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December 19, 2020

Split Sixth Circuit panel decides FIRST STEP Act's less severe 924(c) mandatory minimums are applicable to resentencing

In this post a full two years ago right after the enactment for the FIRST STEP Act, I flagged some issues regarding which "pipeline" defendants might be able to benefit from the Act's reduced sentencing terms.  (By "pipeline," I meant cases in which offense conduct took place before passage of the FIRST STEP Act, but a sentence was not fully finalized when the Act became law.)  In that post, I noted that Congress in the FIRST STEP Act had expressly provided that the reduced 924(c) mandatory minimums were to be applicable "if a sentence for the offense has not been imposed as of such date of enactment" of the Act.  And then I pondered in that post: "Imagine a defendant already sentenced earlier in 2018, but his sentence is reversed on some other ground and now he faces resentencing in 2019.  Can a defendant get the benefit of any new provisions of the FIRST STEP Act upon resentencing?"

A Sixth Circuit panel this past week spoke to these issues in US v. Henry, No. 19-2445 (6th Cir. Dec 18, 2020) (available here).  The panel split, with the majority eager to give broad application to the FIRST STEP Act's reduced sentencing terms.  The Henry court gives various justifications for its reading of the applicable provision of the Act, including its legislative history: "the legislative history of the First Step Act demonstrates Congress’s intent to remedy overly punitive mandatory-minimum sentences faced by defendants, including defendants resentenced after the Act’s enactment."  Judge Gibbons writing in dissent sees matters differently, explaining "Given the vast sentencing disparities depending on whether the First Step Act applies — 55 years versus 15 years in this case — it is unclear why Congress chose to extend the Act’s protection to a defendant sentenced on the date of enactment but not to a defendant sentenced just one day prior. But whatever the wisdom of that decision, 'Congress has . . . drawn a line in the sand.'"

I am very much in favor of the approach adopted by the majority here, which essentially recognizes that absent a clear "line in the sand" for limiting application of the newer, less severe sentencing terms, it makes sense to give those terms the broadest possible application.  As the dissent notes, a full 40 years of imprisonment is at issue in this matter.  As I see it, if Congress is not 100% clear that an extra four decades of time in a cage  must be imposed, courts ought not mandate its imposition.

December 19, 2020 in FIRST STEP Act and its implementation, Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Ohio Supreme Court strikes down "anti-procreation community-control condition" for man convicted for failing to pay child support to mothers of his 11 children

The Ohio Supreme Court yesterday rendered an interesting decision, by a 6-1 vote, striking down an interesting community control condition in Ohio v. Chapman, No. 2020-Ohio-6730 (Ohio Dec. 18, 2020) (available here). Here is the start and key concluding paragraphs from the majority opinion:

A man was convicted for failing to pay child support to the mothers of his 11 children and sentenced to community control.  One of the conditions of community control imposed by the court was that the man “make all reasonable efforts to avoid impregnating a woman” during his sentence.  The question before us is whether that condition was appropriate.  We conclude that it was not....

Chapman’s failure to properly prioritize his obligations toward his children and pay support as he is able could prompt several conditions of community-control sanctions that would reasonably relate to his offense.  The trial court properly ordered Chapman to obtain and maintain full-time employment.  It could have gone further in this direction: it might have ordered him to participate in job training, placed him in a program that would ensure that he was working and that child support was being deducted from his paycheck, required that he undergo education in financial planning and management, or placed restrictions on his spending.  All of these would be reasonably related to Chapman’s crime of nonpayment of child support.  But as long as the crime of nonsupport depends on an offender’s ability to pay, a prohibition requiring Chapman to “make reasonable measures” to avoid fathering another child during his term of community control is not.

The lack of a fit between the offense of which Chapman was convicted and the availability of other more effective conditions leads to the conclusion that the condition “unnecessarily impinge[d] upon the probationer’s liberty.”  Jones at 52.  On remand, the trial court must remove the anti-procreation condition, but may impose other conditions that are appropriately tailored to the goals of community control.

Justice French was the lone dissenter, and her opinion concluded with these points:

In Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, 814 N.E.2d 1201, at ¶ 20-21, this court concluded that an anti-procreation community-control condition was overly broad because it did not contain a mechanism for lifting the condition.  But here, the trial court required only that Chapman make reasonable efforts to avoid impregnating another woman during his five-year community-control period.  The trial court then outlined a minimum of 12 ways by which Chapman could have the condition lifted.  This is not a case in which the trial court decided to impose an anti-procreation community-control condition for minor instances of failure to pay child support.  Chapman currently has at least 11 children that he is not supporting, and his child-support arrearage at the time of his 2018 resentencing was already over $200,000.  The trial court found that Chapman’s violations of his prior child-support obligations were “egregious and systemic.”  Under these facts, its anti-procreation condition is not overly broad.

December 19, 2020 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (2)

"1 in 5 Prisoners in the U.S. Has Had COVID-19"

The title of this post is the headline of this Marshall Proeject accounting of the ugly state of the pandemic in incarceration nation. Here are some excerpts:

One in every five state and federal prisoners in the United States has tested positive for the coronavirus, a rate more than four times as high as the general population. In some states, more than half of prisoners have been infected, according to data collected by The Marshall Project and The Associated Press.

As the pandemic enters its tenth month — and as the first Americans begin to receive a long-awaited COVID-19 vaccine — at least 275,000 prisoners have been infected, more than 1,700 have died and the spread of the virus behind bars shows no sign of slowing. New cases in prisons this week reached their highest level since testing began in the spring, far outstripping previous peaks in April and August....

Nearly every prison system in the country has seen infection rates significantly higher than the communities around them. In facilities run by the federal Bureau of Prisons, one of every five prisoners has had coronavirus. Twenty-four state prison systems have had even higher rates.

Not all states release how many prisoners they've tested, but states that test prisoners broadly and regularly may appear to have higher case rates than states that don't. Infection rates as of Tuesday were calculated by The Marshall Project and the AP, based on data collected weekly in prisons since March. Infection and mortality rates may be even higher, because nearly every prison system has significantly fewer prisoners today than when the pandemic began, so rates represent a conservative estimate based on the largest known population.

And here are just a few of many recent headlines reporting on some of the ugly particulars in various prison facilities and systems:

From Cincinnati Enquirer, "Coronavirus in Ohio: COVID-19 cases surging among state inmates, prison employees

From FOX10 Pheonix, "Yuma prison warden dies from COVID-19; facility fighting virus outbreak"

From NBC News, "'Like a war zone': Prison that freed Paul Manafort early now ravaged by Covid: Nearly 75 percent of the 856 prisoners at FCI Loretto in Pennsylvania tested positive for Covid-19 in the last month."

From WXYZ, "MDOC hits bleak milestone: Over 100 Michigan prisoners have died from COVID-19"

Sadly, I could links to dozens of stories about COVID outbreaks in prisons all around the country.  Especially given research (some noted here) detailing how COVID caseload grews in the broader community in regions with prisons and fails, I sure hope everyone sees the public health wisdom of prioritizing incarcerated persons for the vaccines.

December 19, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

December 18, 2020

Any predictions on who and how many pardons will be granted by Trump today?

This new Axios piece, headlined "Scoop: Trump pardons expected today," suggests we will see some (significant?) clemency action today from the White House (around 5pm I would guess).  Here is what Axios has to say on the matter:

President Trump plans to issue a wave of pardons today, moving to expedite acts of clemency before Christmas, according to a source with direct knowledge and advocates who have been briefed on the plans.

What to watch: Trump has been considering pardons for friends and allies, as Axios reported, interrupting conversations with associates to spontaneously suggest he add them to his pardon list.  He already pardoned his former national security advisor Michael Flynn.

  • It was unclear who will be included in this batch.
  • Sen. Rand Paul called on Trump to pardon Edward Snowden in an article for The Federalist on Thursday.  A source with direct knowledge of the planning said they did not expect Trump to follow through with a Snowden pardon.

The big picture: Trump has considered several controversial pardons, including for his former campaign chairman Paul Manafort and WikiLeaks founder Julian Assange.

