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March 20, 2021

SCOTUS appoints counsel (and delays argument) after new government position on crack sentencing retroactivity issue in Terry

As noted in this prior post, earlier this week the Acting Solicitor General informed the US Supreme Court that the government had a new (pro-defendant) position in Terry v. United States, No. 20-5904, the SCOTUS case concerning which crack offenders have a so-called "covered offense" under Section 404 of the FIRST STEP Act to allow for their retroactive resentencing.  The Supreme Court yesterday responding via this order in the Terry case:

The case is removed from the calendar for the April 2021 argument session.  Adam K. Mortara, Esquire, of Chicago, Illinois, is invited to brief and argue this case, as amicus curiae, in support of the judgment below.  The case will be rescheduled for argument this Term.

In other words, the Court appointed a lawyer to make the case against broad retroactive resentencing for certain crack offenders after the government said it no longer supported that position.  Doing so is not unusual when the parties agree on an outcome different from the decision below.  What is relatively unusual is that this appointment needed to be made long after cert was granted and briefing complete because of the Acting SG's new position on the merits.

I am pretty sure, under normal circumstances, the April argument session is the last one of a usual SCOTUS Term. But in our current a world of online arguments and disrupted timelines, perhaps the Justices can and will schedule this one argument for some time in May.  The Acting SG noted that the defendant in this case is due to finish the imprisonment portion of his sentence this September, and it would seem the Court is remains eager to resolve this matter before it takes its summer break.

Prior related posts on Terry:

March 20, 2021 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

March 19, 2021

Small, and not quite steady, reform progress in a not quite new era for criminal justice reform

An interesting set of new press pieces highlight ways in which the criminal justice times seem to be a-changing during the Biden era, but not yet quite as much or as fast as lots of advocates might be hoping or expecting.  Here they are with a brief excerpt:

From BuzzFeed News, "COVID-19 Has Torn Through Prisons. Advocates Want Biden To Act Now"

Nearly all of the groups who spoke with BuzzFeed News said that they’ve participated in briefings and have had conversations with White House staff to raise concerns about BOP policy, including compassionate release and underused policies to thin prison populations during the pandemic.  Advocates have specifically pushed the administration to direct the BOP to use its expanded authority to grant home confinement under last year’s coronavirus relief plan.

Advocates have had a mixed response to those conversations, with optimism about prospective change mingled with frustration about slow-moving progress.

From Slate, "The Biden Administration Takes a Step Toward Undoing the Damage of the War on Drugs"

In September, [Tarahrick] Terry petitioned the Supreme Court saying he qualified for a sentence reduction [of his 188-month sentence for possessing 3.9 grams of crack cocaine in 2008], because the First Step Act made 2010’s Fair Sentencing Act retroactive. His case got a boost earlier this week, when President Biden’s Justice Department informed the Supreme Court they believe that Terry, and others who were incarcerated for low-level crack cocaine offenses, should have their sentences reduced under the First Step Act. The court plans to hear the case later this year.

From Vox, "The EQUAL Act would finally close the cocaine sentencing disparity"

Reps. Don Bacon (R-NE) and Kelly Armstrong (R-ND) have already cosponsored [the EQUAL Act]. But in a statement to Vox, Bacon was less optimistic about the timeline, even as he said that eliminating the cocaine sentencing disparity is only one part of a broader justice reform push he wants to tackle.

“While I am optimistic it will be voted on in the House this Congress, I don’t have a projected timeline for the bill at this stage and hope to gain more bipartisan support as it makes its way through the legislative process,” he said. The Senate is where it will be more critical to find Republican support, considering the chamber’s 50-50 split. Thus far, only Sens. Cory Booker and Sen. Dick Durbin (D-IL) have signed on.

Sen. Chuck Grassley, who worked with Durbin to introduce and shepherd the First Step Act through the Senate, would be a critical part of any bipartisan negotiation. In a statement to Vox, a spokesperson for Grassley said he was receptive to working with Democrats on the EQUAL Act, but that that process had not begun yet.

