« December 20, 2020 - December 26, 2020 | Main | January 3, 2021 - January 9, 2021 »

January 2, 2021

REMINDER of DEPC and OJPC and CCRC drafting contest: "Re-Imagining 'Second Chances': Improving Ohio’s Re-Entry Provisions"

Download (8)A few weeks ago in this post I noted the on-going drafting contest sponsored by a partnership of the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law, the Ohio Justice & Policy Center (OJPC), and the Collateral Consequences Resource Center (CCRC).  Here are the basic details draft from this web page (where you can find this longer official announcement):

About the Contest

With the goal of furthering the ongoing debate of how “second chance” mechanisms can be improved in Ohio, the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law, the Ohio Justice & Policy Center (OJPC), and the Collateral Consequences Resource Center are sponsoring a contest for law students and recent law-school graduates.  Specifically, entrants are encouraged to submit a proposal and accompanying commentary suggesting changes to Ohio’s existing statutory provisions that would help people obtain relief from collateral consequences.

Proposals should address both substance (e.g., when and to whom would it apply) and procedure (e.g., how would it function).  Additionally, proposals can, but need not be, drafted as proposed legislative text; a “policy paper” or other like submission is acceptable, though any submission must include an actionable proposal for reform of Ohio laws. The proposal might include concrete suggestions for making existing tools more broadly and easily accessible, but it could also advocate for wholesale changes to the mechanism and means for relief in Ohio.

Contest Timeline and Awards

Submissions are due January 11, 2021.  The winning submission will receive a prize of $1,500, and one runner-up prize of $500 will also be awarded.  If a group submission is awarded prize money, it will be divided equally among the group’s members.  All winning submissions will be published via DEPC and OJPC’s websites.  The full winning proposals may be used in DEPC and OJPC’s ongoing efforts to advocate for improvements in Ohio law.

January 2, 2021 in Collateral consequences, Reentry and community supervision | Permalink | Comments (0)

DC Circuit panel upholds January 12 execution date for only woman on federal death row

Just before Christmas, as noted in this post, a federal district judge vacated an order from the director of the Bureau of Prisons that had set Lisa Montgomery’s execution date for January 12.  But, on New Year's Day, a DC Circuit panel issued this order putting the execution back on track.  This CNN article about the ruling provides some context:

Montgomery's execution had been scheduled for December 8, but a judge postponed it after her attorneys said they were diagnosed with Covid-19 after flying from Texas to visit with Montgomery at the Federal Correctional Complex in Terre Haute, Indiana.

On November 23, the director of the Federal Bureau of Prisons, Michael Carvajal, rescheduled Montgomery's execution for January 12.  Friday's order said he was acting under the "governing regulation," which allowed him to reschedule the execution because the original execution date had not passed.  The order said he was acting under the law, clearing the way for Montgomery's execution later this month.

Montgomery's attorney, Meaghan VerGow, said in a statement that she disagrees with the judges and is going to file a petition for them to reconsider their decision.  The judges gave VerGow until Saturday to file. "The federal government must be required to follow the law in setting any execution date, as the district court correctly held ... Given everything we know about Lisa Montgomery's mental illness, her lifetime of horrific torture and trauma, and the many people in positions of authority who could have intervened to save her but never did, there can be no principled reason to carry out her execution," VerGow said.  "The government should stop its relentless efforts to end her life."...

The Trump administration has overseen 10 federal executions in the final months of his presidency, the most in a single year in the United States in decades, and a revival after years of having none.  Montgomery would be the first woman executed by the US government since 1953.

In 2004, Montgomery was convicted of strangling a Missouri woman who was eight months pregnant, then cutting out and kidnapping the baby.  The baby survived.

The last woman executed by the US government was Bonnie Brown Heady in 1953, according to US Bureau of Prisons records, for kidnapping and murder.  The US also famously executed Ethel Rosenberg that same year for espionage.

I suspect Montgomery's lawyers will pursue further appeals. But, in lots of prior federal capital cases in recent months, appeals courts (including the Supreme COurt) have consistently refected efforts to slow down the federal machinery of death.