I would expect Prez Trump would be inclined to "save" whatever might prove to be his most controversial pardons for right before he leaves the White House.  But this pre-X-mas reported "wave of pardons" could still prove very interesting, especially because it may reveal whether Prez Trump has any considerable interest in using his clemency powers to dole out a lot of (needed) mercy to folks who are not high-profile offenders with high-profile advocates.

So, just to set a marker and to put a prediction on the record, I will forecast that we will see a few dozen clemency grants (and I am rooting for commutations as well as pardons), with only a few of these grants going to high-profile folks.  This may be a bit of wishful thinking, as his longest previous list of grants came in February and had 11 recipients, with more than a few famous names.  It would be great to see Prez Trump at least double or triple that number today, but I am trying not to get my hopes up.

A few recent related posts:

UPDATE:  As of mid-morning on Saturday, December 19, there has been no announcement of any pardons from the White House. So, the right answers to the questions inthe title of this post are technically "nobody" and "zero."

I suspect the White House is taking a bit more time to check the pardon list, so I remain hopeful we will see a set of clemency grants before Christmas.  But with this issue and this Prez, I am never quite sure what is happening or will happen.

December 18, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

"How States Transformed Criminal Justice in 2020, and How They Fell Short"

The title of this post is the title of this big retrospective put together masterfully by Daniel Nichanian at The Appeal: Political Report.  I highly recommend review of the whole piece, so that you can fully understand its subhealine: "This year of crises, revisited. Nearly 90 state-level bills and initiatives. 17 themes. 7 maps." And here is the lengthy piece's preamble to the issue-by-issue review of reforms:

Throughout 2020’s unprecedented challenges, criminal justice reform advocates called for sweeping changes.  But state officials and legislatures largely ducked the COVID-19 pandemic that is raging inside prisons and jails, and the protests against police brutality and racial justice that followed Breonna Taylor and George Floyd’s murders.  With some exceptions, they forgoed the sort of reforms that would have significantly emptied prisons amid the public health crisis or confronted police brutality and racial injustice in law enforcement.

Still, on other issues there was headway, and states — whose laws and policies control a lot about incarceration and criminal legal systems—set new milestones: They decriminalized drug possession, expanded and automated expungement availability, repealed life without parole for minors and the death penalty, and ended prison gerrymandering, among other measures.

Throughout the year, The Appeal: Political Report tracked bills, initiatives, and reforms relevant to mass incarceration.  Just as in 2019, here’s a review of major changes states adopted in 2020.

Jump to the sections on: the death penaltydrug policyearly release and paroleyouth justicepolicingfines and feespretrial detentiontrials and sentencingvoting rightsexpungement and re-entryprison gerrymandering — and then there’s more.

December 18, 2020 in Elections and sentencing issues in political debates, Offense Characteristics, Prisons and prisoners, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Bipartisan drug sentencing reform in Ohio thwarted by opposition from prosecutors (and former prosecutors)

As well reported in this local article, headlined "Ohio lawmakers pass one criminal justice measure, but a second, broader bill appears to be dead," a long-running effort to reform drug sentencing in Ohio failed to get completely to the finish line in the state General Assembly.  Here are the details:

The Ohio Senate passed a bill Thursday evening that urges more drug treatment and makes it easier for people to have their criminal records sealed.

But a broader criminal justice reform measure that reclassifies many smaller-level drug possession felonies to misdemeanors and requires addicts get treatment looks like it will die in these final days of the 133rd Ohio General Assembly....

“Barring a miracle, I believe it’s dead,” said the Buckeye Institute’s Greg Lawson. “Everything I’ve heard is it’s not coming to the floor.”

A large coalition that includes dozens of organizations across the ideological spectrum — from the conservative Buckeye Institute and the Ohio chapter of Americans for Prosperity to the progressive American Civil Liberties Union of Ohio and Faith in Public Life — was pushing for both bills to pass. Advocates are disappointed that SB 3 appears to have failed....

SB 3 had powerful detractors in prosecutors and judges — including Ohio Chief Justice Maureen O’Connor — who felt the bill would strip judges of discretion, would neutralize the tools that drug courts can use to nudge people through rehabilitation, and would remove an incentive to overcome addiction if there was no threat of a felony conviction.

Gov. Mike DeWine, a former Ohio attorney general and county prosecutor, has said he opposed the bill.

What that ignores, argued Micah Derry, AFP Ohio director, is that felonies follow people for the rest of their lives, even when someone does recover from addiction.  These days, with the power of data mining on the Internet, sealing a record may not shut the books on one’s past.  Many companies that specialize in employment background checks can still find past crimes, thanks to capturing and saving data over time.  “There’s not a single county prosecutor who is a person of color,” Derry said. “Not to get too racial about it, but there’s a reason why people of color have the books thrown at them more than other people.”

Earlier on Thursday, Harm Reduction Ohio, the largest distributor of naloxone in the state, reported drug overdose deaths were high in 2020, with many counties reporting records for the year — especially in Central Ohio and the Appalachian part of the state.  Final data for the year isn’t expected until mid-2021 from the Ohio Department of Health.

The crux of SB 3, mandatory treatment for addicts and reclassification of many felonies to misdemeanors, will unlikely be resurrected next year, said ACLU of Ohio’s Chief Lobbyist Gary Daniels. DeWine will still be in office.  So will Ohio House Speaker Bob Cupp, a former Ohio Supreme Court justice who hasn’t brought it to a floor vote.

Especially because I know many folks who have worked so very hard for years to advance SB3, it is really disappointing that House Speaker Cupp (a former local prosecutor) would not allow a floor vote even after the bll earned committee approval.  I sense that SB3 would have passed in the Ohio House if given a floor vote, and I suspect Gov DeWine (a former local prosecutor) might have ultimately been convinced to sign the bill or allow it to become law.  Especially because House Speaker Cupp perviously served on the Ohio Supreme Court, I wonder if the consistent SB3 opposition of Chief Justice O'Conner (a former local prosecutor) contributed to his unwillingness to even allow this bill to get a vote.

Among other stories, this sad legislative tale serves as yet another reminder of how hard it will be to even slightly revamp the war on drugs no matter how clear its failures are (as well documented by Harm Reduction Ohio).  SB3 did not decriminalize anything (and I believe it increased sentences for hgh-level trafficking); the bill simply sought to reclassify the lowest level drug-possession offenses from felonies to misdemeanors.  But after two years of very hard work by effective advocates on both sides of the aisle, prosecutors and former prosecutors were able to keep this modest reform from even getting a full and fair vote in the Ohio General Assembly.  Sigh.

December 18, 2020 in Drug Offense Sentencing, Offense Characteristics, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

December 17, 2020

Lots of recommendations for criminal justice reform for the incoming Biden Administration

The PBS News Hour has this recent piece headlined "What a Biden administration could mean for criminal justice reform," and it does a nice job providing a broad overview of the wide array of issues of concern to criminal justice reform advocates.  Here is the first paragraph of the extended piece:

President-elect Joe Biden will face pressure when he takes office to make swift changes to the Department of Justice.  But while he’ll be able to implement some reforms on his own, expected pushback from Congress and legal fights could make it hard for Biden to deliver many of the sweeping criminal justice reforms that advocates say are necessary.

I recommend the PBS piece for a quick and summary account of "the sweeping criminal justice reforms that advocates say are necessary."  But anyone interested in a fuller accounting of criminal justice issues of interest and concern on the eve of a new administration, be sure to check out these three big recent reports from prominent reform organizations setting forth ideas and recommendations for the incoming Biden Administration:

There reports collectively run well over a hundred pages, which serves to highlight just how robust and agenda some groups have for criminal justice reform as we anticipate a new administration and Congress.  I would welcome reader input and feedback (in the comments or via email) about whether any particular pieces of advice and specifics recommendations in these reports seem especially astute (or especially misguided).

