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March 13, 2021

"From Damage Caps to Decarceration: Extending Tort Law Safeguards to Criminal Sentencing"

The title of this post is the title of this new article on SSRN authored by Andrea Roth and Jane Bambauer.  Here is its abstract:

The Supreme Court has recognized a civil defendant’s substantive due process right not to be subject to grossly excessive punitive damage awards.  Such awards — even if furthering legitimate state interests in retribution and deterrence — must not be grossly disproportionate to the compensatory damages reflecting the actual harm suffered by the plaintiffs.  More concretely, the “multiplier” — the ratio of punitive to compensatory damages — cannot be too high, with anything exceeding a 10:1 ratio deemed presumptively excessive.  This Article is the first to argue that a similar test should guard against grossly excessive criminal punishments; indeed, it seems odd that large corporations committing civil wrongs enjoy greater protection against overpunishment than criminal defendants, given the devastating effects of mass incarceration, particularly on communities of color.

As we show, there are compelling constitutional, logical, and policy reasons to ensure that criminal punishments are not grossly disproportionate to the harm caused.  In turn, although criminal courts might find the task of estimating the harm caused by a crime unfamiliar, we show how this could be done through surveys measuring the prison time a would-be victim would be willing to endure to avoid the crime.  Scholars have used such error-preference surveys in other legal contexts, but not yet in determining proportionality of punishment.  We offer a survey example as proof of concept and fodder for future research, and we report initial results corroborating the intuition that some crimes routinely trigger sentences grossly disproportionate to harm caused.  Whether or not criminal courts impose due process limits on punishment, our arguments and findings can be wielded by litigants, judges, and policy advocates to argue for lower sentences in individual cases, as well as to push for critically overdue sentencing reform.

March 13, 2021 in Examples of "over-punishment", Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Are we soon going to start seeing notable judicial nominees from Prez Biden?

This past week was full of big accomplishements for the Biden Administration with the confirmation of Attorney General Merrick Garland and the passage of the big COVID relief bill.  And now, as we approach nearly two months into the new Administration, there is reason to expect we will start seeing Prez Biden announce some judicial nominations.  These recent press articles certainly are raising expections that nomination will be coming soon:

From Axios, "White House primes 'pipeline' of federal judges"

From Buzzfeed News, "Biden Is Considering History-Making Nominees For The Federal Courts"

From CNN, "Get ready for a raft of Biden court nominees"

From Law.com, "Biden's First Judicial Nominees Will Test His Commitment to Diversifying Courts"

As these articles help highlight, many folks are focused on whether and how Prez Biden will focus on racial and gender diversity in his judicial nominees.  And in this post at The Volokh Conspiracy, Josh Blackman wonders: "How old will President Biden's judicial nominees be? Which side of 50 will the nominees be on?".

Regular readers know that I will be rooting for judicial nomines with experience as defense attorneys to balance a federal judiciary now loaded with a disproportionate number of former prosecutors.  Long-time readers may recall that I was, as detailed in this post from Feb 2016, an advocate for Judge Ketanji Brown Jackson to be nominated by Prez Obama for the 2016 SCOTUS opening in part because of her history as a public defender and her time as a member of the US Sentencing Commission.  I am excited to see Judge Jackson being discussed as Prez Biden's likely first pick for the DC Circuit, I am am hopeful she will be just one of many judicial nominees with a notably different personal and professional background.

And, as I have stressed recently, we need great diverse picks to fill long-empty seats on the US Sentencing Commission.

A few prior related posts:

March 13, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (0)

March 12, 2021

"Are Life Sentences a Merciful Alternative to the Death Penalty?"

The question in the title of this post is the headline of this new extended Mother Jones article.  Here are excerpts:

In the midst of [recent] victories in the fight against capital punishment, many advocates are attempting to address a different form of punishment, questioning how much more merciful life imprisonment is compared to the death penalty.

Life without parole has many of the same qualities that make the death penalty so abhorrent.  Capital punishment is riddled with racial disparities, junk science, and a legal system that routinely fails the marginalized. “Those same exact flaws exist across the whole system,” says Ashley Nellis, a senior research analyst at the advocacy organization The Sentencing Project.  Looked at logically, staying alive, albeit in prison, just has to be a better outcome than being executed.  But looked at more closely, is the lesser sentence really “better” than the harshest one?  “I would not call it a humane alternative to the death penalty,” Shari Silberstein, the executive director of the Equal Justice USA, a criminal justice nonprofit, tells me.  In fact, it’s a punishment both extreme and one that disproportionately affects the most marginalized people....

For Silberstein, anti-death penalty activists shouldn’t focus solely on life without parole as an alternative to the death penalty, but they should consider an entire reconfiguration of what justice means, and what it should look like.  After someone has been harmed, “there’s a need for healing, safety, accountability, and a sense of justice,” she explains. But it is unrealistic to expect “that a prison sentence can meet all of those needs.”  Clearly, they haven’t, she notes.  Harsh sentences persevere, even in places where the death penalty has already been abolished because of the underlying belief that, as Silverstein explains succinctly, “The only sense that justice has been done is if someone else suffers.”

Perhaps now — when execution as a punishment has never seemed so obscene and unacceptable — it’s the right time to reconsider all punishments.  What is the real difference between spending years behind bars only to die strapped to a gurney while correctional staff administer enough drugs to kill you, and languishing behind bars until so-called natural causes finally, mercifully, takes your life?  Are these differences sufficient to end one punishment and while still justifying another?  If the United States is on the cusp of abolishing the death penalty, perhaps it should take the next logical step and abolish another form of cruel and unusual punishment as well: life imprisonment.

March 12, 2021 in Death Penalty Reforms, Scope of Imprisonment | Permalink | Comments (4)

Wonderful new Federal Sentencing Reporter issue explores "Weinstein on Sentencing"

M_fsr.2021.33.3.coverI am so very pleased to report on the publication of the latest issue of the Federal Sentening Reporter.  This issue is titled "Weinstein on Sentencing" and it celebrates the many contributions to federal sentencing law, policy and practice by legendary EDNY Judge Jack Weinstein.