January 2, 2021 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

January 1, 2021

Reviewing CJUTF Recommendations: when and how might Biden Administration create an independent clemency board?

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); I stressed in one of those posts that Prez-elect Biden could get started right away in implementing recommendations calling for creating a new "Task Force on Prosecutorial Discretion" and a "Clemency Board."  Especially with so much clemency chatter as Prez Trump's term comes to a close, I am eager to again amplify attention on the clemency recommendation.  Helpfully, this lengthy new Bloomberg piece, headlined "Biden Gets Unlikely Advice on Pardons: Copy Trump, Sideline DOJ," provides some useful background and context.  Here are excerpts:

President Donald Trump’s pardons of some of his closest allies have sparked a political firestorm, but criminal justice reform advocates believe he has done one thing right: sideline the Department of Justice from clemency decisions.  But rather than use that control the way Trump has, those advocates want to see President-elect Joe Biden use it to help non-violent drug offenders with questionable convictions or harsh sentences.  Relying on the DOJ’s Office of the Pardon Attorney to review and make recommendations on clemency requests, they say, is bureaucratic and puts those decisions in the hands of the department that put the offenders behind bars....

Biden’s criminal justice plan proposes a number of reforms and says he will “broadly use his clemency power for certain non-violent and drug crimes.” The campaign would not comment past the plan’s language.  In addition to removing the sole oversight of the Office of the Pardon Attorney, Biden could improve the process by creating a permanent independent advisory panel that includes criminal justice reform activists, defense attorneys and pardoned convicted offenders, alongside federal prosecutors, supporters say.

“It should certainly include people who are formerly incarcerated because they know that walk better than anybody,” said Cynthia W. Roseberry, deputy director of policy in the Justice Division of the American Civil Liberties Union.  “Also include criminal justice reform experts and members of the community who can opine about the fact that we want people to come home.  I’m not suggesting leaving DOJ out,” Roseberry added.  “They can definitely have a prosecutor at the table.  But it should look like the community.”

Though the Biden campaign language does not commit to creating a new clemency infrastructure, the criminal justice reform recommendations from the Biden-Sanders Unity Task Force expressly proposes doing so:

Clemency Board: To avoid possible institutional bias and ensure people have a fair and independent evaluation, establish an independent clemency board, composed and staffed by people with diverse backgrounds.  Expand Obama-era criteria for proactive clemency initiative to address individuals serving excess sentences.

Long-time readers should not be surprised to hear me vocally advocate for a clemency board given that way back in 2010, I urged then-Prez Obama to structurally change the federal clemency system in this law review article titled "Turning Hope-and-Change Talk Into Clemency Action for Nonviolent Drug Offenders."  Here is a snippet from that piece:

President Obama ought to seriously consider creating some form of a "Clemency Commission" headed by a "clemency czar."...  Though a "Clemency Commission" headed by a "clemency czar" could be created and developed in any number of ways, ... [the] basic idea is ... to create a special expert body, headed by a special designated official, who is primarily tasked with helping federal officials (and perhaps also state officials) improve the functioning, transparency, and public respect for executive clemency.  Though the structure, staffing, and mandates of a Clemency Commission could take many forms, ideally it would include personnel with expertise about the nature of and reasons for occasional miscarriages of justice in the operation of modem criminal justice systems — persons who possess a deep understanding that, in the words of James Iredell, "an inflexible adherence to [severe criminal laws], in every instance, might frequently be the cause of very great injustice."

Many others have been talking for many years in many better ways about the idea of an DOJ-independent clemency board or commission, and I especially think of the tireless work of Rachel Barkow and Mark Osler in promoting an improved clemency infrastructure (see, e.g., here and here and here and here).  And I want to here promote all ideas about clemency reform because I now believe when the Biden Administration gives attention to this matter is much more important than exactly how. 

As I noted in this recent post, among the many problems with the modern exercise of the federal clemency power is the modern tendency for Presidents to entirely ignore this power until late in their terms.  As detailed in this DOJ data, Prez Trump at least thought to use his clemency power, and did so nearly a dozen times, during his first couple years in office; Barack Obama and George W. Bush and Bill Clinton could not be bothered to pick up the clemency pen for a single individual during their first two calendar years in office.  If clemency work and reform is not made a priority in the weeks and months ahead, I fear that real reforms are unlikely to get done at all. 