December 17, 2020 in Criminal justice in the Biden Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (5)

"Expanding the Reach of Progressive Prosecution"

The title of this post is the title of this new essay authored by Jeffrey Bellin now available via SSRN.  Here is its abstract:

"Progressive Prosecutors" are flourishing in jurisdictions across the country.  The question remains whether the progressive prosecutor movement will have a lasting impact and, if so, what that impact will be.  This Essay explores this theme by discussing, first, the rise of progressive prosecution and, second, how this movement’s initial success can stimulate the long-overdue development of a generally applicable, normative theory of the prosecutor’s role.  It suggests a conceptualization of the American prosecutor as a caretaker for the criminal justice system, who should default to lenience when that system becomes so congested and punitive that it cannot deliver on its constitutional ideals.

Even as progressive prosecution remains an ongoing source of reform in liberal jurisdictions, it is important to consider the movement’s impact outside of those jurisdictions. Nonprogressive prosecutors and the voters who elect them are also open to reform.  But they are not likely to embrace the “progressive” label or its accompanying rhetoric.  The key to the overall success of progressive prosecution in the long run may be to invite these prosecutors in and offer them an alternative frame for prosecutor-driven reform.  A new unifying norm of prosecutorial behavior, better suited to the modern era, could turn out to be the most important legacy of progressive prosecution.

December 17, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

December 16, 2020

Lots of notable pardon headlines as we approach the last month of Prez Trump's clemency powers

In part because Prez Trump has not used his clemency power since last month's Thanksgiving week pardon for Michael Flynn, I have managed to avoid discussing the out-going President's potential pardon spree for many days now.  But there is, unsurprisingly, a cacophony of clemency chatter in various media, and highlighted by these recent piece:

From CNN, "'It's turned crazy': Inside the scramble for Trump pardons"

From the Daily Beast, "Trump Is Considering Clemency for Silk Road Founder"

From Forbes, "Trump And Pardons ... Here’s A Case That Might Interest Him"

From Inquisitr, "Justin Amash Calls On Donald Trump To Offer Clemency To Reality Winner: ‘Her Punishment Is Unjust’"

From Newsweek, "Will Donald Trump Pardon Edward Snowden? 'Anything Is Possible'"

From the New Yorker, "What are the Odds That Trump Pardons Himself?"

From WION, "Australian MP urges Donald Trump to pardon Julian Assange before leaving White House"

Here is a snippet from the CNN piece:

Because Trump has shown little interest in using the Justice Department's Pardon Attorney system for assessing requests for executive clemency, petitioners are approaching the White House directly, calling or emailing senior adviser Jared Kushner, chief of staff Mark Meadows or White House counsel Pat Cipollone -- when they can't get ahold of Trump himself....

If there is a governing principle in who appears most likely to secure clemency, it is someone the President either knows personally or who has powerful connections lobbying on their behalf.  At least one person working on behalf of clients seeking pardons said they hoped their loyalty to Trump over the past four years would pay off now.

As it happens, Trump is mulling the pardons at a juncture when loyalty appears his principal concern, complaining repeatedly over the past weeks that Republicans are deserting him when he needed them to help overturn the election results.  He has largely frozen out those advisers and associates who do not seem on the same page.  One person who used to speak to Trump regularly, but who delicately encouraged him to soften his post-election stance, no longer has his calls returned and hasn't heard from Trump in weeks.

In all, the President is considering pardons for more than two dozen people in his orbit whom he believes were targeted -- or could be targeted in the future -- for political ends. That's in addition to hundreds of requests from others who have approached the White House directly, and tens of thousands more whose petitions are pending at the Justice Department.

A few recent related posts:

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

"The Role of Prisoner Voice in Criminal Justice Reform"

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

This paper examines the role of prisoner voice in criminal justice reform in the US. Previous research has attributed reform of criminal justice institutions to either political elites or the public.  This research has not considered the role of prisoner voice in influencing reform. This paper fills that gap.  I argue that prisoner voice — through the avenues of prison journalism and prisoner litigation — serves as an information channel in state criminal justice bureaucracies, holding bureaucrats accountable to their superiors.  I conclude that prison journalism is the only avenue for prisoner voice that influences reform in ways that aligns with voters’ interests.  Prisoner litigation and prison riots result in reform that drives the growth of state prison systems and loss of prisoner privileges.

December 16, 2020 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

DPIC releases year-end report stating "Death Penalty Hits Historic Lows Despite Federal Execution Spree"

Death-sentences-by-yearThis new press release from the Death Penalty Information Center, titled "Executions and Death Sentences Drop to Historic Lows in 2020, even as Federal Government Ramps Up Executions," provides a three-page summary of the DPIC's 36-page year-end 2020 report on the administration of the death penalty in the United States.  The full reports carries this intricate full title "The Death Penalty in 2020: Year End Report; Death Penalty Hits Historic Lows Despite Federal Execution Spree; Pandemic, Racial Justice Movement Fuel Continuing Death Penalty Decline." Here is how the report's introduction starts:

2020 was abnormal in almost every way, and that was clearly the case when it came to capital punishment in the United States. The interplay of four forces shaped the U.S. death penalty landscape in 2020: the nation’s long-term trend away from capital punishment; the worst global pandemic in more than a century; nationwide protests for racial justice; and the historically aberrant conduct of the federal administration.  At the end of the year, more states had abolished the death penalty or gone ten years without an execution, more counties had elected reform prosecutors who pledged never to seek the death penalty or to use it more sparingly; fewer new death sentences were imposed than in any prior year since the Supreme Court struck down U.S. death penalty laws in 1972; and despite a six-month spree of federal executions without parallel in the 20th or 21st centuries, fewer executions were carried out than in any year in nearly three decades.

The historically low numbers of death sentences and executions were unquestionably affected by court closures and public health concerns related to the coronavirus.  But even before the pandemic struck, the death sentences and executions in the first quarter of the year had put the United States on pace for a sixth consecutive year of 50 or fewer new death sentences and 30 or fewer executions.  The execution numbers also were skewed by a rash of executions that marked the federal government’s death-penalty practices as an outlier, as for the first time in the history of the country, the federal government conducted more civilian executions than all of the states of the union combined.

The erosion of capital punishment at the state and county level continued in 2020, led by Colorado’s abolition of the death penalty.  Two more states — Louisiana and Utah — reached ten years with no executions. With those actions, more than two-thirds of the United States (34 states) have now either abolished capital punishment (22 states) or not carried out an execution in at least ten years (another 12 states). The year’s executions were geographically isolated, with just five states, four of them in the South, performing any executions this year.  The Gallup poll found public support for the death penalty near a half-century low, with opposition at its highest level since the 1960s.  Local voters, particularly in urban centers and college towns, rejected mass incarceration and harsh punishments, electing new anti-death-penalty district attorneys in counties constituting 12% of the current U.S. death-row population.

A majority (59%) of all executions this year were conducted by the federal government, which in less than six months carried out more federal civilian executions than any prior president in the 20th or 21st centuries, Republican or Democratic, had authorized in any prior calendar year.  The Trump administration performed the first lame-duck federal execution in more than a century, while scheduling more transition-period executions than in any prior presidential transition in the history of the United States.  The executions reflected systemic problems in the application of capital punishment and drew widespread opposition from prosecutors, victims’ families, Native American leaders, religious leaders, regulatory law experts, and European Union officials.  In addition to the legal issues, the executions also presented public health problems, likely sparking an outbreak in a federal prison, infecting members of the execution teams, and causing two federal defense attorneys to contract COVID-19.

Death sentences, which were on pace for sustained low levels prior to the pandemic, plunged to a record low of 18.  While the resumption of trials delayed by the pandemic may artificially increase the number of death verdicts over the next year or two, the budget strain caused by the pandemic and the need for courtroom space to conduct backlogged non-capital trials and maintaining a functioning court system may force states to reconsider the value and viability of pursuing expensive capital trials.

As I have done in past posts, I have reprinted here one of DPIC's graphics on number of death sentences imposed because I think that data may prove the most critical and consequential for the fate and future of the death penalty. Helpfully, the DPIC report has lots of other important data about a remarkable year. Ninth months ago in a post, I wondered aloud "Might COVID-19 ultimately bring an end to the death penalty in the United States?."  This DPIC report details that the death penalty is still alive, but it seems COVID has certainly contributed to capital punishment's extended decline.