FSR was quite fortunate to get two of Judge Weinstein's former clerks, Carolin Guentert and Ryan Gerber, to organize this great new issue.  They did a wonderful job gathering an array of perspectives in an issue that includes a considerable number of original articles under the heading "Celebrating Judge Weinstein" as well as excerpts from Judge Weinstein's past opinions and articles under the heading "Weinstein In His Own Words." 

I highly encourage everyone to check out this full FSR issue, and here is a list of the original articles:

Guest Editors’ Observations: Judge Weinstein's Contributions to Sentencing Law by Carolin E. Guentert & Ryan H. Gerber

Weinstein on Sentencing by Kate Stith

Jack B. Weinstein Up Close by John Gleeson

Jack Weinstein: Reimagining the Role of the District Court Judge by Jessica A. Roth

Serving a Rehabilitative Goal: Assessing Judge Jack B. Weinstein’s Supervised Release Jurisprudence by Christine S. Scott-Hayward

A Judge’s Attempt at Sentencing Consistency After Booker: Judge Jack B. Weinstein’s Guidelines for Sentencing by Carolin E. Guentert & Ryan H. Gerber

Hanging Up the Robe by Thomas Ward Frampton

Sentencing with Love, Not Hate by Deirdre D. von Dornum

March 12, 2021 in Federal Sentencing Guidelines, Recommended reading, Who Sentences | Permalink | Comments (1)

March 11, 2021

Split Washington Supreme Court, relying on state constitution, forbids mandatory LWOP sentences for those under 21

Today, via a 5-4 ruling in In re Pers. Restraint of Monschke and Bartholomew, No. 96772-5 (Wash. Mar. 11, 2021) (available here), the Supreme Court of Washington extended the reach of the US Supreme Court's Miller ruling by declaring mandatory LWOP for those under 21 to be unconstitutional (pursuant to Washington's state constitutional prohibition of "cruel punishment").  Here is how the majority opinion starts and ends:

Dwayne Earl Bartholomew and Kurtis William Monschke were each convicted of aggravated first degree murder and sentenced to life in prison without possibility of parole — a mandatory, nondiscretionary sentence under Washington’s aggravated murder statute.  RCW 10.95.030.  Bartholomew was 20 years old; Monschke was 19.  Many years after their convictions, each filed a personal restraint petition (PRP) asking us to consider whether article I, section 14 of our state constitution or the Eighth Amendment to the United States Constitution permits a mandatory life without parole (LWOP) sentence for youthful defendants like themselves.  Specifically, they ask us to decide whether the constitutional requirement that judges exercise discretion at sentencing, which forbids such mandatory LWOP sentences for those under 18, also forbids those sentences for 18- to 21-year-old defendants.

Modern social science, our precedent, and a long history of arbitrary line drawing have all shown that no clear line exists between childhood and adulthood.  For some purposes, we defer to the legislature’s decisions as to who constitutes an “adult.”  But when it comes to mandatory LWOP sentences, Miller’s constitutional guarantee of an individualized sentence — one that considers the mitigating qualities of youth — must apply to defendants at least as old as these defendants were at the time of their crimes.  Miller v. United States, 567 U.S. 460, 469-80, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012).  Accordingly, we grant both PRPs and order that Bartholomew and Monschke each receive a new sentencing hearing....

There is no meaningful cognitive difference between 17-year-olds and many 18-year-olds.  When it comes to Miller’s prohibition on mandatory LWOP sentences, there is no constitutional difference either.  Just as courts must exercise discretion before sentencing a 17-year-old to die in prison, so must they exercise the same discretion when sentencing an 18-, 19-, or 20-year-old.  We grant Monschke’s and Bartholomew’s PRPs and vacate their mandatory LWOP sentences.  We remand each case for a new sentencing hearing at which the trial court must consider whether each defendant was subject to the mitigating qualities of youth.

The dissent authored by Justice Owens begins this way:

Kurtis Monschke and Dwayne Bartholomew committed brutal murders decades ago.  At the time, they were 19 and 20 years old, respectively.  They were not children. Under Washington law, when an individual turns 18 years old, they are empowered to make a range of life-altering decisions: suddenly, they can form contracts, drop out of school, get married, work a hazardous job, and serve in the military.  But at this same moment, they also obtain the full responsibilities and consequences of adulthood, and the court will no longer intervene on their behalf on the basis of age.  Nonetheless, the lead opinion holds today that we must create an exception in treating these individuals as adults when they commit aggravated murder between the ages of 18 and 20.  Mandatory life without parole (LWOP) sentences are now prohibited for this age category.  The lead opinion crafts this new rule by filtering our state constitution’s “cruel punishment” prohibition through a handful of scientific studies and circumvents the reality that no legislatures or courts in the other 49 states have ever recognized such a protection.  WASH. CONST. art. I, § 14.  As the final arbiters of what “cruel” means under article I, section 14 of our state constitution, this court must use a disciplined and evenhanded approach in evaluating its meaning. If we do not, we risk transforming our protection against “cruelty” into whatever is supported by a smattering of studies and five concurring members of this court.

At the heart of this case is the important question of when a person should be held fully accountable as an adult.  This is a question that requires a meticulous examination of a number of scientific, moral, ethical, and practical considerations. Our court is not a legislature, and it is insufficiently equipped to decide this issue on selectively presented evidence put forth by limited parties on a constrained schedule.  The lead opinion broadly seeks to protect against the “unacceptable risk that youthful defendants without fully developed brains will receive a cruel LWOP sentence.”  Lead opinion at 29. But I struggle to identify at what precise age we will stop redrawing these lines based on this brain development evidence, be it 20, 22, 25, or even older.  I further caution that today’s decision may eventually compel us to revisit and invalidate a staggering number of LWOP and Sentencing Reform Act of 1981 (SRA), ch. 9.94A RCW, sentences for this growing group under our recent decisions in State v. Bassett and State v. Houston-Sconiers.  This task would tremendously burden the State’s resources and the victims’ families. I respectfully dissent.