At this moment, I am drawn to the notion of starting with a "clemency czar," particularly because appointing one initial advisor should be easier and quicker than creating a full clemency board.  And the aforementioned Rachel Barkow and Mark Osler and Cynthia Roseberry are all great names surely ready to serve in this role on day one.  And while ruminating on this topic, other great names of great people long doing great work in the criminal justice space come to mind, like Michelle Alexander and David Singleton and Bryan Stevenson.  (Heck, add in folks like Weldon Angelos, Brittany Barnett, Beth Curtis, Mark Holden, Shon Hopwood, Jessica Jackson and Amy Povah, and I guess it is not too hard to quickly envision a "Dream Team" for a badly-needed clemency board.) 

Some (of many) prior recent related posts on clemency reform:

Some prior related posts on CJUTF recommendations:

January 1, 2021 in Clemency and Pardons, Criminal justice in the Biden Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Chief Justice's "2020 Year-End Report on the Federal Judiciary" provides pandemic perspectives (and pictures)

The Chief Justice of the United States always closes out a calendar year by releasing a year-end report on the federal judiciary, and nobody will be surprised to hear that the 2020 version of this report from Chief Justice John Roberts is focused on how the judiciary has responded, past and present, to pandemics.  The full 2020 year-end report can be found at this link, and it is worth checking out in full (in part for the pictures showing outdoor court activities in 1918 and 2020).  Here are a few passages that capture the report's substantive spirit:

[J]udges who serve on the Judicial Conference of the United States and its committees — in particular, the Committee on Rules of Practice and Procedure — sprang into action to make possible video and audio conferencing in certain criminal proceedings, with help from Congress through authorization in the CARES Act.  By April, judges around the country were guiding critical court functions from their home offices — or their kitchen tables.

Hearings of all sorts went virtual. Judges quickly (or at least eventually) learned to use a wide range of available audio and video conferencing tools....  Courts have used every available avenue to prepare for resumption of jury trials, the bedrock of fairness in our system of justice.  Judges and court staff have reconfigured spaces in courtrooms around the country.  Many courts have repurposed their largest courtrooms for physical distancing and reconfigured jury boxes to extend into public gallery areas....

All this is a credit to judges and court staff, but also to the citizens who serve as jurors. Judges from around the country report that, where jury trials have resumed, responses to jury summonses have met or exceeded their high hopes for the public’s willingness to participate in the legal system during these very challenging times....  None of this would be achievable without unsung heroes in the judicial branch and throughout government.

Because I had the honor of working within the federal judiciary for a couple of years way back when, and especially because I have an inkling for how challenging judicial work can be even under the very best of circumstances, I am keenly appreciative of all the work being done by federal and state courts nationwide.  It is thus nice to see the Chief Justice conclude his substantive remarks by saying that he is "privileged and honored to thank all of the judges, court staff, and other judicial branch personnel throughout the Nation for their outstanding service."  It is also nice to see the report includes an Appendix on the "Workload of the Courts" with these notable federal criminal justice caseload data:

In the regional courts of appeals, filings fell less than one percent from 48,486 to 48,190.... Criminal appeals fell three percent.

Cases with the United States as defendant grew 16 percent, primarily reflecting increases in social security cases and prisoner petitions....

Criminal defendant filings (including those for defendants transferred from other districts) dropped 20 percent to 73,879.  Defendants charged with immigration offenses, who accounted for 32 percent of total filings, were 25 percent fewer, largely in response to a 70 percent reduction in defendants accused of improper entry by an alien.  The southwestern border districts received 84 percent of 23,618 national immigration crime defendant filings.  Drug crime defendants, who accounted for 29 percent of total filings, fell 17 percent.  Defendants prosecuted for firearms and explosives offenses declined 13 percent.  Filings for defendants accused of fraud decreased 27 percent.  Reductions also occurred in filings related to traffic offenses, property offenses, sex offenses, general offenses, regulatory offenses, justice system offenses, and violent offenses.