March 19, 2021 in Criminal justice in the Biden Administration, Drug Offense Sentencing, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

"Bottleneck: The Place of County Jails in California’s COVID-19 Correctional Crisis"

The title of this post is the title of this new paper now on SSRN authored by Hadar Aviram. Here is its abstract:

This Article examines a lesser-known site of the COVID-19 epidemic: county jails.  Revisiting assumptions that preceded and followed criminal justice reform in California, particularly Brown v. Plata and the Realignment, the Article situates jails within two competing/complementary perspectives: a mechanistic, jurisdictional perspective, which focuses on county administration and budgeting, and a geographic perspective, which views jails in the context of their neighboring communities.  The prevalence of the former perspective over the latter among both correctional administrators and criminal justice reformers has generated unique challenges in fighting the spread of COVID-19 in jails: paucity of, and reliability problems with, data, weak and decentralized healthcare policy featuring a wide variation of approaches, and serious litigation and legislation challenges.  The Article concludes with the temptation and pitfalls of relying on the uniqueness of jails to advocate for vaccination and other forms of relief, and instead suggests propagating a geography-based advocacy, which can benefit the correctional landscape as a whole.

March 19, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Notable new review and accounting of COVID and federal compassionate release results

Vice News has this effective and thorough new piece bringing together a lot of notable data on federal compassionate release in the COVID era under the full headline "Prisoners Keep Dying of COVID While ‘Compassionate Releases’ Stall in Court: At least 54 federal prisoners have died from COVID-19 after having a compassionate release request denied or left pending."  Though the headline is focused on prisoner deaths, the lengthy article covers a lot of ground is worth reading in full.  Here are excerpts (with links from the original):

Steven Brayfield was almost home. The 63-year-old from Springfield, Missouri, fought over six months for “compassionate release,” arguing in his emergency bid for freedom that he’d be unlikely to survive a coronavirus outbreak in federal prison. In the end, he was proven right.

Brayfield suffered from Type 2 diabetes, kidney problems, and obesity, among other health issues. He first asked his warden for compassionate release in July, when the dangers of COVID-19 in prison were already well documented but before the virus began to wreak havoc inside the minimum-security camp at the U.S. Penitentiary in Leavenworth, Kansas. He had just under two years left to serve on a non-violent, meth-related drug conviction....

But by Jan. 3, he was running a fever and tested positive for COVID. As he was struggling to breathe, prison staff escorted him to the hospital, where he was handcuffed to the bed. The next day, Brayfield’s judge granted his compassionate release request, reducing his sentence to time served. But his condition worsened and doctors put him on a ventilator. His public defender asked the judge to reverse the ruling, telling the court that if Brayfield died a free man, his family would be unable to afford the medical bills. He hung on until Jan. 19, remaining a federal prisoner until his last gasps for air. “You keep on thinking, my god, he’s so close to coming home,” said Shirley Marler, Brayfield’s 84-year-old mom. “Well, he came home alright, but in a box.”

Brayfield is one of at least 54 federal prisoners to die from COVID-19 after having a compassionate release request denied or delayed without a final resolution, according to data provided to VICE News.  The data, compiled by the University of Iowa’s College of Law’s Federal Criminal Defense Clinic, shows how a deluge of compassionate release requests during the pandemic overwhelmed the recently reformed system, leading to vulnerable people dying behind bars when they were eligible for freedom. 

Additional analysis of over 4,000 cases, based on data compiled by a researcher at Georgetown Law School and shared with VICE News, highlights a lasting legacy of former President Donald Trump: Judges appointed by Republicans grant compassionate releases at lower rates than Democratic appointees. Trump’s prolific stacking of the federal courts, where judges serve for life, will likely shape the way such cases are handled for many years to come. 

From 2020 to mid-January 2021, federal judges granted compassionate release to 2,271 prisoners, according to data provided to VICE News by the Administrative Office of the U.S. Courts in Washington, D.C. The rulings freed people who might have otherwise contributed to the tragic toll of COVID-19 (225 deaths and counting) inside the federal Bureau of Prisons.