March 11, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

"How Compassionate? Political Appointments and District Court Judge Responses to Compassionate Release during COVID-19"

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

This paper seeks to examine how judges are deciding compassionate-release motions in the wake of the COVID-19 pandemic, which has proven particularly deadly inside the nation’s prisons.  I explore how judges appointed by Republicans and Democrats have ruled in more than 4,000 federal compassionate-release cases since March 2020, finding that judges appointed by Democrats are granting compassionate release at far higher rates than their Republican counterparts, with Trump judges granting among the fewest requests. 

The First Step Act of 2018 gave incarcerated individuals the right to file a motion for early release in court in light of “extraordinary and compelling” circumstances, and requests for release have skyrocketed since the outbreak of the virus.  The unique conditions of the pandemic, high levels of virus transmission in prisons, and the highly discretionary nature of the compassionate-release statute together offer a natural experiment for considering how judicial ideology impacts real lives.  The results of this analysis underscore the importance of the fight over control of the judiciary going forward.

March 11, 2021 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Second Circuit panel finds all sorts of constitutional problems with Connecticut's conditions of confinement for former death row inmate

A helpful reader altered me to a notable quirky Second Circuit panel ruling today on prison conditions in Reynolds v. Quiros, No. 19-2858-pr (2d Cir. Mar. 11, 2021) (available here). The case is quirky because it arises from Connecticut's decision to create special statutory conditions of imprisonment when it repealed its death penalty.  The ruling is notable because the defendant, a former member of death row, has succeeded on a number of challenges to these conditions in his federal litigation, and now the Second Circuit panel comes to "hold as follows:

(1) The District Court erred by deciding disputed issues of material fact in granting summary judgment in favor of Reynolds on his claims under the Eighth Amendment, and the Due Process Clause of the Fourteenth Amendment;

(2) The District Court correctly concluded that, with respect to Reynolds, Conn. Gen. Stat. § 18-10b is an unconstitutional bill of attainder; and

(3) Reynolds’ unreviewable classification score of Risk Level 5 violates his rights under the Equal Protection Clause of the Fourteenth Amendment because the difference in his treatment compared to that of other similarly-situated inmates lacks a rational basis."

March 11, 2021 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

US House subcommittee holds hearing on "Controlled Substances: Federal Policies and Enforcement"

As detailed at this link, the US House Committee on the Judiciary Subcommittee on Crime, Terrorism, and Homeland Security held a hearing this morning on "Controlled Substances: Federal Policies and Enforcement."  Here were the witnesses:

Nicole M. Austin-Hillery Esq., Executive Director, US Program, Human Rights Watch

Dr. Howard Henderson Ph.D., Founding Director, Center for Justice Research, Texas Southern University Nonresident Senior Fellow in Governance, The Brookings Institution

Derek Maltz, Former Special Agent in Charge, DEA's Special Operations Division

Dr. Katharine Neill Harris, Alfred C. Glassell, III, Fellow in Drug Policy, Rice University's Baker Institute for Public Policy

House Judiciary Committee Chairman Jerrold Nadler released this statement in conjunction with the hearing, and here is an excerpt:

"This Congress, we need to continue our committee’s work to take steps to 'right the wrongs' from the failed drug war.  As we have all seen, that failure has been both exorbitantly expensive and frequently counterproductive, producing staggering incarceration rates for drug offenses and immeasurable harm to families, especially those coming from low-income or minority communities.

"As our witnesses will highlight today, too many people are serving unjustly lengthy prison sentences as a result of laws that were enacted decades ago imposing mandatory minimum sentences.  That approach was wrong then — and it continues to be wrong — disparately impacting minority communities, while fueling mass incarceration.

"Mandatory minimum penalties are unwise, unjust, and unfair.  The status quo is unacceptable and we need to take a hard look at reforming these penalties....

"For far too long, we have treated marijuana as a criminal justice problem instead of as a matter of personal choice and public health. Whatever one’s views are on the use of marijuana for recreational or medicinal use, the use of arrests, prosecution, and incarceration at the federal level has been both costly and biased.

"I have long believed that the criminalization of marijuana has been a mistake, and the racially disparate enforcement of marijuana laws has only compounded this mistake, with serious consequences, particularly for minority communities.

"Thousands of individuals — overwhelmingly people of color — have been subjected by the federal government, to unjust and lengthy prison sentences for marijuana offenses. This needs to stop.

"That is why I will be reintroducing the MORE Act to remove marijuana from the Controlled Substances Act and to provide restorative justice for communities that have been disproportionally impacted by the War on Drugs.

"We also need to learn lessons from programs and alternatives that have been successfully pursued at the state and local level, not just with marijuana but with other drugs as well.  For instance, Law Enforcement Assisted Diversion Programs, known as LEAD, allow law enforcement to divert appropriate arrestees from criminal court, and instead to provide treatment and other services that address addiction and reduce recidivism.

"Developed and initially implemented in Seattle, the LEAD approach is now being used with success in other areas.  We should support these efforts, as well as other innovative approaches at the local level, such as medication assisted treatment, supervised injection facilities, expanding the availability of overdose reversal drugs, and better education of doctors and the public about the proper prescription and use of opioids as pain medication.

"We will not be able to arrest and incarcerate our way out of a drug abuse crisis that has many causes.  Instead, we must support the development and implementation of a variety of solutions as we consider our contribution to addressing this crisis. Additional reform is long overdue...."

March 11, 2021 in Drug Offense Sentencing, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

Bureau of Justice Statistics releases new report on "Impact of COVID-19 on the Local Jail Population, January-June 2020"

The Bureau of Justice Statistics yesterday released this notable new report titled "Impact of COVID-19 on the Local Jail Population, January-June 2020."  Here is part of the start of the document and its listed "Highlights."

Local jails in the United States experienced a large decline (down 185,400 inmates) in their inmate populations from June 30, 2019 to June 30, 2020, which can be attributed mainly to the COVID-19 pandemic (figure 1 and table 1). The inmate population confined in local jails was 549,100 at the end of June 2020, down from 734,500 at the end of June 2019. The midyear 2020 inmate population was the lowest since 1996, when 518,500 inmates were confined in local jails (not shown in tables).