December 16, 2020 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Impact of the coronavirus on criminal justice | Permalink | Comments (0)

A view of plea discounts from across the pond

The Sentencing Academy, an expert group which examines sentencing in England and Wales, has published new report, "Sentence Reductions for Guilty Pleas: A review of policy, practice and research." This new report was authored by by Jay Gormley, Julian V. Roberts, Jonathan Bild and Lyndon Harris, and here is part of its executive summary:

Most convictions in England and Wales in the Crown Court and the magistrates’ courts arise as a result of the defendant entering a guilty plea.  Courts are explicitly required to consider the guilty plea when passing sentence by section 73 of the Sentencing Code (previously section 144 of the Criminal Justice Act 2003).  Defendants who plead guilty and who waive their right to a trial are normally entitled to a sentence reduction.  All common law jurisdictions offer sentence reductions to defendants who forgo their right to trial and instead plead guilty.

The primary source of guidance in England and Wales regarding the levels of reduction appropriate in cases of a guilty plea is the definitive guideline issued by the Sentencing Council in 2017 to replace an earlier guideline issued in 2007....

The sentencing guideline recommends a sliding scale of sentence reductions: later guilty pleas attract a more modest sentence reduction.  If a plea is indicated at the first stage of the proceedings, a sentence reduction of one-third of the custodial sentence should be awarded.  The guideline also specifies that one-third is the maximum reduction appropriate across all cases.  A plea entered after the first stage attracts a maximum reduction of one-quarter.  The reduction awarded should decrease to a maximum of one-tenth on the first day of trial.  The guideline includes a series of exceptions to the recommended reductions.  These allow a departure from the recommended maximum reductions.  For example, if there were circumstances which significantly affected the defendant’s ability to understand what was alleged against them or otherwise made it unreasonable to expect the defendant to indicate a guilty plea sooner.  In addition, there is a separate regime for young defendants....

The 2017 guideline modified a previous guideline issued in 2007.  The new guideline sought to increase the consistency of plea-based reductions to sentence and to encourage defendants who intended to plead guilty to do so at the first opportunity — rather than later in the criminal process.  In the years preceding 2017, a significant proportion (approximately one-third) of trials were avoided close to the trial date for different reasons.  A proportion of these so-called ‘cracked trials’ arose as a result of the defendant entering a guilty plea well after the first opportunity. The guideline was not intended to affect the overall rate of guilty pleas entered.

Research conducted prior to the introduction of the latest guideline revealed that courts were broadly following the 2007 guideline’s recommended reductions.  Thus, almost all (89%) of defendants who entered an early plea received the one-third reduction recommended by the 2007 guideline.  The empirical pattern of reductions diverges to a greater degree for pleas entered at a later stage due to circumstances such as late service of evidence or late compliance with disclosure obligations.  No comparable data have been published to determine whether the pattern of sentence reductions has changed as a result of the new guideline.

December 16, 2020 in Procedure and Proof at Sentencing, Sentencing around the world | Permalink | Comments (0)

December 15, 2020

Reviewing CJUTF Recommendations: how might the Biden Administration seek to abolish the death penalty?

Right after the election, I blogged a bit (here and here) about some criminal justice reform recommendations from the Biden-Sanders Unity Task Force (available here pp. 56-62, called the CJUTF hereinafter).  A few weeks ago, as explained here, I decided to start a series of posts to spotlight and amplify some recommendations from the CJUTF that ought to be of particular interest to sentencing fans.  In the wake of two more notable federal executions last week (noted here and here), this post will focus on a recommendation that speaks of abolition, and here it is:

Death Penalty: Abolish the death penalty at the federal level, and incentivize states to follow the federal government’s example.

This new CNN article, headlined "Dozens of members of Congress call on Biden to end the federal death penalty," reports that a number of members of Congress (but surely not a majority) are eager to see Prez-elect Biden operationalize this recommendations:

More than three dozen members of Congress are calling on Joe Biden's incoming administration to prioritize abolishing the death penalty in all jurisdictions, according to a letter sent Tuesday to the transition team for the President-elect and Vice President-elect Kamala Harris.  While Biden has pledged to abolish the federal death penalty and to give incentives to states to stop seeking death sentences as a part of his criminal justice reform plan, 40 members of Congress and three congresspersons-elect want to make sure the practice ends on his first day in office.

"The current administration has weaponized capital punishment with callous disregard for human life. In the middle of our current public health crisis, the Department of Justice resumed federal executions and executed more people in six months than the total number executed over the previous six decades," Massachusetts Rep. Ayanna Pressley wrote in a letter first obtained by CNN.

The letter was authored by Pressley less than a week after calling for President Donald Trump to stop pending federal executions that are scheduled to take place during his lame duck period.  She specifically joined celebrities, bipartisan politicians and anti-death penalty advocates' call to stop Brandon Bernard's execution as his trial had allegations of prosecutorial misconduct that only surfaced two years ago.

Pressley, a Democrat, introduced legislation on July 25, 2019 -- the same day Attorney General William Barr announced federal executions, which had been stalled since 2003, would resume -- to rid the federal level of the practice and require resentencing for those currently on death row.  The bill has not had any action in the House since August 2019....

"With a stroke of your pen, you can stop all federal executions, prohibit United States Attorneys from seeking the death penalty, dismantle death row at FCC Terre Haute, and call for the resentencing of people who are currently sentenced to death," wrote Pressley.  "Each of these elements are critical to help prevent greater harm and further loss of life."

Executive Director of the Fair and Just Prosecution Miriam Krinsky told CNN after a meeting with the Justice Department's transition team earlier this month that stopping federal executions "doesn't really require congressional action."...

To date, there are 52 people on federal death row and 18 pending state executions, according to the Death Row Information Center.

This CNN piece rightly suggests that Prez-elect Joe Biden could clear out the federal death row on January 20, 2021, by commuting the death sentences (presumably to life without parole) of all persons still on federal death row on his first afternoon in office.  Because there are three pending federal execution scheduled for January that seem likely to go forward, there may only be 49 persons left on federal death row by January 20.  But that number will include, inter alia, mass killers like the Boston Marathon bomber and the Charleston Church shooter.

Of course, commuting all of federal death row, and even instructing his Justice Department not to seek any new death sentences, does not fulfill a commitment to "abolish the death penalty at the federal level."  Doing that will take legislation passed by Congress, and that would seem to be a long-shot in the near-term.  Prez-elect Biden likely could try to include death penalty abolition in a bigger bill about many criminal justice reforms, but doing so would likely generate extra opposition because most Republicans (and still many modern Democrats) strongly  support the death penalty in extreme cases.  I doubt Prez-elect Biden will be eager to use his political capital on this issue in the early days of his presidency, and I wonder if he will want to focus on this issue at all.

Perhaps even more interesting is to imagine how a Biden Administration might seek to "incentivize states to follow the federal government’s example."  Will a Prez Biden really try to encourage states to abolish the death penalty if he does not himself work actively to do so at the federal level?  More generally, would a Prez Biden really seek to condition or restrict funding to states — which is the most obvious way to "incentivize" them — based on whether they abolish the death penalty?  He might need help from Congress to tie federal funding to state capital punishment practices, and I am disinclined to expect Congress to be keen on such a project.

That all said, I sense that death penalty abolition is a high-profile and high-priority concern for many progressive activists and policy-makers.  As such, this issue is one worth watching closely as an indication of how much energy and political capital a Biden Administration may be willing to spend on controversial matters to appease the left flank of his party.

Prior related posts:

UPDATE: Over at Crime & Consequences, Kent Scheidegger highlights in this post that a high-profile federal case presents a high-profile opportunity for the incoming Biden Administration to show a commitment to capital abolition.  Kent's post is titled "The Marathon Bomber, the Death Penalty, and the Biden Administration," and it ends this way:

Are you really opposed to the death penalty in all cases, Mr. President-elect?  If so, this is the case to take the action. This is the case that poses the question in its starkest terms.  Don’t chicken out and announce it in some borderline case on the ragged edge of deserving the death penalty.  Man up and announce it in the case that screams for it.  Direct the Solicitor General to stipulate to the dismissal of the certiorari petition, and announce to the nation that you will not seek a new death sentence for Tsarnaev on remand.