A total of 126,970 persons were under post-conviction supervision on September 30, 2020, a reduction of two percent from the total one year earlier.  Of that number, 112,849 persons were serving terms of supervised release after leaving correctional institutions, a decrease of less than one percent.  Cases activated in the pretrial services system, including pretrial diversion cases, decreased 26 percent to 80,603.

January 1, 2021 in Data on sentencing, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing | Permalink | Comments (0)

December 31, 2020

A bloggy review of the sentencing year that was 2020

I always enjoy "year in review" pieces, even in years like 2020 that many folks may quite rightly be quite eager to forget.  So I figured I might as well "celebrate" the end of a rough year with a "bloggy" accounting of 2020 based on an all-too-quick review of some blog posts from the past year.  This accounting is not meant to be representative or even all that reflective of the year that was, it is just a list of a few post titles catching my eye for each month as I went though my 2020 archives:

From January 2020

From February 2020

From March 2020

From April 2020

From May 2020

From June 2020

From July 2020

From August 2020

From September 2020

From October 2020

From November 2020

From December 2020

December 31, 2020 in On blogging, Recap posts | Permalink | Comments (0)

Federal prison population closes out 2020 at new modern low of 152,184 according to BOP

Screenshot 2020-12-31 at 9.56.12 AMA helpful reader recently reminded me that the last federal prison population headcount from the Bureau of Prisons in 2019 — specifically from December 26, 2019 — reported "175,858 Total Federal Inmates."  That number was itself a pretty notable decarceration achievement for the federal system: just six years earlier, in 2013, the federal prison population clocked in at around 220,000 total inmates according to the BOP.

I am focused on the last federal prison population headcount from last year because the Bureau of Prisons this morning reported at this webpage the "Total Federal Inmates" count at the very end of 2020.  Remarkably, this remarkable year has brought a decline of over 23,500 inmates, as the total now stands at 152,184

The COVID pandemic, of course, accounts in various ways for these 2020 decarceral developments.  It is hard to unpack just how much this year's decline can be attributed to a lot more persons being moved out of federal prisons or a lot fewer people being moved into federal prison.  (As noted in this post, the US Sentencing Commission released some early COVID-era sentencing data showing that the number of federal sentences imposed between April and June 2020 dropped about 40% from the usual rate.)  Interestingly, after the pace of declines in the federal prison population seemed to slow considerably in the late summer and fall, there has now been a 2000-person decline in the BOP population since Thanksgiving.  These data make me a bit more hopeful that we could end up below 150,000 total federal inmates during the first few months of 2021.

A few of many prior related posts:

December 31, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3)

December 30, 2020

Still more great new Politico Magazine coverage now on "Justice Reform: Reentry"

Earlier this year I noted in posts here and here that the Politico Magazine had produced a terrific collection of original articles on criminal justice reform issues under the headings "Justice Reform: The Decarceration Issue" and "Justice Reform: Prison Conditions."   Those article are still collected at this link, but they are now topped by another great new set of pieces under the heading "Justice Reform: Reentry."  Here are the great-looking new pieces under this heading with their full headlines:

How Thousands of American Laws Keep People ‘Imprisoned’ Long After They’re Released: Across the country, people with felony convictions face a daunting web of small obstacles to rebuilding normal lives. What will it take to fix?

5 New Policy Ideas for Fixing Life After Prison: Ex-prisoners can face a whole second sentence when they try to reenter society. Business, governments and nonprofits have ideas for how to make it easier.

A Journalist Who Spent Time Behind Bars Dishes on How He Rebuilt His Life: A revealing Q&A conversation about life after prison — by a journalist still serving time at Sullivan Correctional Facility.

Prior related posts:

December 30, 2020 in Collateral consequences, Reentry and community supervision | Permalink | Comments (0)

Two notable end-of-year state supreme court rulings for criminal defendants on sentencing matters

This week has brought two notable new state Supreme Court rulings from the coasts on sentencing issues.  Here are press reports and parts of the starts of the opinions:

From the Boston Globe, "SJC: Judges can grant probation in some 'three strikes' cases"

From the start of the ruling in Massachusetts v. Montarvo, No. SJC-12905 (Mass. Dec 29, 2020):

Colloquially referred to as the "three strikes" law, the habitual offender statute, G. L. c. 279, § 25, enhances the penalty for a defendant who, after two prior convictions resulting in State or Federal prison sentences of three or more years, receives a third felony conviction.  This case requires us to determine whether § 25 (a) of the law allows sentencing judges to impose probation on defendants who fall within its ambit.  We conclude that it does.