The impact of COVID-19 on local jails began in March 2020, with a drop of 18% in the inmate population between the end of February and the end of March, followed by an 11% drop by the end of April. By the last weekday in April 2020, the number of jail inmates dropped to a low of 519,500. By the end of May 2020, the population increased about 3% and was up another 2% by the end of June 2020.

The decline in the inmate population since midyear 2019 resulted from both a reduction in admissions to jails and expedited releases in response to the COVID-19 pandemic from March to June 2020.

Local jails reported 8.7 million admissions during the 12-month period ending June 30, 2020, which was about 16% lower than the 10.3 million admissions during the 12-month period ending June 30, 2019 (appendix table 10)....

This special report is the first of two that describe the impact of COVID-19 on the local jail population. BJS will release a final report that will include results from July to December 2020.

HIGHLIGHTS:

  • From March to June 2020, about 208,500 inmates received expedited release in response to COVID-19.

  • During the pandemic, jail facilities became less crowded, as indicated by the decrease in occupied bed space from 81% at midyear 2019 to 60% at midyear 2020.

  • The number of inmates held for a misdemeanor declined about 45% since midyear 2019, outpacing the decline in the number of inmates held for a felony (down 18%).

  • The percentage of inmates held for a felony increased from 70% at midyear 2019 to 77% at midyear 2020.

  • From March to June 2020, jails conducted 215,360 inmate COVID-19 tests. More than 11% of these tests were positive.

  • Jails in counties with confirmed residential COVID-19 infection rates of 1% or more tested nearly 21% of persons admitted to their jails from March to June 2020. 

  • From March to June 2020, nearly 5% (10,850) of all local jail staff (233,220) tested positive for COVID-19.

March 11, 2021 in Data on sentencing, Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

March 10, 2021

"The Burdens of the Excessive Fines Clause"

The title of this post is the title of this new article now available via SSRN authored by Beth Colgan. Here is its abstract:

A key component is missing from the Eighth Amendment’s excessive fines clause doctrine: who has the burden of proof?  This question — which has been essentially ignored by both federal and state courts — is not just a second order problem.  Rather, the assignment of burdens of proof is essential to the clause’s enforcement, making it harder — or easier — for the government to abuse the revenue generating capacity of economic sanctions in ways that can entrench poverty, particularly in heavily-policed communities of color.

This Article takes on this question by first sorting through a morass within the U.S. Supreme Court’s due process doctrine as it relates to assessing the fundamental fairness of procedural practices, including the assignment of burdens of proof.  After offering a framework that reconciles the doctrine, it applies that frame to the excessive fines context by breaking the “burden of proof” into four component parts: the burden to raise the excessive fines claim, the burden of producing evidence relevant to that claim, the burden of persuading the decisionmaker as to the result, and the standard of proof to be employed in that determination.  While the government and private interests at stake remain constant across these various burdens, disentangling them allows a more exacting inquiry into the risk of an erroneous imposition of excessive fines.  In particular, it allows examination of how lawmakers have crafted related processes and structures—such as the refusal to provide counsel or the vast array of collateral consequences attached to both non-payment and conviction — that make it more likely that abuses of power will occur absent the check on authority burdens of proof can help provide.

March 10, 2021 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

With Merrick Garland now finally confirmed as the next US Attorney General, might another DOJ charging and sentencing memo be soon forthcoming?

As reported in this CNBC piece, the US Senate "on Wednesday voted to confirm Merrick Garland as attorney general, placing the longtime federal appeals court judge and one-time Supreme Court pick at the helm of an agency central to President Joe Biden’s domestic policy agenda. The vote was 70-30." Here is more:

Garland takes over as the head of the Department of Justices as the sprawling agency continues to investigate the Jan. 6 riot at the U.S. Capitol, one of the largest probes in its history. Garland has called the inquiry his No. 1 priority.

The Justice Department will also be crucial in enacting Biden’s sweeping plans for civil rights enforcement and criminal justice reform. The department is likely to make important decisions in the coming years concerning regulation of the nation’s largest technology companies, which some lawmakers are pushing to break up.

Garland’s pledged to defend the independence of the Justice Department during hearings before the judiciary committee last month. Biden has made restoring the traditional distance between the department and political officials at the White House a top priority....

Before Biden tapped Garland to be attorney general, the centrist lawyer was nominated by former President Barack Obama to a seat on the Supreme Court in 2016 after the death of Justice Antonin Scalia. Republicans at the time controlled the Senate, and refused to hold a hearing on his nomination.

Several other top Justice Department nominees are still being considered by the Senate, including Vanita Gupta, Kristen Clarke and Lisa Monaco.  Gupta and Monaco faced questions from senators on Tuesday. Gupta, who led the Justice Department’s civil rights division under Obama, is nominated to become associate attorney general.  Clarke is nominated to be the head of the civil rights division. Biden nominated Monaco to be deputy attorney general.

As the title of this post ponders, I cannot help but wonder if a new confirmed Attorney General might soon result in a new permanent Justice Department charging and sentencing memorandum.  As noted in this post six weeks ago, less than 10 days after Prez Biden took office, acting Attorney General Monty Wilkinson rescinded the May 2017 charging/sentencing memo put in place by then-Attorney General Jeff Sessions.   This one-page Wilkinson memo said it was an "interim measure before Senate-confirmed leadership is in place at the Department."  Though we still await confirmation of the rest of DOJ leadership, Garland's confirmation brings us much closer to having permanent new DOJ leadership in place for possibly redirecting DOJ sentencing policies and practices.

Some (of many) prior related posts on DOJ charging and sentencing guidance:

March 10, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (0)

"The Intersection of Race and Algorithmic Tools in the Criminal Legal System"

The title of this post is the title of this new article authored by Vincent Southerland now available via SSRN. H ere is its abstract:

A growing portion of the American public — including policymakers, advocates, and institutional stakeholders — have generally come to accept the fact that racism endemic to the United States infects every stage of the criminal legal system.  Acceptance of that fact has led to efforts to address and remedy pervasive and readily observable systemic bias. Chief among those efforts is a turn toward technology — specifically algorithmic decision-making and actuarial tools.  Many have welcomed the embrace of technology, confident that technological tools can solve a problem — race-based inequity — that has bedeviled humans for generations.