Let’s see what kind of reaction you get.

December 15, 2020 in Criminal justice in the Biden Administration, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

"Defund the crime beat"

The title of this post is the title of this potent posting authored by Tauhid Chappell and Mike Rispoli at the NeimanLab site.  Here is how it starts (with links from the original):

Let’s be honest: Crime coverage is terrible.

It’s racist, classist, fear-based clickbait masking as journalism.  It creates lasting harm for the communities that newsrooms are supposed to serve.  And because it so rarely meets the public’s needs, it’s almost never newsworthy, despite what Grizzled Gary in his coffee-stained shirt says from his perch at the copy desk.

This should be the year where we finally abolish the crime beat.  Study after study shows how the media’s overemphasis on crime makes people feel less safe than they really are and negatively shapes public policy around the criminal–legal system.  And study after study shows that it’s racist and inhumane.

While crime coverage fails to serve the public, it does serve three powerful constituencies: white supremacy, law enforcement, and newsrooms — specifically a newsroom’s bottom line.

December 15, 2020 in Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

A reminder of how the Bill of Rights is mostly about limiting and regulating the police power on Bill of Rights Day

December 15, 1791, is the day when the new United States of America ratified the Bill of Rights, the first ten amendments to the U.S. Constitution, and so today is called Bill of Rights Day.  The National Constitution Center has this webpage honoring the day, though US Courts website rightly declares here that "Bill of Rights Day is Every Day."  Though I do not want to diminish or deprive civil lawyers from celebrating this day, I cannot miss the chance to reiterate a point I made in prior writings about the criminal justice tilt of the Bill of Rights:

Criminal justice power is an extreme form of government power and mass incarceration is an oppressive form of big government.  The Framers fully understood this when they enacted a Bill of Rights that is almost exclusively focused on limiting and regulating the exercise of police power.[FN]  Nine of the first ten Amendments to the Constitution set forth formal or informal safeguards against different possible forms of extreme uses of the police power.

FN  Though the Fourth, Fifth, Sixth and Eighth Amendments are most commonly mentioned (and litigated) when considering limits on the operation of modern criminal justice systems, one might readily view every Amendment of the Bill of Rights save the Seventh as articulating a restriction on the operation of the police power.  See generally LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 207 (3d ed. 2005) (noting that the “leaders of the Revolution . . . felt that the British had abused criminal justice” and that the “Bill of Rights . . . contained a minicode of criminal procedure”).  

So Happy Bill of Rights Day, everyone!

December 15, 2020 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Reviewing thoughtfully the a history of public defenders in the United States

Writing in The Nation, Matthew Clair has this new extended review of Sara Mayeux's recent book, Free Justice: A History of the Public Defender in Twentieth-Century America Unequal Before the Law. The review is headlined "Unequal Before the Law: How did we end up with our current system of public defenders?," and here is an excerpt:

In her new book, Free Justice: A History of the Public Defender in Twentieth-Century America, Sara Mayeux provides a definitive history of this important yet conflicted institution, documenting along the way how liberal legal reforms can function to legitimate material inequalities and distract from more robust commitments to social justice. Taking readers from the Progressive Era to the height of the Cold War, Mayeux shows the stages by which influential reformers crafted our current indigent-defense system.

These days, she notes, public defenders are often taken for granted: Their presence in the courtroom, whether effective or not, is the norm rather than the exception.  Yet as recently as the 1950s, public defender’s offices were rare, and they were controversial, viewed by many lawyers and policy-makers as a socialist reform contrary to American values. Most poor people faced criminal charges unrepresented, with a patchwork of private firms and voluntary legal aid organizations stepping in to defend the few deemed deserving of their philanthropy.  By the 1970s, this system of legal representation had changed; the majority of Americans lived in jurisdictions served by a public defender’s office, and legal professionals came to view the provision of so-called government lawyers as a cornerstone of liberal democracy.

Mayeux’s account is cautionary.  She documents how transformations to American legal culture were made possible by the persistent efforts of advocates, but she also marks the detours and missed opportunities in the formation of the public defender system as we know it today, which raises a set of questions about the efficacy of technocratic and symbolic reforms.  As activists and scholars organize in the current moment, her book offers a lesson in both the possibilities and the limits of such reforms in addressing social inequalities in the courts.  The seeming success of the concept of the public defender reminds us that the expansion of rights in one domain cannot rectify social injustice without a corresponding expansion in others.  Fixing the failures of our criminal legal system requires more than the provision of effective legal representation to the poor; it requires a redistribution of power and wealth to the marginalized communities and individuals whom criminal law targets for punishment.

December 15, 2020 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Prison Policy Initiative reports on "Mass Incarceration, COVID-19, and Community Spread"

Gregory Hooks and Wendy Sawyer with the Prison Policy Initiative has authored this important new report titled "Mass Incarceration, COVID-19, and Community Spread." The full report is today's must-read, and here are parts of its introduction and conclusion:

In 2020, a decades-long American policy failure — mass incarceration — collided with a brand new American policy failure: the mismanagement of the COVID-19 pandemic. After decades of needlessly locking up ever more people in jails and prisons, state and federal lawmakers now faced a public health disaster if they were unable to decarcerate quickly. In this report, we show that the persistent overuse of incarceration — despite decades of evidence of its inefficacy and harms — has had serious consequences. Mass incarceration and the failure to reduce prison and jail populations quickly led directly to an increase in COVID-19 cases, not just inside correctional facilities, but in the communities and counties that surround them.

Since the beginning of the pandemic, it was abundantly clear that the crowded and unsanitary conditions in American prisons and jails would facilitate the rapid spread of the virus, putting incarcerated people and staff at serious risk once the novel coronavirus entered facilities. Officials across the country ignored the threat for too long, perhaps imagining that confined populations would be too isolated from the outside world to contract the virus. But the boundaries between life “inside” and surrounding communities are actually quite porous, with staff, vendors, volunteers, and visitors constantly flowing in and out of correctional facilities — not to mention the frequent turnover and transfers of incarcerated people themselves....

This report outlines our initial findings so that they may be immediately useful to policymakers and advocates; the full study, which includes an analysis of nursing homes and ICE facilities, will be published by co-author Gregory Hooks separately. In addition, we have compiled Appendix tables with more detailed state and local data. In brief, however, we find that:

  1. COVID-19 caseloads grew more quickly over the summer of 2020 in nonmetro counties with more people incarcerated.
  2. COVID-19 caseloads grew much more quickly over the summer of 2020 among counties in multicounty economic areas with more people incarcerated.
  3. Mass incarceration added to COVID-19 caseloads in multicounty economic areas and states. Nationally, this impact reached a tragic scale: Mass incarceration added more than a half million cases in just three months....

The number of people in prisons and jails has led to more COVID-19 cases, among those working or confined in these facilities and among those who simply live near them. As documented here, the number of new COVID-19 infections over the summer of 2020 was greater in counties and multicounty areas with larger and more concentrated incarcerated populations. In total, we estimate that mass incarceration led to 560,000 additional COVID-19 cases nationwide in just three months....

What is needed immediately, at the policy level, is an increased use of clemency, parole expansion, and other legal mechanisms to depopulate prisons and stop the virus from spreading behind bars.  But there is a greater need over the long term: a profound rethinking of how we use incarceration in this country.  It has never been more obvious that locking up millions of people in crowded and unsanitary conditions is harmful — not only for those who are locked up, but for people outside prisons as well.  With the pandemic dragging on, our ability to radically reduce our use of incarceration is now a life or death matter.  If lawmakers cannot make swift changes to reduce correctional populations and keep them low, we should expect that more COVID-19 outbreaks — and more deaths — in prisons and the communities that surround them are still to come.

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

December 14, 2020

Attorney General William Barr announces his resignation ... effective on Festivus

729f0cf5173b56a95ede633168381e5aI suspect Attorney General William Barr may have lots of grievances he is eager to air because today he announced that he will be resigning effective on December 23, which all Seinfeld fans know is Festivus.  This NPR story, headlined "William Barr To Step Down As Attorney General Before Christmas," reports the news and some context:

Attorney General William Barr, an outspoken proponent of conservative values and an expansive view of presidential power, will leave office before Christmas, President Trump announced in a tweet Monday afternoon.