From the Los Angeles Times, "Sex offenders can qualify for early parole, California Supreme Court rules"

From the start of the ruling in In re Gadlin, No. S254599 (Cal. Dec. 28, 2020):

In November 2016, the California electorate approved Proposition 57, the Public Safety and Rehabilitation Act of 2016.  The initiative amended the California Constitution to provide, in relevant part, that “[a]ny person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense.” (Cal. Const., art. I, § 32, subd. (a)(1) (article I, section 32(a)(1)).)  The initiative also directed the Department of Corrections and Rehabilitation (the Department) to “adopt regulations in furtherance of these provisions” and instructed the Secretary of the Department to “certify that these regulations protect and enhance public safety.” (Art. I, § 32, subd. (b) (article I, section 32(b)).)

The Department adopted regulations implementing a nonviolent offender parole consideration process.  Those regulations exclude from nonviolent offender parole consideration any inmate who “is convicted of a sexual offense that currently requires or will require registration as a sex offender under the Sex Offender Registration Act, codified in Sections 290 through 290.024 of the Penal Code.” (Cal. Code Regs., tit. 15, § 3491, subd. (b)(3) [governing determinately sentenced offenders]; see also id., § 3496, subd. (b) [governing indeterminately sentenced offenders].)

We granted review to address the validity of these provisions.  The Department asserts it is authorized by article I, section 32(b) to exclude from nonviolent offender parole consideration all inmates convicted of a registerable sex offense, regardless of whether that offense is defined by the regulations as a nonviolent felony and regardless of whether the inmate is currently incarcerated for that conviction.  Indeed, the Department’s regulations categorize inmates convicted of a registerable sex offense as “nonviolent offenders” unless, among other criteria, they are currently incarcerated for a violent felony listed in Penal Code section 667.5, subdivision (c). (Cal. Code Regs., §§ 3490, subd. (a), 3491, subds. (a), (b), 3495, subd. (a), 3496, subds. (a), (b).)  Nonetheless, the regulations entirely exclude from nonviolent offender parole consideration inmates previously convicted or currently convicted of any registerable sex offense.  We conclude that this categorical exclusion conflicts with the constitutional directive that inmates “convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration.” (Art. I, § 32(a)(1).)

December 30, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"The Treatment-Industrial Complex: Alternative Corrections, Private Prison Companies, and Criminal Justice Debt"

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

Out of the 6.7 million adults caught up in the criminal legal system, approximately 4.5 million are under correctional control outside of prisons and jails.  Within this hidden world of “alternative corrections,” people who are arrested, detained, imprisoned, put on probation or diversion, and even released are forced to pay a growing amount of money to various for-profit “criminal justice” actors.  Alternatives to incarceration are conditioned on fines, fees, and other forms of wealth extraction, causing a vicious cycle of poverty and indebtedness that is virtually impossible to escape. 

This Article explores and analyzes the little-researched area of criminal justice debt arising from alternative corrections: how private corrections companies profit from supervising those individuals released, paroled, sent to rehabilitation or diversion, placed on probation, or subject to forensic or civil commitment.  These under-examined forms of for-profit correctional supervision — the treatment-industrial complex — have turned supposedly progressive alternatives to incarceration into cash-register justice. 

December 30, 2020 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

December 29, 2020

Rounding up some notable recent criminal justice commentary

There are lots and lots of interesting criminal justice issues floating around these days, and these recent commentary catching my eye capture just a slice of what some folks are talking about:

From the Boston Globe, "What Trump’s pardons say about criminal justice"

From CNN, "How Joe Biden can root out racism in criminal justice"

From CNN Business, "Criminal justice reform can start with employers who give felons a second chance"

From The Hill, "Joe Biden should eliminate federal death row on his first day in office"

From The Hill, "Five ways Biden can jumpstart criminal justice reform immediately"

From Lawfare, "Are Trump’s Pardons a Blessing in Disguise?"