This article engages that embrace by probing the adoption of technological tools at various sites throughout the criminal legal system and exploring their efficacy as a remedy to racial inequality.  Then, by applying a racial justice lens, this article develops and offers a set of prescriptions designed to address the design, implementation, and oversight of algorithmic tools in spaces where the promise offered by technological tools has not been met.  Adherence to that lens may draw us closer to what this article terms a pragmatic abolitionist ethos regarding the use of technological tools in the criminal legal system.  Such an ethos does not mean the immediate absence of a criminal legal system altogether.  It instead means a criminal system that ultimately operates in ways dramatically different from the current regime by divesting from incarceration and investing in community well-being, human welfare, and rehabilitation.

March 10, 2021 in Procedure and Proof at Sentencing, Race, Class, and Gender, Technocorrections | Permalink | Comments (0)

March 9, 2021

Flagging federal criminal justice reform as great bipartisan legislative opportunity

Van Jones and Louis Reed have this great new CNN piece under the headlie "The one issue that could bring Democrats and Republicans together."  Here are excerpts:

Political commentators continue to wonder whether President Joe Biden can deliver on his promise of national unity and healing.  While his prospects for doing so seem increasingly limited, there is one area that offers some hope: criminal justice reform....

Biden has a unique opportunity to build on his predecessors' progress. To start, he can:

1. Increase funding for the First Step Act. Biden can build on the existing bipartisan consensus by allocating more money to the kinds of educational and job training programs prescribed in the First Step Act. One of the core features of this legislation is "earned time credits," which lets people shorten the length of their sentences by completing various programs.

Demand is high. There is a waiting list of more than 11,000 people even for basic literacy programs. Access to these kinds of programs has been diminished even further during the Covid-19 pandemic. However, it's worth the investment because increasing educational and job training, treatment, and compassionate release programs can significantly reduce the federal prison population and recidivism rates.

2. Fix federal supervision systems.  When people are released from federal custody, many enter an incredibly harsh supervised release system.  Due to laws requiring mandatory supervision sentences and mandatory prison time for noncriminal "violations," many people get saddled with years or even decades of invasive monitoring and additional time behind bars for things like missing a meeting.

Biden could push for smart bipartisan reforms like capping the amount of time people spend under supervision, preventing people from returning to prison for noncriminal violations and allowing people to get off supervision early based on good behavior and participation in educational programs.  Reforms like these are already winning favor in red states (like Louisiana), purple states (like Michigan) and blue states (like California).

3. Back existing bipartisan legislative efforts. There are some measures that already have support from both sides of the aisle. None are perfect; the legislative process would likely strengthen many of them.  But if Biden is looking for common ground issues, these measures offer him a great starting point:

  • Safer Detention Act....
  • Smarter Pretrial Detention for Drug Charges Act....
  • The Driving for Opportunity Act....
  • Reintroduce the Smarter Sentencing Act....
  • Reintroduce the Community First Pretrial Reform and Jail Decarceration Act.

March 9, 2021 in Criminal justice in the Biden Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Highlighting why those concerned about mass incarceration need to be concerned with murder spike

Adam Gelb has this notable new USA Today opinion piece under the headline "America's surge in violence: Why we must reduce violent crime for prison reform to work: We simply won’t shed our status as the planet’s leading incarcerator without reducing violence." Here are excerpts:

Amid the pandemic and protests last year, violent crime spiked. Homicides in 34 large cities rose 30%, a single-year jump that is unprecedented in modern American history.

In those cities alone, there were 1,268 more murders in 2020 than in 2019. On top of the tragic loss of life, the burst of violence represents a major setback for the movement to reduce incarceration and achieve racial justice.

There has been significant progress on these fronts: the overall rate of serious crime is less than half what it was in the early 1990s, and a wave of state and federal reforms has cut the level of punishment per crime, especially for minor offenses.

As a result, the number of people locked up at the end of 2020 had fallen to 1.8 million, a sizable dip from the 2.3 million held at the peak of U.S. incarceration in 2008. But a large chunk of that drop came from reductions in arrests and other COVID-related adjustments, which may prove temporary. Jail populations already are creeping back to prepandemic levels.

The upshot is that if we hope to further shrink the number of Americans behind bars and reduce racial disparities, we can’t rely on cutting punishment alone.  We must also curb the commission of crime in the first place, particularly the serious, violent crime that victimizes so many young Black men and lands them in prison....

A nonpartisan Council on Criminal Justice task force outlined a plan for strategic federal assistance to the 40 cities hardest hit by homicide.  By one estimate, a $900-million targeted federal investment in those cities over eight years could cut murders in half, and save many times that much in social and taxpayer costs.  President Joe Biden endorsed this plan during his campaign.

Perhaps the 2020 homicide spike is a blip, a fleeting artifact of the toxic mix of pandemic stress, economic hardship and protest outrage.  Once the COVID-19 lockdowns and social distancing mandates end, the face-to-face outreach that characterizes the most successful anti-violence programs can resume, and the bloodshed hopefully will ebb.

But even before last year’s startling rise in crime, too many Americans were becoming victims, and too many were facing long years behind bars. Until we change that, the death toll will mount and the pace of progress toward a more racially equitable justice system will be glacially slow.

March 9, 2021 in National and State Crime Data, Scope of Imprisonment | Permalink | Comments (0)

"Procedure's Racism"

The title of this post is the title of this notable new article authored by Russell Gold now available via SSRN. Here is its abstract:

Criminal procedure is systemically racist and classist.  This Article argues that comparing criminal procedure to civil procedure on a broad scale provides new and valuable insight into the systemic racism and classism woven into the fabric of U.S. law.  Criminal defendants are disproportionately poor people of color, while civil defendants are often wealthy corporations whose executives are largely White; those wealthy civil defendants play an outsized role in developing civil procedure.  One might expect to see greater procedural protections before criminal defendants are deprived of their liberty than for civil defendants before they are deprived of their money.  But the reality cuts decidedly the other way.  Instead of calibrating protections for defendants to the importance of the interest at stake, disparities between the civil and criminal systems instead track differences in race and class between defendants in the two systems.  Criminal defendants, for instance, can be locked in cages for two days on a mere accusation by police before a magistrate considers the validity of that deprivation.  Civil defendants, by contrast, cannot be deprived of their property without first having a judge hear their arguments. Criminal defendants sometimes do not learn about the government’s evidence until the eve of or during trial — a trial that comes in scant few cases.  Civil defendants would never be forced into such a trial by surprise but rather have numerous tools of formal discovery to compel evidence from the opposing party throughout the pretrial period.