Trump said he and Barr had a "very nice meeting" and that their "relationship has been a very good one." Deputy Attorney General Jeff Rosen will become acting attorney general, Trump said.

Earlier this month, Barr said the DOJ found no evidence of widespread election fraud, directly contradicting President Trump's baseless claims that the election was stolen by Democrats. Ahead of the election, Barr had stood by the president, repeating his unsubstantiated claims that mail-in voting was ripe for fraud.

In less than two years on the job, Barr emerged as perhaps the most divisive attorney general in recent memory for a series of controversial actions, including his handling of special counsel Robert Mueller's report on the Russia investigation and his repeated false claims about the integrity of mail-in voting....

Barr joined the administration halfway through the president's term, and quickly emerged as one of Trump's most loyal and effective defenders. But he came under intense criticism from Democrats and many in the legal community — including even current federal prosecutors — for actions that raised questions about the department's independence.

Barr was nominated in late 2018 to replace Jeff Sessions, a former Alabama senator whose time as attorney general was in large part defined by relentless attacks from Trump — in private and in public — because Sessions recused himself from the Russia investigation. Trump considered that unforgivable and sought, but ultimately failed, to get Sessions to quash the investigation.

That was one reason why members of Congress viewed Barr — a prominent establishment Republican who had been attorney general once before under President George H.W. Bush — as a reassuring choice.  Republicans and Democrats alike had hopes that Barr could bring leadership and a steady hand to the department, which had found itself in the middle of Washington's brutal partisan battles since the 2016 election.

By and large, Barr leaves a department still enjoying strong support from Republicans. Senate Majority Leader Mitch McConnell, R-Ky., and Judiciary Committee Chairman Lindsey Graham of South Carolina repeatedly made clear their strong support for him. Barr's reputation on the other side of the aisle, however, is in tatters.

December 14, 2020 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (0)

Highlighting the election of local prosecutors who have pledged never to seek death sentences

Pasted image 0Daniel Nichanian has this great entry at The Appeal: Political Report titled "Newly Elected Prosecutors Are Challenging The Death Penalty," which effectively reviews the political success of a significant number of prosecutors who have pledged not to pursue capital sentences. Here is parts of the poast:

Death penalty opponents have made great strides over the last decade, getting states to outlaw the sentence or at least reduce its use. Now they’re gaining allies from local officials with direct power to shut down capital punishment: prosecutors.

Last week, Deborah Gonzalez and Jason Williams became the latest candidates to win elections for district attorney after pledging to never seek the death penalty once in office.  Their runoff wins in Athens, Georgia, and New Orleans add to a string of similar results this year in Los Angeles County, Arizona’s Pima County (Tucson), Georgia’s Fulton County (Atlanta), Oregon’s Multnomah County (Portland), and Texas’s Travis County (Austin).  Incoming prosecutors largely echoed advocates’ longtime claims, emphasizing that the death penalty is applied very unequally and that its use is inhumane and costly.

Their wins are poised to upend the culture of capital punishment in places that have been prolific in handing out death sentences, and advocates are preparing to press them to overturn these past sentences.

There are more than 200 people on death row from Los Angeles, where the DA election in November saw George Gascón defeat an incumbent who over the course of her tenure secured the death penalty nearly exclusively against people of color.  Gascón took office this week and promptly repeated his campaign pledge to not just drop the death penalty in future cases but also review past death sentences, a step few prosecutors have taken.  “The death penalty does not make us safer,” Gascón tweeted on Monday. “It’s racist, morally untenable, irreversible, and expensive.  And today, it’s off the table.”

Pima County has also been a death penalty hotspot.  It leads Arizona counties in number of executions since the penalty was reinstated in 1976. But this fall voters elected as their chief prosecutor a former public defender, Laura Conover, who highlighted her past advocacy with the Coalition of Arizonans to Abolish the Death Penalty. Conover is not the first candidate with such experience to be elected.  Parisa Dehghani-Tafti, who was the legal director of the Mid-Atlantic Innocence Project, won a prosecutor’s race in northern Virginia last year on a similar platform.

“It’s absolutely tremendous and exciting that this is taking place in Louisiana, and in Georgia, and in Virginia, states that have a long history with the death penalty, and of course Los Angeles County, one of the biggest contributors to the enormous Californian death row,” said Laura Porter, executive director of the 8th Amendment Project.  “It’s supportive of the trend of the country overall moving away from the death penalty.”

These seven newly elected prosecutors who said they would never seek a death sentence are Democrats, even though Republicans haven’t been absent from the anti-death penalty movement. Support from some Republican lawmakers proved decisive in 2019 and 2020 when Colorado and New Hampshire’s legislatures repealed the death penalty.  (The Political Report only analyzed candidate positions in the 28 states where the death penalty is still legal.)

Elsewhere, longtime prosecutors who have repeatedly used the death penalty lost re-election bids. Most notably, Ron O’Brien is on his way out in Franklin County, Ohio, after decades of zealously championing capital punishment.  The incoming prosecutor, Democrat Gary Tyack, told the Political Report via a spokesperson during his campaign that he would support legislation to ban the death penalty but also that he would consider seeking it as long as it is permitted by the state.  Patsy Austin-Gatson, the incoming Democratic DA in Gwinnett County, Georgia, told the Political Report the same thing this week.

Advocates hope that more DAs will draw strong lines in the sand and rule out adding people to death row. But they also stress that, even with those who make such forward-looking commitments, more is needed.  Prosecutors who oppose the death penalty should also use all legal and political means at their disposal to resentence people who are already on death row and to fight their executions.  “It’s really important … to push prosecutors not just to say, ‘I’ll refrain from using this harsh practice in the future,’ but to refuse to preside over it in the present,” said Ben Cohen, an attorney who works against the death penalty in Louisiana.  “It’s barbaric to allow death sentences from the 1980’s and 1990’s to be executed on your watch.”...

In Los Angeles, though, Gascón released a plan early in his campaign outlining how he would aim to get people off of death row “utilizing every legal avenue available to me.” “It’s completely transformative,” said Natasha Minsker, an attorney who is part of Gascón’s transition team on the death penalty.  “The fact that Los Angeles County is now, as of today, going to stop pursuing death sentences and going to shift in a different direction … is a complete game changer.”  No county in the nation has more people on death row than Los Angeles; Angelenos approved abolishing capital punishment in a 2016 referendum but the initiative failed statewide.

Minsker outlined the range of tools that Gascón can use. Where there is active litigation over a specific legal or factual issue, he could concede arguments made by defense attorneys “and no longer fight for [death sentences] to be in place,” she said.  Many appeals are handled by the attorney general rather than the DA, but Gascón could still file amicus briefs to assist people contesting their sentences.  Gascón could also request a resentencing hearing for someone on death row, Minsker said.  DAs don’t necessarily have this power nationally; here it stems from California’s relatively new Section 1170(d), a statute that adopted in 2018 that expanded DAs’ powers to revisit old cases. Minsker warned that courts retain ultimate say in whether to remove people from death row.  “The real unknown here is the judges,” she said.  “I’m concerned that we may end up in a situation where we have disparities based on who the judge is.”

It is usually prosecutors who are the greatest hurdle to ending or curtailing the death penalty.  They routinely work to derail legislative proposals, including in Ohio, Oregon, and Wyoming over the last few years.  Even DAs who campaigned on their discomfort with capital punishment have gone on to fight efforts to stop executions, such as Kim Ogg in Harris County (Houston).  But Ogg had not outright ruled out seeking the death penalty during her 2016 campaign, a far cry from the stronger positions staked by the latest wave of winners.

