon can change lives — and reveal what they value."  I sincere hope Prez Trump is eager to change some lives for the better in this coming weeks, though I will wait to see what Prez Trump does in the coming weeks before reflecting on what his clemency record suggests about his values.  Meanwhile, here are just a few of many other pieces on this topic to recently catch my eye:

From NPR, "In His Final Weeks, Trump Could Dole Out Many Pardons To Friends, Allies"

From Politico, "Trump mulls preemptive pardons for up to 20 allies, even as Republicans balk"

From Prof. Jeffrey Crouch, "Trump and Bill Clinton pardon scandals should help Biden fix a flawed process"

For the most substantial new reporting on this topic, I highly recommend this effective new Daily Beast piece by White House reporter Asawin Suebsaeng.  The piece is fully headlined "Inside the Frantic Push to Get Trump to Pardon…. Everyone: Allies, advocates, and Alice Johnson are on a mad dash to get the president to bestow clemency and ‘mercy’ before Biden takes over."  The full piece highlights how fully fraught these matters now are for so many, and here is a snippet:

For the past month, President Donald Trump’s political allies and friends, as well as various lawyers, have been rushing against the clock to convince him to fulfill a lengthy wish list of pardons and commutations before Joe Biden takes office in late January.  “We’ve been flooded with requests,” said a senior White House official, who added that a lot of the appeals have been nakedly political and partisan, as is expected at the end of a presidency....

But buried elsewhere in the vast clutter of requests and considerations are reams of documents sent by advocates to the White House counsel’s office requesting pardons or clemency for drug offenders and longtime federal inmates who grew up under harsh circumstances and have turned their lives around behind bars.  Behind the scenes, a loose coalition of unexpected allies are sprinting to get the president’s ear and put many of these cases before him and his White House lawyers.  Some are the president’s confidants, MAGA diehards, and Trump advisers.  Others are criminal justice reform advocates who’ve learned to love him. Others have long loathed him and his policies.

On Friday Nov. 20th, Alice Johnson, a criminal justice reform advocate whose life sentence was commuted by Trump two and a half years ago, visited the president for a 30-minute meeting, during which she outlined some of the cases she and her allies had already forwarded to the White House for vetting. “It was a very good meeting,” Johnson told The Daily Beast, publicly confirming the discussion for the first time.  “I went to the White House in order to present cases before the president in the Oval Office, for people I know are very deserving people… There are around 30 names that I’ve already sent to the White House counsel.  I talked about some of the individual cases during the meeting with President Trump, but also discussed them collectively, in the sense that they all have outstanding rehabilitation records and outstanding prison records, and none of them pose a danger to the public.”

Johnson said Trump asked questions and expressed concern and receptiveness.  She believes he supports issuing more clemencies this year.  “We are also in the process of vetting and compiling packets for at least 100 more incarcerated individuals,” she said.  “We are in warp speed right now, to get as many through as possible, as quickly as possible.”...

Reform advocate Jason Flom, a well-known record executive and a Democratic donor, said in an interview on Thursday, “This is one of the only issues where there’s some meaningful agreement between the left and the right.  And I’m hoping that because there are conservative groups advocating alongside other organizations for clemency that the president will grant a significant number of them before he leaves office.”

Kevin Ring, president of the nonprofit group Families Against Mandatory Minimums, said, “We’re encouraging everyone to seek clemency at this time.  We know that this time at the end of an administration is the time to do it… We know there are going to be grants that make people scratch their heads and wonder whether that’s the best use of President Trump’s clemency authority. But we hope that for every one of those, there are 10 or 20 grants for people who are serving excessive sentences and deserve to be home.”

A few recent related posts:

December 6, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)