The primary focus of this Article is demonstrating that procedure disparities between civil and criminal systems largely track race and class.  But it also briefly compares changes in available punishment.  In criminal law, pathological politics largely create a one-way upward ratchet whereby criminal law continues to afford prosecutors ever-greater power and discretion to pursue ever greater sentences.  In tort law, by contrast, most state legislatures have limited plaintiff’s lawyers’ discretion through reforms such as caps on noneconomic damages or limits on punitive damages.  So too is the Supreme Court’s role in regulating substantive fairness in these two systems widely disparate.  In criminal law, the Supreme Court upheld a life sentence for a defendant convicted of $88 check theft.  By contrast, the Supreme Court struck down a $2 million punitive damages award against a multinational corporate defendant as unfair.  This Article offers the big-picture analysis of how comparing civil and criminal systems in the U.S. reveals systemic racism and classism.

March 9, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Recommended reading | Permalink | Comments (0)

March 8, 2021

Curious spitting over COVID prison data as Sixth Circuit panel ultimately affirms rejection of compasionate release motion

I sometimes feel social media tends to encourage some folks (myself included) to pick relatively silly fights over relatively silly matters.  That tendency seems to have bled over to a Sixth Circuit panel: today it released an opinion on a compassionate release appeal with two judges picking a relatively silly fight over relatively serious matter. Specifically, in US v. Mathews, No. 20-1635 (6th Cir. Mar. 8, 2021) (available here), the panel unanimously concluded that the district jusge did not abuse his discretion in denying
compassionate release based on his consideration of the § 3553(a) factors.  But while harmonious on the result, two judges decided to pick at each other over COVID prison data.

Judge Moore wrote the main opinion, and she begns by setting a serious tone concerning the matters at issue in the case (footnotes with cites to data omitted): 

By the end of 2020, one in every five persons incarcerated in the United States had tested positive for COVID-19. At least 275,000 imprisoned persons across the country have been infected; more than 1,700 have died.  A court’s refusal to reduce an incarcerated person’s sentence could result in death.

Judge Readler was apparently put off by this discussion and other parts of the opinion by Judge Moore, as he authors a one-page concurrence that includes complaints like this:

In reaching that conclusion, however, the lead opinion covers ground that is neither necessary to the outcome nor joined by another member of the panel, making it dicta, and seemingly misplaced dicta at that.  One example is the opinion’s introductory paragraph, which frames the appeal by invoking prison-related data collected by the Marshall Project.  As neither that data nor the means for collecting it are part of the record in this case, and thus unmeasured by federal evidentiary standards, the data’s value is difficult to assess.

Undaunted, Judge Moore has a lengthy footnote pushing back at Judge Readler which starts this way:

In what can only be described as dicta about dicta, Judge Readler diminishes COVID-19’s rampage in our federal prisons and assails The Marshall Project’s integrity.  We should not treat lightly the experience of persons who are incarcerated in prisons that are plagued with a deadly virus; nor should we demean those who advocate for imprisoned persons.  Many compassionate-release motions implicate complex issues of law and policy that merit our attention.  Contemplation of these issues aids our future reviews of compassionate-release motions.

This not-quite-judicious sparring by these jurists ultimately makes no difference to the outcome of the case, and I cannot help but wonder what the imprisoned appellant thinks of it all.  But I think that this particular outcome should not eclipse the official BOP data showing that more than 3000 compassionate-release motions motions having been granted since the passage of the FIRST STEP Act.  Throughout the COVID pandemic, an average of roughtly 50 sentencing reductions have been granted each week, which reveals that a good number of judges have, fortunately, refused to "treat lightly the experience of persons who are incarcerated in prisons that are plagued with a deadly virus."

March 8, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Expanding Voting Rights to All Citizens in the Era of Mass Incarceration"

The title of this post is the title of this short new document from The Sentencing Project, which gets started this way:

In order to strengthen democracy and address significant racial disparities, states must pass reforms establishing universal voting for people impacted by the criminal legal system.

5.2 million people in the United States are currently denied access to the vote because of a felony conviction.  The number of people disenfranchised has grown, from 1.2 million in 1976, as a product of mass incarceration and supervision.  Of people denied the vote, one in four (1,240,000) are currently incarcerated.  While many states have expanded access to the vote for people who have completed their sentences, only DC has joined Maine, Vermont, and Puerto Rico by granting full voting rights to people in prison. In order to strengthen democracy and address significant racial disparities, states must pass reforms establishing universal voting for people impacted by the criminal legal system.

The United States maintains far greater restrictions on voting while in prison than any other democratic country in the world.  The Supreme Court of Canada has twice ruled in favor of protecting voting rights for people in prison, stating that the “denial of the right to vote on the basis of attributed moral unworthiness is inconsistent with the respect for the dignity of every person that lies at the heart of Canadian democracy.”  Five years after the fall of Apartheid, the Constitutional Court of South Africa ensured voting rights for people in prison.

March 8, 2021 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Stories highlight that the west is no longer so wild about the death penalty

These three newspaper pieces from three different western states strike a similar theme relating to the decline in political support for capital punishment:

"California has undergone a sea change on the death penalty" from the Los Angeles Times

"Poll: Nevadans divided over abolishing the death penalty, a shift from previous poll" from The Nevada Independent

"Bill to repeal death penalty in Wyoming advanced by legislative committee" from the Wyoming Tribune Eagle

Notably, as well detailed by the Death Penalty Information Center in this map of US executions, there have never actually been all that many executions west of Texas in the modern capital era. Indeed, Missouri alone has has more executions (90) than all states combined; leave out Arizona, and Ohio at 56 executions has had more than all those other weterns states combined. But, as also well detailed by this DPIC map of US death rows, a number of western states have sizeable death rows (with California's death row twice as big as any other states').