In years past, compassionate release was virtually impossible for federal prisoners to obtain—an option made available only in life-or-death emergencies, at the discretion of prison officials. Between 2013 and 2017, the BOP approved just 6 percent of requests, letting out over 300 people, while 266 others died in prison custody after their requests were denied.

The passage of the First Step Act in 2018 reformed the system, allowing federal prisoners under “extraordinary and compelling” circumstances to petition their sentencing judges directly for compassionate release. Prisoners still have to “exhaust” their options within the BOP, but after 30 days the request goes to the courts. Prosecutors typically argue against the person getting out, and defendants can submit evidence such as medical records or letters of support. But even with the changes, compassionate releases remained rare at first. In 2019, judges granted fewer than 100 total, according to the Administrative Office of the Courts.

The pandemic changed everything. Coronavirus turned federal prisons into death traps, especially low-security institutions with dorm-style housing units. Suddenly the federal courts were flooded with compassionate release requests, with judges receiving more than 10,000 applications in just three months, from last March to May. Those who follow the courts closely have been frustrated by inconsistent applications of the law or lack of leniency by judges, especially ones appointed by Trump and George W. Bush.

A few of many prior related posts:

March 19, 2021 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

March 18, 2021

Can global capitalists bring an end to capital punishment around the globe?

The question in the title of this post is prompted by the interestng news of the creation of a notable new death penalty abolition group going by the name "Business Leaders Against the Death Penalty."  This ABC News piece, headlined "Branson leads business group demanding end to death penalty," provides the backstory:

Virgin Group Chairman Richard Branson feels the time has come to galvanize business leaders in a movement to eradicate the death penalty, a cause he has ardently supported for years.

A group of 18 business leaders led by the British billionaire launched a campaign Thursday they hope will quickly build, signing a declaration that called on all governments to end executions. Branson said he hoped to get “hundreds, if not thousands" more business leaders on board over the next six months.

“I’m contacting a lot of business leaders that I’ve met over the years. I think a lot of us believe it to be inhumane, to be barbaric, to be flawed,” Branson said in a video interview with The Associated Press before announcing the campaign at the virtual South by Southwest festival....

Telecom billionaire Mo Ibrahim, the co-founders of Ben & Jerry's Ice Cream, Thrive CEO Arianna Huffington and Jared Smith, co-founder of software vendor Qualtrics, were among the 18 initial signatories....

The business leaders, who said they were speaking in a personal capacity, called the death penalty emblematic of the systemic racial injustice companies claim to be trying to fight. “Business leaders need to do more than just say Black Lives Matter. They need to walk the talk and be instrumental in tearing down all the symbols of structural racism in our society," Ben Cohen and Jerry Greenfield, co-founders of Ben & Jerry’s, said in a prepared statement.

According to a report by the Washington-based Death Penalty Information Center, Black people remain overrepresented on U.S. death row, and Black people who kill white people are far more likely to be sentenced to death than white people who kill Black people.

Although support for the death penalty has waned in recent years, the Trump administration carried out an unprecedented run of 13 executions in six months last year, ending a 17-year hiatus on federal executions. President Joe Biden has not said whether he will halt federal executions, though he is against the death penalty and has said he will work to end its use.

Celia Ouellette, CEO of The Responsible Business Initiative for Justice that is coordinating the campaign, said the hurried executions last year added “real urgency” to the issue that helped draw in business leaders. She said the signatories would be participating in various events with anti-death penalty activists groups in the next months. “This is the first time that we've seen business leaders joining forces to call for an end to the death penalty globally," Ouellette said.

Branson said business leaders see the tide turning, symbolized most recently by the Virginia state legislature's vote to abolish capital punishment. That vote last month held particular significance for death penalty opponents because Virginia has executed more people than any other state in its long history.

Despite his own longtime advocacy, Branson said the death penalty has not been an issue business leaders have taken up historically. “So part of our job is, is to find the time to educate them, give them the facts and win and win them over,” Branson said. “It needs patience. It needs education for some. But for, I say the vast majority, it’s a reasonably easy. The doors are open and I think we can get the vast majority of people on board.”