December 14, 2020 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

US Sentencing Commission issues big new report on "The Influence of the Guidelines on Federal Sentencing: Federal Sentencing Outcomes, 2005–2017"

I am pleased to see that the United States Sentencing Commission is continuing to release notable data reports despite being an incomplete agency due to the absence of confirmed commissioners for years.  Today brings this notable new publication, clocking in at nearly 100 pages, titled "The Influence of the Guidelines on Federal Sentencing: Federal Sentencing Outcomes, 2005–2017."  Here is this reports "Key Findings": 

In this report, the Commission analyzes the difference between average guideline minimums and average sentences imposed.  These differences, measured in a raw number of months and average percentage difference, are analyzed for all cases in the aggregate and selected individual guidelines across three time periods between 2005 and 2017: the Booker, Gall, and Post-Report Periods.  While the extent of those differences vary depending on the individual guideline, the Commission found several overarching trends indicating that the guidelines generally continue to have a substantial influence on sentences imposed after Booker.

  • In the wake of Booker and Gall and continuing into the Post-Report Period, the difference between the average guideline minimum and average sentence imposed widened for the federal caseload overall, indicating that the influence of the guidelines generally decreased after Booker rendered them advisory.  However, this trend has not continued in the most recent years of the Post-Report Period, suggesting that the influence of the guidelines may have stabilized.

  • The influence of the guidelines continued to vary substantially depending on the type of offense throughout the Post-Report Period.  As indicated by the difference between the average guideline minimum and average sentence imposed, the guidelines continued to exert a strong influence on sentences imposed in firearms and illegal reentry offenses, a more moderate influence on sentences imposed in fraud and drug offenses, and a weakening influence in non-production child pornography offenses and career offender cases.

  • Major amendments by the Commission to the drug trafficking and illegal reentry guidelines appear to have strengthened their influence during the most recent years of the Post-Report Period.  The difference between the average guideline minimum and average sentence imposed for these two guidelines narrowed after the Commission reduced the Drug Quantity Table by two offense levels in 2014 and comprehensively revised the illegal reentry guideline in 2016.

  • The guidelines generally exert a greater influence on sentences imposed in cases in which judicial discretion could be meaningfully assessed.  Excluding cases in which judicial discretion could not be meaningfully assessed narrowed the difference between the average guideline minimum and the average sentence imposed for the federal caseload overall, and for all but one individual offense type studied, across every time period studied.  This narrowing was largely attributable to the exclusion of cases with substantial assistance departures, which resulted in an average sentence reduction of 51.8 percent.  Sentence reductions for substantial assistance require a government motion and afford substantial weight to the government’s evaluation.

In short form, and at the risk of being too flip or summary about these findings, I take this all to mean that the USSC has through its data analysis found: (a) federal judges generally follow the less-crazy-severe guidelines somewhat more than the more-crazy-severe guidelines, AND (b) when the USSC finally gets around to amending the guidelines to make some of the more-crazy-severe guidelines a bit less crazy-severe, judges are inclined to follow those guidelines a bit more.  Oh, and (c) we really have no clear idea what the heck may be going on when prosecutors exercise their discretionary sentencing powers through substantial assistance departures (since, I assume, the DOJ shares no information with the USSC about the decision-making of federal prosecutors).

December 14, 2020 in Booker and Fanfan Commentary, Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

"Experience to Action: Reshaping Criminal Justice After COVID-19"

Final-Report-Banner-WebsiteI have noted repeatedly (most recently here) the great work being done by a special commission created by the Council on Criminal Justice (CCJ) titled the "National Commission on COVID-19 and Criminal Justice."  This commission today released this important new report with the title that I used for the title of this post.  Here is part of the report's executive summary:

This report, Experience to Action: Reshaping Criminal Justice After COVID-19, provides criminal justice policymakers and practitioners with a priority agenda to prepare the nation’s criminal justice system for future public health crises.

Through its recommendations, the Commission seeks to better balance the roles and responsibilities of the public health and public safety fields.  Launched at the end of July, the Commission received multiple reports and extensive testimony from leading national and local experts.  Key findings include:

  • Crime: Property crime and drug offense rates fell from 2019 to 2020, but violent crime increased significantly. In particular, homicide rates increased by 42% during the summer months (June to August) in a sample of more than 20 medium to large cities, and by 34% in the fall (September to October).

  • Prisons: Prison populations have been reduced by about 5% nationally. On average, the COVID-19 mortality rate within prisons (61.8 deaths per 100,000 people in prison) was double the mortality rate for the general population, after adjusting for the gender, age, and race/ethnicity of those incarcerated.  There are also substantial differences among states in the rate of prison infections and deaths.

  • Jails: Jail populations fell by 31% in the early weeks of the pandemic but have been slowly climbing toward prior levels since May. During the pandemic, the rates at which people have been rebooked on new charges 30, 60, and 180 days after release remain below pre-pandemic rates. Unfortunately, data regarding COVID-related infections and deaths in jails is scarce.

  • Racial and Ethnic Disparities: The COVID-19 pandemic may have exacerbated some racial and ethnic disparities in the criminal justice system.  As jail populations began to fall in March at the onset of the pandemic, there were increases in the proportion of people who were Black, who were booked on felony charges, who were male, and who were 25 or younger.  These changes in the population composition persisted even as jail populations began to rise again in early May.

  • Substance Use and Mental Health Disorders: More than 40 states have reported increases in opioid-related fatalities since the onset of the pandemic.  Mandatory lockdowns, restrictions on movement, social distancing guidelines, orders limiting access to facilities for nonessential workers, and the absence of in-person treatment have created gaps in the system's ability to identify and monitor the needs and legal requirements of people with substance abuse and mental health disorders, and to intervene when they are in distress.

  • Budgets: State and local governments face daunting budget deficits that will worsen as the pandemic wears on, and unemployment levels remain high.  Because criminal justice operations (law enforcement, courts, and corrections) are funded more heavily by state and local governments than most other government functions, revenue shortfalls will disproportionately damage the criminal justice system without effective policy interventions....

The report’s findings and recommendations identify weaknesses in the nation’s criminal justice response to the pandemic and provide concrete suggestions for how to build a stronger, fairer, and more resilient system.

As detailed here, there is a webinar to discuss this report is scheduled for midday tomorrow.

December 14, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Making a great case for greater data to improve sentencing decision-making and sentencing systems

I was very pleased this morning to see this new Atlantic piece authored by two Ohio state jurists, Judge Pierre H. Bergeron of the Ohio Court of Appeals and Justice Michael P. Donnelly of the Ohio Supreme Court.  Because I have had the honor of participating in ongoing efforts to improve sentencing data in the Buckeye State, I knew I was going to like the piece when I saw its full title: "How a Spreadsheet Could Change the Criminal-Justice System: A lack of data instills trial-court judges with enormous, largely unrestrained sentencing power."  And the full piece, which I fully recommend, does a terrific job of advocating against allowing sentencing to occur in dangerous darkness because of the absence of sound and accessible sentencing data.  Here are some excerpts from the piece (with links from the original):

Judges have various restrictions on what they can say publicly, and for that reason, you don’t often hear our voices in contemporary public-policy debates.  But as momentum builds to address deep inequities in our criminal-justice system, we feel it’s important to highlight a problem lurking in the background that could jeopardize these efforts: Many court systems lack basic data about themselves, including about their criminal-sentencing decisions.  This means that when a judge considers a sentence for a criminal defendant, he or she has no way to evaluate it against others handed down for similar crimes in the same state, or even the same county....

A lack of data collection and analysis is a nationwide problem.  Many states, including Ohio, where we serve, do not have reliable statewide numbers on the criminal sentences they impose.  The states that do compile statistics have significant gaps.  The problem extends beyond sentencing — many states also can’t measure, for instance, what the average bail rate is for various offenses, or even the effectiveness of the bail system.

All of this may strike one as inconceivable: How does a court system lack basic statistics in this technological day and age?  The answer varies by state, but typically, antiquated IT infrastructure in state courts, no uniform requirements on compiling numbers, and a lack of coordination across jurisdictions precludes gathering meaningful numbers and demographics.  And, in many corners, institutional interests are aligned to resist transparency out of a fear of what might show up....