From USA Today, "COVID-19 compels America to rethink who we lock up in prison"

From Vice, "2020 Was the Year That Momentous Drug Reform Became Normal"

December 29, 2020 in Clemency and Pardons, Criminal justice in the Biden Administration, Death Penalty Reforms, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Highlighting DEPC call for proposals for new Marijuana Research Grants Program

6a00d8341bfae553ef026bdea68922200c-320wiI have highlighted in this prior post at my other blog the new research grant program from the Ohio State Drug Enforcement and Policy Center (DEPC).  DEPC's goal is to fund certain types of new work specifically in the marijuana research/policy space.  Here is the basic overview of the call for proposals:

The Drug Enforcement and Policy Center (DEPC) invites researchers from universities and independent research centers in the United States to submit proposals for funded research focused on implementation and policy impacts of marijuana legalization.  We are specifically interested in research addressing questions related to public health, criminal justice and public safety, as well as their various intersections.  In selection for funding, we are likely to prioritize shorter-term research projects that can help inform the work of lawmakers, regulators and advocates eager to promote evidence-based best practices and policies in future reforms efforts.

In general, grant requests should not exceed $50,000. However, projects exceeding this amount are still encouraged to apply as additional funding could be appropriated.  The deadline for first-round submissions is January 11, 2021; a second round of funding may be announced in February 2021 after the first-round awards are announced.

The full call for proposals can be found here, and this document provides these additional details on topics of interest in this grant program:

Topics may include, but are not limited to, the following:

  • Impacts on law enforcement including resource allocation, changes to existing arrest/charging practices, use of fines and fees for enforcement, and broader effects on crime and community relations.
  • Impacts on the criminal justice system including arrests/incarceration rates, outcomes achieved by changes in criminal penalties with cannabis legalization and/or decriminalization, impacts on the juvenile justice system.
  • How federal law currently impacts state-level marijuana reforms and practices across a range of areas (e.g., banking, employment, housing, medical practice and research, tax), and what federal reforms might most effectively and efficiently improve state practices.
  • Changes in rates of diagnosis for cannabis-related substance use disorders; need, availability and efficacy of treatment programs and other counseling services for problematic cannabis use.
  • Impacts and attitudes toward cannabis reform in specific neighborhoods/communities defined both by geography, social-economic status, and demographics.
  • Cost-benefit analyses of marijuana legalization/decriminalization policies and the various budgetary impacts resulting from reforms such as law enforcement savings versus treatment costs.

December 29, 2020 in Marijuana Legalization in the States | Permalink | Comments (0)

December 28, 2020

Noticing the many regular forgotten folk so far left behind in Prez Trump's clemency capers

This new New York Times piece, headlined "Outside Trump’s Inner Circle, Odds Are Long for Getting Clemency," provides a useful reminder of who is largely being forgotten amidst Prez Trump's clemency largesse.  Here are excerpts:

A vast majority of the people to whom he granted pardons or commutations had either a personal or political connection to the White House, and it appears that only seven were recommended by the government’s pardon attorney, according to a Harvard University professor who is tracking the process....

Many who have applied have little chance of clemency under any circumstances.  But those with sentences they contend are excessive and people who have shown remorse and turned their lives around in prison are hoping for mercy.

“We just are hopeful that the president will extend the pardons to people who aren’t rich, wealthy and well-connected — and there’s certainly thousands of them,” said Holly Harris, a Republican who has worked with Mr. Trump on reforms as head of Justice Action Network, a bipartisan criminal justice reform organization.  “There’s certainly still time for the president to use this extraordinary power to help people who are really struggling.”...

Ferrell D. Scott, 57, hopes the president reviews his petition, which shows he is serving life for marijuana trafficking, a sentence that even the federal prosecutor who tried his case said he did not deserve.