March 18, 2021 in Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

"Criminal Law’s Core Principles"

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

Modern criminal law scholars and policymakers assume they are free to construct criminal law rules by focusing exclusively on the criminal justice theory of the day.  But this “blank slate” conception of criminal lawmaking is dangerously misguided.  In fact, lawmakers are writing on a slate on which core principles are already indelibly written and realistically they are free only to add detail in the implementation of those principles and to add additional provisions not inconsistent with them.  Attempts to do otherwise are destined to produce tragic results from both utilitarian and retributivist views.

Many writers dispute that such core principles exist.  It is a common view that people’s justice judgments are personal to them or perhaps to their small group.  If this were true, it would present an obstacle if not a permanent barrier to the creation of a criminal code that has legitimacy and moral credibility with most persons within its jurisdiction. But an investigation of the evidence from a wide variety of sources suggests that there does exist a set of core principles upon which humans generally agree.

This article examines six potential indicators of core principles: principles on which empirical studies suggest a high level of agreement across demographics within society, principles on which empirical studies suggest agreement cross culturally, principles emerging early in the historical development of formal criminal law, principles reflected in the universal path of child development, principles reflected in the behavior of social animals, and rules and principles regularly appearing in natural experiments of human groups beyond the reach of law.  We identify nine principles with support from most or all of these sources and that properly qualify as near universal core principles.

One might speculate about why such core principles exist, and the article does, but whatever the reason — be it an evolutionarily created genetic predisposition or a process of generalized learning common to all social groups — the existence of such core principles has important and diverse practical implications: in suggesting reduced crime-control effectiveness where the criminal law conflicts with a core principle, in setting limitations on and strategies for social reform, in supporting a broader use of restorative justice, in suggesting a more nuanced application of the legality principle, in supporting the recognition of a general mistake of law defense and a mitigation for partial excuses, in assessing the feasibility of creating an international criminal law or of creating a criminal law for a territory now being created whose population does not yet exist, and even in planning initial contact with extraterrestrial beings.

March 18, 2021 in Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Notable new Seventh Circuit panel opinion on ineffectiveness of counsel failing to raise meritorious guideline argument

A helpful reader alerted me to a notable new ineffective assistance opinion from the Seventh Circuit in Bridges v. US, No. 20-1623 (7th Cir. Mar. 17, 2021) (available here).  Here is how this opinion gets started:

This appeal raises fundamental questions about what is expected of defense counsel in the federal criminal justice system, where almost all defendants plead guilty.  Counsel must negotiate guilty pleas and argue for more lenient sentences, both of which require expert knowledge of the federal Sentencing Guidelines.  This knowledge is a core competency for federal criminal defense.  The issue here is whether a lawyer’s failure to raise an important and, in this case, ultimately meritorious guideline argument may constitute ineffective assistance of counsel even where there was no directly on-point precedent within the circuit at the relevant time.  We find that it may in this case.

Now in his sixties, petitioner Jeffery Bridges has been in and out of prison since he was a teenager and has been battling drug addiction even longer.  After staying out of trouble for eight years, Bridges got involved in drugs again and committed four robberies in two days in March 2017.  He netted scarcely $700 in total and was easily caught by the police. A federal grand jury indicted Bridges for four counts of robbery in violation of the Hobbs Act, 18 U.S.C. § 1951.

Bridges agreed to a guilty plea stipulating that he was subject to the guideline career offender enhancement, U.S.S.G. § 4B1.1, which could apply only if his crimes of conviction were “crimes of violence” as defined by the Guidelines.  This enhancement more than doubled his advisory guideline sentencing range.  The district court imposed a below-guideline sentence of 140 months.  Bridges did not appeal. He had waived that right in his plea deal.