March 8, 2021 in Data on sentencing, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Prisons as first frontier of the welfare state in The Last Frontier state

The nickname of the state of Alaska is The Last Frontier, which inspired the title of this post about this local article headlined "Alaska now spends more on prisons than its university system, and the gap is widening."  Here are excerpts explaining what I mean by the post title (with my emphasis added):

Alaska is now spending more on prisons than its state university, a reversal of the state’s longtime practice, and the gap would widen under a draft budget being considered by the state legislature.

Since 2015, when adjusted for inflation, Alaska has cut by 22.4% the amount it spends on the operations of all state agencies combined.  The Alaska Department of Corrections is the only agency whose inflation-adjusted budget has grown during that period.

Sen. Click Bishop, R-Fairbanks, called the current situation “sad.”  Bishop is co-chairman of the Senate Finance Committee, which on Thursday held a hearing that questioned whether the Legislature and governor have reached the limit of budget cuts they can make without significant changes to state law.

Though state spending (not including the Permanent Fund Dividend) has declined by almost half from its peak in 2015, most reductions came early in that period.  The cuts of the past two years have been almost entirely erased by inflation and other annual cost increases....

The budgets for the University of Alaska and the state prison system illustrate the problems now faced by the Legislature and governor.  In 2019, the governor signed an agreement with the University of Alaska Board of Regents that called for three years of budget cuts.  Though the Alaska Legislature was not party to the agreement, it has followed it so far.

At the time, the university system received $327 million from the portion of the budget paid for with revenue from the Permanent Fund and taxes. In the budget under consideration now by the Legislature, the university is slated to receive just $257 million.

One month before signing the university agreement, Dunleavy signed a bill that rolled back prior prison reform legislation.  That prior legislation, known as Senate Bill 91, had encouraged alternatives to prison, such as electronic monitoring, halfway houses and supervised release.

SB 91 reduced prison costs, but many Alaskans believed it was contributing to an increase in property crime and pushed for its repeal.  Since then, the budget of the Alaska Department of Corrections has grown from $291 million in 2019 to $345 million in the plan now being considered by the Legislature.

Much of that increase is due to increases in spending on inmate healthcare and rehabilitation, budget documents show. Department officials told a legislative panel last month that 65% of Alaska’s prison inmates are mentally ill, 80% have some kind of substance abuse disorder, and 65% have reported some kind of traumatic brain injury. Almost one in four inmates is positive for Hepatitis C.

Several hundred inmates were released from custody to relieve prison crowding during COVID-19, but the department now projects a continued rise in the state’s prison population, estimating that by June 2025, more than 4,900 Alaskans will be in prison.  As of February, more than half of the state’s prison population consisted of people who were awaiting trial, not those who had been sentenced.

I share the view that this situation is "sad" with more money now to be spent by Alaskans to cage its citizens than to provide higher education. And it is especially interesting to read that the increased prison spending is mostly for "healthcare and rehabilitation," which likely includes some educational programming, and that the majority of Alaskan prison inmates are mentally ill and/or have substance abuse disorder and/or a serious brain injury.  As is likely true in many states, Alaska is spending more and more monies on prisons in order to tend to its most vulnerable populations, though only after they get involved with the criminal justice system (while other welfare programs like higher education get cut in order to provide welfare services to the incarcerated).

March 8, 2021 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)

"Taking Restorative Justice Seriously"

The title of this post is the title of this notable recent acticle authored by Adriaan Lanni and now available via SSRN. Here is its abstract:

Those seeking to reduce mass incarceration have increasingly pointed to restorative justice — an approach that typically brings those affected by a criminal offense together in an attempt to address the harm caused by the offense rather than to mete out punishment.  This Article is an attempt to think seriously about incorporating restorative justice throughout the criminal legal system.

For restorative justice proponents, expanding these practices raises a host of questions: Does the opportunity to alleviate mass incarceration justify collaboration with a deeply flawed criminal legal system?  Will the threat of criminal prosecution destroy the voluntariness and sincerity that is essential for a successful restorative process?  Can restorative justice be successfully used in cases where the victim cannot participate or there is no identifiable victim, as in drug offenses?  Will the process be coopted by bureaucratic impulses?  Restorative justice skeptics may ask whether applying a restorative approach to the most serious crimes will jeopardize the deterrent value of criminal law and lead to outcomes that are vastly disproportionate.  Those both inside and outside the movement will ask whether restorative justice can be implemented in a way that protects defendants’ procedural rights and is racially equitable.

I explore the choices and trade-offs that would be involved in expanding restorative justice to significantly reduce incarceration.  I argue that restorative justice can be expanded without significant adverse impacts on due process, racial equity, and proportionality.  At the same time, vastly expanding restorative justice entails compromising some key features of restorative justice.  I suggest that the disadvantages of expansion are significant, but are outweighed by the moral imperative to experiment with alternatives to mass incarceration.

March 8, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

March 7, 2021

Senators Durbin and Grassley re-introduce "Prohibiting Punishment of Acquitted Conduct Act"

Back in 2019, I was pleased to be able to blog here about a legialative effort to prohibit judicial reliance on "acquitted conduct" in the federal sentencing system.  I am now pleased to now be able to again highlight that Senators Dick Durbin and Chuck Grassley are again the bipartisan sponsors of the latest version of the "Prohibiting Punishment of Acquitted Conduct Act."  This March 4 press release from Senator Durbin's office provides these details:

U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, and Senator Chuck Grassley (R-IA), Ranking Member of the Senate Judiciary Committee, the lead sponsors of the landmark First Step Act, [on March 4] introduced the bipartisan, bicameral Prohibiting Punishment of Acquitted Conduct Act of 2021.  This legislation would end the unjust practice of judges increasing sentences based on conduct for which a defendant has been acquitted by a jury.  U.S. Representatives Steve Cohen (D-TN-09) and Kelly Armstrong (R-ND) plan to introduce House companion legislation next week.