For states that are starting to gather statistics, they are finding troubling, but not surprising, results.  The Massachusetts Supreme Judicial Court commissioned an analysis of statewide numbers to evaluate racial disparities.  Plagued by many data challenges, this effort took several years.  The recently published report showed what many of us know: People of color are vastly overrepresented in the criminal-justice system as defendants; they receive longer sentences than white defendants; and they are typically charged with more serious offenses to begin with (a leverage tool to force plea agreements). When judges see reports that show this is happening in their own courts, they must ask themselves hard questions about their own complicity in these results.   

In 2016, investigative reporters with the Sarasota Herald-Tribune conducted a comparison study that confirmed racial disparities in Florida’s criminal-justice system. One of the examples from their study examined two cases involving armed robbery.  The same judge sentenced a white defendant to two years, but a Black defendant to 26 years — for essentially the same offense.  These two individuals were almost the same age, both had a single prior misdemeanor, and they were rated the same based on Florida’s sentencing guidelines.  When judges have virtually unchecked discretion, and they lack ready access to sentencing data, these discrepancies are bound to continue happening....

Although data challenges are pervasive and a key barrier to criminal-justice reform, they can be solved. In response to the statewide analysis conducted by the Sarasota Herald-Tribune, Florida legislators passed groundbreaking legislation to standardize the way the state gathers and shares information.  The state has already missed some deadlines, but the legislation as designed would render Florida one of the most transparent states in the country from a criminal-data perspective.

Other states are also starting to create comprehensive databases so that informed criminal sentences are accessible to all stakeholders — judges, prosecuting and defense attorneys, defendants, and policy makers.  Currently, the nonprofit Measures for Justice has compiled statistics for 16 states.  Ohio, led by Chief Justice Maureen O’Connor, is in the process of developing a felony-sentencing database with the objective of making information accessible, shareable, and reportable.  It can’t come soon enough.  Indeed, if every state acted quickly, we could solve this issue in short order, and then move on to implement lasting criminal-justice reform that would end mass incarceration.

The goal of these efforts is not to eliminate judicial discretion (judges aren’t robots, after all) but to provide sound analysis to inform judges in the exercise of that discretion.  If everyone has complete access to information, the prosecutor can make an informed sentencing recommendation, the defense counsel can use the data to make his or her case, and the judge can feel secure in knowing that the sentence imposed fits well within the range from other courts around the state.  If the sentence deviates up or down, the judge can give a reason on the record, providing greater transparency in the process.  Objective measures that are comparable, consistent, and reliable can better ensure the equalized application of justice....

The judicial system relies on the trust of our citizenry; public confidence is its lifeblood.  We must act in deliberate and real ways to create change in our courts. And that requires working with all stakeholders — including the community, legislators, and law enforcement.  No one, including judges, can sit back and pretend that the problem of inequality is too intractable or the result of someone else’s decisions any longer.  Collecting and utilizing sentencing data will help build a better, more equitable justice system.

December 14, 2020 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Via 6-3 per curiam ruling, SCOTUS reinstates Arizona death sentence after finding Ninth Circuit "clearly violated [its] AEDPA jurisprudence"

The US Supreme Court issued this lengthy order list this morning, though much of its length comes from the Court's 13-page per curiam decision in Shinn v. Kayer, No. 19-1302 (S. Ct. Dec. 14, 2020) (available here). The Kayer case results from a murder committed more than a quarter century ago which resulted in an Arizona death sentence. The SCOTUS decision, from which Justices Breyer, Sotomayor, and Kagan dissented but without any opinion, vacates a Ninth Circuit reversal of the death sentence. Here is how the opinion begins and ends:

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) restricts the power of federal courts to grant writs of habeas corpus based on claims that were “adjudicated on the merits” by a state court.  28 U.S.C. §2254(d).  When a state court has applied clearly established federal law to reasonably determined facts in the process of adjudicating a claim on the merits, a federal habeas court may not disturb the state court’s decision unless its error lies “beyond any possibility for fairminded disagreement.”  Harrington v. Richter, 562 U.S. 86, 103 (2011).  In this case, the Court of Appeals erred in ordering issuance of a writ of habeas corpus despite ample room for reasonable disagreement about the prisoner’s ineffective-assistance-of-counsel claim.  In so doing, the Court of Appeals clearly violated this Court’s AEDPA jurisprudence.  We therefore grant the petition for certiorari and vacate the judgment below....

Under AEDPA, state courts play the leading role in assessing challenges to state sentences based on federal law.  A state court heard Kayer’s evidence and concluded that he failed to show prejudice.  The court below exceeded its authority in rejecting that determination, which was not so obviously wrong as to be “beyond any possibility for fairminded disagreement.” Id., at 103.  Under §2254(d), that is “‘the only question that matters.’” Id., at 102.

We grant the petition for a writ of certiorari, vacate the judgment of the United States Court of Appeals for the Ninth Circuit, and remand the case to that court for further proceedings consistent with this opinion.

December 14, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

December 13, 2020

An awesome reading list on "Second Look Sentencing"

Greg Newburn has created this terrific new posting under the title "Second Look Sentencing: A (Running) Reading List for Legislators, Staff, Advocates, and Everyone Else." I highly recommend all the items linked in this great reading list, and here is the post's preface to the list:

The idea of “Second Look” sentencing — that the law should allow some mechanism by which institutional actors can legally revisit sentences to ensure they remain appropriate (or to adjust those that never were) — has been around for some time.  Now, it is gaining traction. For example, the Model Penal Code now contains a second look provision; last year, a second look bill was filed in the Florida Legislature, and passed several committees (the bill was recently re-filed for the 2021 session); a second look bill looks poised to pass in Washington, D.C. any day now; the new District Attorney for Los Angeles County, George Gascón, announced his office will create a “resentencing unit” tasked with conducting second look-style reviews in thousands of cases; earlier this year, Broward County, Florida State Attorney Michael Satz announced what he called an “equitable review” process that led to the early release of drug offenders serving sentences no longer found in law; and the National Association of Criminal Defense Lawyers just released model second look legislation, a fantastic aid for legislators interested in adopting second look laws in their states.

Given the momentum second-look sentencing seems to have at the moment — and the fact that adopting such laws is a moral necessity given the way current sentencing structures deny thousands of our fellow human beings their liberty unnecessarily — I thought it might be useful to put together a list of materials — law review articles, opinion pieces, blog posts, panels, etc. — that legislators, staff, advocates, and laypeople could use for a better understanding of some of the theoretical and moral issues surrounding second look sentencing, how it would work in practice, why it would protect and even improve public safety outcomes, and so on.

December 13, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Transforming the Progressive Prosecutor Movement"

The title of this post is the title of this notable paper newly posted to SSRN and authored by Darcy Covert. Here is its abstract:

It is a near universally accepted principle that prosecutors are the most powerful actors in the criminal system.  In response, a new movement has emerged: Its proponents argue that, by electing progressive district attorneys, we can use the power of prosecutors to end mass incarceration and restore fairness to the criminal system without changing a single law.  They propose to accomplish these goals primarily by declining to prosecute certain low-level crimes, expanding diversion programs, and replacing hardline assistants with reform-minded outsiders.  Academics, activists, presidential candidates, and even a Supreme Court Justice have endorsed this movement as the key to change.

With little sustained scrutiny of this development, this Article takes this movement’s objectives as they are and asks whether, as currently framed, it is likely to achieve them.  The conclusion is simple: no.  This movement acknowledges the “breathtaking” power that prosecutors yield, then asks its candidates to use that power for good and trusts them to do so.

This Article offers a more efficacious prescription: if you are a prosecutor truly committed to transforming the criminal system, relinquish your power.  Do not trade the rhetorical appeal of being tough on violent crime for political capital to spend on lenience for low-level offenders.  Advocate for the reallocation of funds from prosecutors’ offices — rather than the expansion of diversion programs — to social services to keep the mentally ill, substance addicted, and poor out of the criminal system.  Rather than hoping to prevent wrongful convictions and over-punitiveness by changing who works in your office, lobby for a stronger indigent defense system and more external limits on prosecutorial power.  To combat racial inequities in the criminal system, support efforts to strengthen defendants’ equal protection rights, instead of simply publishing statistics.  Through these shifts, we can harness this moment when criminal justice reform tops the national agenda to implement truly transformative change.

December 13, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)