Bridges now seeks postconviction relief under 28 U.S.C. § 2255, alleging he was denied effective assistance of counsel in pleading guilty.  He argues that his lawyer failed to realize and argue that Hobbs Act robbery did not then qualify as a “crime of violence” under the Guidelines, so he should not have been categorized as a career offender.  When Bridges pleaded guilty and was sentenced, there was no binding precedent in this circuit on this issue. Bridges argues that competent counsel still would have recognized the issue or at least known to investigate it.  The district court denied relief without holding a hearing, reasoning that counsel’s failure to anticipate arguments that we have not yet accepted cannot be constitutionally deficient.

We reverse for an evidentiary hearing on defense counsel’s performance under 28 U.S.C. § 2255(b).  First, we join the other circuits that have concluded that Hobbs Act robbery is not a “crime of violence” as that phrase is currently defined in the Guidelines.  Although we had not so ruled when Bridges pleaded guilty, the building blocks for a successful legal argument were already in place.  Effective counsel would have considered this question that was so important in this case.  At that time, minimal research would have uncovered a Tenth Circuit decision squarely holding that Hobbs Act robbery was no longer a crime of violence under a 2016 amendment to the guideline definition of a crime of violence.

We realize how counterintuitive it is to argue or hold that Hobbs Act robbery is not a crime of violence — and that counsel could be deficient for failing to argue for that unexpected result.  Yet defense lawyers, prosecutors, and judges in the federal system all appreciate that both statutory and guideline sentencing enhancements for recidivism and crimes of violence have produced many counterintuitive results over the last several decades.  During those years, both federal statutes and the Sentencing Guidelines have used the “categorical method” to classify prior convictions and current offenses.  The Sentencing Commission proposed guideline amendments in 2018 to reduce reliance on the categorical method. 83 Fed. Reg. 65400, 65407–65412 (Dec. 20, 2018).  The Commission has been unable to act on those proposed amendments, though, because it has lacked a quorum for years.  Bridges may be a beneficiary of that odd circumstance.

March 18, 2021 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

March 17, 2021

Spotlighting ugly reasons and realities surrounding federal gun sentences

Tana Ganeva has this effective Reason piece giving attention to federal gun sentences.  The full headline highlights its themes:  "743 Years and 3 Months. 117 Years. 51 Years. Why Are These Men's Sentences So Long?  For possessing a gun while committing a crime — even when no one is killed — too many defendants are slammed with sentences decades or even centuries longer than justice demands."  Here are excerpts:

The federal statute 924(c) imposes mandatory minimum sentences in offenses involving a firearm. Federal law requires that the lengthy sentences for possessing a gun while committing a crime be served back-to-back instead of concurrently, even though state laws tend to be much more lax: In Indiana, where [Charles] Scott was caught, robbery is punishable by one to six years in state prison, with a recommended time of three years. Scott's original offense, the robberies, account for a little more than six years of his sentence — the other 45 years were from the 924(c) charges. Scott's draconian sentence is actually lighter than others snagged under the same statute — there are people sentenced to centuries in prison because of 924(c) even if their underlying crimes would have earned them far less time than multiple human life spans.

As of 2016, 14.9 percent of the federal prison population — or 24,905 people — was incarcerated due to a firearm offense carrying a mandatory minimum penalty, according to the Federal Sentencing Commission. Criminal justice reform advocates believe the law wrongly conflates gun violence and crimes where the perpetrator carries, or even just owns, a gun.

"Mandatory minimums around firearms are some of the most frustrating cases," says Kevin Ring, the executive director of Families Against Mandatory Minimums (FAMM), a criminal justice reform organization. "In a country with 340 million firearms, the idea that someone is not going to happen to be in possession of a gun if they commit a crime … the law does not distinguish between someone who uses a gun to commit a crime, and someone who happens to be a gun owner. It's a frustrating, stupid law."...

Although Scott and his family hope for federal clemency, his case isn't a neat fit for today's political climate. Democratic lawmakers brand themselves as advocates for gun control, and so don't have a lot to gain from showing mercy to people who break gun laws. Most Republicans still tend to campaign on tough-on-crime platforms that don't leave a lot of room for second chances.