John R. Knock, 73, also serving life on a nonviolent marijuana charge, was already rejected by President Barack Obama but tried again with Mr. Trump. He has been in prison since 1996.  “It’s kind of like a competition instead of a legal procedure,” said Mr. Knock’s sister, Beth Curtis, who has advocated on behalf of her brother and other people serving life sentences for marijuana charges.  “It’s a crony system.”

December 28, 2020 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

"Algorithmic Decision-Making When Humans Disagree About Ends"

The title of this post is the title of this notable new paper authored by Kiel Brennan-Marquez and Vincent Chiao available via SSRN.  Here is its abstract:

Which interpretive tasks should be delegated to machines? This question has become a focal point of “tech governance” debates; one familiar answer is that machines are capable, in principle, of implementing tasks whose ends are uncontroversial, but machine delegation is inappropriate for tasks that elude human consensus.  After all, if even (human) experts cannot agree about the nature of a task, what hope is there for machines?

Here, we turn this position around.  In fact, when humans disagree about the nature of a task, that should be prima facie grounds for machine-delegation, not against it. The reason comes back to a fairness concern: affected parties should be able to predict the outcomes of particular cases.  Indeterminate decision-making environments — those in which human disagree about ends — are inherently unpredictable in the sense that, for any given case, the distribution of likely outcomes will depend on a specific decision-maker’s view of the relevant end. This injects an irreducible — and, we argue, intolerable — dynamic of randomization into the decision-making process from the perspective of non-repeat players.  To the extent machine decisions aggregate across disparate views of a task’s relevant ends, they promise improvement, as such, on this specific dimension of predictability; whatever the other virtues and drawbacks of machine decision-making, this gain should be recognized and factored into governance.

The essay has two halves. In the first, we elaborate the formal point, drawing a distinction between determinacy and certainty as epistemic properties and fashioning a taxonomy of decision-types.  In the second half, we bring the formal point alive through the case study of criminal sentencing.

December 28, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Reviewing remarkable recent criminal justice reforms in the state of Michigan

Ohio and Michigan have a long-standing rivalry on a number of fronts, but this local article highlights why I do not think any state could rival the state of up north with regard to its recent achievements in criminal justice reform.  This piece, headlined "Michigan lawmakers made big inroads on criminal justice reform, but advocates say there’s more to be done," merits a full read, and here is how it gets started:

In a legislative session dominated by disagreements over how best to handle the COVID-19 pandemic, there was one policy arena that united conservatives and progressives alike — criminal justice reform.  Over the course of two years, lawmakers were able to see through several criminal justice policy changes that have eluded previous legislatures for years, as well as several new recommendations made by a task force that had buy-in from experts, advocates, law enforcement, business groups, Gov. Gretchen Whitmer’s administration and Michigan Supreme Court Chief Justice Bridget Mary McCormack.

Those who worked closely on the reforms are quick to say the work isn’t over.  But soon, thousands of people with old criminal convictions on their records will be able to apply to seal those records from public view — and in a couple of years, some of those records will be expunged automatically if they don’t commit any new crimes.  Others who might otherwise have served a stint in county jail may not have to in the future due to legislation decriminalizing many traffic offenses and providing alternatives to jail time for low-level crimes.

“There will be effects that we don’t see right now...we will only see decades later,” outgoing House Speaker Lee Chatfield — who has credited his father’s work in jail ministry to his longstanding interest in making changes to the criminal justice system — said in his farewell speech on the House floor.  “We gave people a second chance,” he continued. “We gave people a fresh start, we gave people the opportunity to now be contributing members of society.”

Some of the major criminal justice legislation passed by both chambers with bipartisan support this session include:

  • Civil asset forfeiture bills requiring a person be convicted of a crime prior to permanent property seizure by law enforcement in most cases. The concept was introduced as a top priority in both legislative chambers in early 2019, and Whitmer signed the legislation in May of that year.

  • Legislation to raise the age of people automatically charged as adults in Michigan’s criminal justice system from 17 to 18. Michigan was one of the few remaining states where 17-year-olds are automatically tried, sentenced and incarcerated as adults if they’re charged with or convicted of a crime.  Whitmer signed the bills in October 2019, and they take effect in October 2021.