“Under our Constitution, defendants can only be convicted of a crime if a jury of their peers finds they are guilty beyond a reasonable doubt.  However, federal law inexplicably allows judges to override a jury verdict of ‘not guilty’ by sentencing defendants for acquitted conduct.  This practice is inconsistent with the Constitution’s guarantees of due process and the right to a jury trial,” Durbin said.  “Our bipartisan, bicameral bill would make it clear that this unjust practice is prohibited under federal law.”

“If any American was acquitted of past charges by a jury of their peers, then some sentencing judge down the line shouldn’t be able to find them guilty anyway and add to their punishment. A bedrock principle of our criminal justice system is that defendants are innocent until proven guilty. The use of acquitted conduct in sentencing punishes people for what they haven’t been convicted of. That’s not acceptable and it’s not American. Back in 2014, Justices Scalia, Thomas and Ginsburg all agreed, but weren’t able to hear the case and stop the practice. Our bill will finally prohibit under federal law what many already find patently unconstitutional,” Grassley said....

Our criminal justice system rests on the Fifth and Sixth Amendment guarantees of due process and the right to a jury trial for the criminally accused.  These principles require the government to prove a defendant’s guilt beyond a reasonable doubt to a jury.  Under the Constitution, defendants may be convicted only for conduct proven beyond a reasonable doubt.   However, at sentencing, courts may enhance sentences if they find, by a preponderance of the evidence, that a defendant committed other crimes.  The difference in those standards of proof means that a sentencing court can effectively nullify a jury’s verdict by considering acquitted conduct....

The Prohibiting Punishment of Acquitted Conduct Act would end this practice by:

  • Amending 18 U.S.C. § 3661 to preclude a court of the United States from considering, except for purposes of mitigating a sentence, acquitted conduct at sentencing, and
  • Defining “acquitted conduct” to include acts for which a person was criminally charged and adjudicated not guilty after trial in a Federal, State, Tribal, or Juvenile court, or acts underlying a criminal charge or juvenile information dismissed upon a motion for acquittal.

Along with Durbin and Grassley, the legislation is also cosponsored by Senators Patrick Leahy (D-VT), Mike Lee (R-UT), Cory Booker (D-NJ), and Thom Tillis (R-NC).

The Prohibiting Punishment of Acquitted Conduct Act is endorsed by the following organizations: National Association of Criminal Defense Lawyers, Due Process Institute, ALEC Action, American Civil Liberties Union, Americans for Prosperity, Americans for Tax Reform, Black Public Defenders Association, Digital Liberty, Dream Corps JUSTICE, Drug Policy Alliance, Fair Trials, Faith and Freedom Coalition, FAMM, Federal Public and Community Defenders, FreedomWorks, The Innocence Project, Justice Action Network, The Leadership Conference on Civil and Human Rights, National Legal Aid & Defender Association, Prison Fellowship, R Street Institute, Right on Crime, The Sentencing Project, Texas Public Policy Foundation, and Tzedek Association.

Bill text is available here.

A few of many, many prior related posts:

March 7, 2021 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

"Natural Punishment"

The title of this post is the title of this interesting new article authored by Raff Donelson now available via SSRN. Here is its abstract:

A man, carrying a gun in his waistband, robs a food vendor. In making his escape, the gun discharges, critically injuring the robber. About such instances, it is common to think, “he got what he deserved.”  This Article seeks to explore cases like that, cases of “natural punishment.”  Natural punishment occurs when a wrongdoer faces serious harm that results from her wrongdoing and not from anyone seeking retribution against her.  The Article proposes that US courts follow their peers and recognize natural punishment as genuine punishment for legal, specifically constitutional, purposes.  Were US courts to do so, they would need to reduce the amount of punishment they would otherwise bestow on wrongdoers upon conviction, if a natural punishment has occurred or foreseeably will occur.  A handful of foreign jurisdictions already accept something like this Article’s proposal, but natural punishment has no formal legal recognition in the United States.  The goal of this Article is twofold: first, it offers a rigorous and defensible definition of natural punishment, by distinguishing it from nearby notions and dispelling any association with supernatural ideas, and, second, it demonstrates that recognizing natural punishment as genuine punishment will not much disturb existing American legal institutions and understandings.

As an added bonus, the concept of natural punishment can be employed to solve a longstanding problem in criminal law theory, the Mystery of Credit for Time Served.  The Mystery surrounds the common practice of giving prisoners credit toward their prison sentences for their time served in jail awaiting trial.  The Mystery poses a dilemma about whether the detention time was punishment: If it was punishment, then the detainee was punished before trial in violation of Due Process; however, if the time was not punishment, there is no reason to discount the prison sentence.  Surprisingly, seeing the time in detention as an instance of natural punishment resolves the Mystery.

March 7, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (0)

Rounding up lots of good recent criminal justice reads

Another full work week with lots of activity has meant needing the weekend to catch up on interesting reading (and blogging) on a variety of criminal justice fronts.  So, here is a quick round up of some recent pieces catching my eye:

From The Crime Report, "Why It’s Time to Abandon Drug Courts" by Miriam Krinsky and Leo Beletsky

From the Georgetown Public Policy Review, "Public Opinion on the Death Penalty: Where Republicans and Democrats Agree (and Disagree)" by Emma Farber

From The Hill, "Politics in the Department of Justice can be a good thing" by Shon Hopwood

From The Hill, "Biden's justice reform should influence prosecutor appointments" by Russ Feingold and Amy Fettig

From The Hill, "Why do we still punish crack and powder cocaine offenses differently?" by Kevin Ring and Heather Rice-Minus

From My Northwest.com, "‘Worst of both worlds’: No easy fix for WA Supreme Court decision legalizing drug possession" by Hanna Scott

From the New York Times, "The ‘Hidden Punishment’ of Prison Food" by Patricia Leigh Brown

March 7, 2021 in Recommended reading | Permalink | Comments (0)