  • “Clean Slate” legislation designed to simplify and expand expungement options for people who have gone several years without committing another offense.  The package, signed by Whitmer in October, opens up the expungement process to low-level marijuana convictions and many traffic offenses, increases the overall number of expungements a person can receive and allows consolidations of multiple convictions that occurred in the same 24-hour time period.  Lawmakers included a two-year window for the state to set up a system for processing automatic expungement, and other bills in the package are written to take effect 180 days after they’re enacted.

  • Additional expungement-related bills passed in the legislature’s “lame duck” session, including adding first-time drunken-driving convictions and certain crimes committed by minors to the list of what could be wiped from criminal records.  Another bill sent to the governor’s desk this month directs $24 million from the Marihuana Registry Fund to the Michigan Set Aside Fund.

  • A House package redefining the term “good moral character” in state law to remove barriers to obtaining many occupational licenses for people with a prior criminal conviction. Under existing law, any criminal conviction can be taken into consideration by a licensing board when determining a person’s fitness for a profession — under the bill package, only serious crimes that posed a threat to public safety or were directly related to the occupation in question could be taken into consideration.

  • House legislation reducing penalties for a number of low-level offenses from misdemeanors to civil infractions, including driving on a suspended license.  Other related bills would limit driver’s license suspensions to offenses related specifically to dangerous driving and eliminate mandatory sentencing for a variety of offenses.

  • Senate legislation expanding law enforcement discretion to issue citations for most misdemeanors in lieu of arrest and creating a presumption of a sentence other than jail for most misdemeanors and certain felonies.  Other bills would ensure summonses are used for most first-time failure to appear in court and reforms the state’s probation and parole policies, capping jail sanctions for technical probation violations and allowing more discretion to assess risks and needs.

  • A Senate bill lifting a ban on food assistance for people with more than one drug-related felony on their record.

December 28, 2020 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

December 27, 2020

"Getting Explicit About Implicit Bias"

The title of this post is the title of this effective extended discussion published in the latest issue of Judicatre. which understandibly give particular attention to research regarding criminal case processing.  The piece's preamble explains that, to "better understand the effect of implicit bias in the courtroom, Judge Bernice Donald of the United States Court of Appeals for the Sixth Circuit talked with Professors Jeffrey Rachlinski and Andrew Wistrich of Cornell Law School."  The whole discussion is interesting, and here are some excerpts:

Implicit bias can play a role at every stage of the process, from the first encounter a suspect has with the police through criminal sentencing.  Police might be more inclined to arrest Black suspects and prosecutors might be more apt to pursue cases against Black defendants.  Furthermore, judges might be given different information about Black defendants than white defendants. With disparities at every stage, the effect of implicit bias can snowball.

We do not mean to exonerate judges completely.  As we note below, some evidence suggests that they do impose disparate sentences by race, notwithstanding our research.  Also, judges are responsible for monitoring prosecutors, police, probation officers, and others who might themselves be expressing implicit bias....

There is plenty of evidence that judges are being influenced by litigant race and gender beyond just the experimental studies we have conducted with hypothetical questions.  As an example, studies show that Black defendants receive longer sentences and female defendants receive shorter sentences.  These results have persisted for decades.  Of course, sentencing data can be noisy in the sense that others — probation officers, prosecutors, etc. — are involved in setting the stage for judges’ decisions.  These results, however, dovetail with our experiments in which such factors are controlled....

Many judges are alert to the danger of bias in the courtroom and work to neutralize it.  Some types of implicit bias, however, such as those based on age, skin tone, height, weight, citizenship, etc., also have an influence on judges.  We worry that even judges who are sensitive to racial inequity might overlook some of these other sources of unfairness.

Of course, the suspicion that judges are influenced by race or gender bias is profoundly disillusioning and dispiriting for a society that rightly demands equality in the courtroom.  Disparities in the administration of justice by a judge are particularly hurtful for racial or ethnic minorities and for women, perhaps particularly so when they turn to the courts for justice and redress for the effects of prejudice in the broader society.  Acknowledging the imperfections of the judiciary can be painful for judges — especially those subject to reselection — and can give rise to public criticism and even cynicism.

December 27, 2020 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)