"For Democrats, mandatory minimums for guns can be a plan B for gun control," says Ring. "And for Republicans, for too long, people resisted the idea that people who own guns … some of those people sell drugs. To fend off gun control, they like to hammer people who have a gun when they commit a crime."

March 17, 2021 in Gun policy and sentencing, Mandatory minimum sentencing statutes | Permalink | Comments (4)

Reviewing all the notable criminal justice work of the Washington Supreme Court in recent times

Regular readers have likely noticed pretty regular posts about pretty notable criminal justice rulings coming from the Supreme Court of Washington. In this Slate piece, Mark Joseph Stern tells the story of this court's recent personnel changes and reviews some of these rulings. The piece, which is fully headlined "Washington State Shows How a Truly Progressive Court Changes Everything: Joe Biden should look to the state’s diverse and courageous Supreme Court when making nominations to the federal bench," starts this way (with links from the original):

The Washington Supreme Court is on a roll.  On March 11, it took the unprecedented step of outlawing mandatory sentences of life without parole for people under the age of 21 — making Washington the first state in the nation to extend such protections to defendants who, while technically adults at the time of their crime, have greater potential for rehabilitation because of their youth. The previous month, a majority of the court struck down Washington’s drug possession law, effectively legalizing possession of controlled substances while overturning thousands of convictions going back decades.  And, in January, the court made it easier for victims of police misconduct to sue law enforcement officers who violate their rights.

This extraordinary series of decisions shows how a diverse and progressive judiciary can make the country a more just and equitable place. The Washington Supreme Court’s members exemplify the kind of judges whom Joe Biden should be looking for as he prepares to announce his first slate of judicial nominees. To counter the current dominance of conservative ideology in the federal judiciary, liberals can’t rely on moderates committed to minimalism; they need a distinct vision of the law as a force of justice that guarantees equal rights and dignity to those who are impoverished, unpopular, and powerless. To find one, they need only look to Washington state.

Because it interprets its own state constitution, the Washington Supreme Court has much more leeway than a federal court to depart from SCOTUS jurisprudence.  States’ high courts have final say over the meaning of their own state constitutions, which gives justices room to expand rights that SCOTUS has constricted under the federal Constitution. Many state constitutions, including Washington’s, provide greater protections than the federal Constitution.  That’s why, in 2018, the Washington Supreme Court has permanently banned the death penalty and prohibited sentences of life without parole for juveniles—two steps SCOTUS has refused to take.

Those decisions were a preview of things to come. In 2019 and 2020, Democratic Gov. Jay Inslee appointed two new justices to the court: Raquel Montoya-Lewis, a Jewish Native American woman, and Grace Helen Whitener, a disabled Black lesbian immigrant.  (In November, the state voted overwhelmingly to keep both women on the bench.)  There, they joined Justice Mary Yu, an Asian American Latina lesbian, as well as Steven González, the current chief justice, who is Hispanic, and one of just two men on the nine-member court.  Inslee’s appointees created the most diverse high court in American history.

March 17, 2021 in Drug Offense Sentencing, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

March 16, 2021

"Defend the Public Defenders: Their ability to hold on to their job should not depend on the same people they challenge in court."

The title of this post is the full headline of this notable piece recently in The Atlantic authored by Irene Oritseweyinmi Joe. Here are excerpts:

Public defense might be one of the rare professions in which doing one’s job too well can lead to being fired.  The reasons for this are structural — public defenders are tasked with an obligation they cannot fulfill without upsetting those tasked with helping them fulfill it — and the system can be fixed structurally: by creating a state-level office whose job it is to defend public defenders....

Working as a public defender can be like walking a tightrope.  Attorneys are constitutionally required to provide effective representation to their clients, ethically required to do so as officers of the court, and subject to the ordinary human desire to keep their jobs.  Other actors in the criminal process complicate the public defender’s ability to do each of these things. At times, courts set restrictive and unconstitutional bail, show little patience for the time it takes attorneys to investigate and prepare cases, and fail to hold prosecutors accountable.  Prosecutors sometimes bring so many cases that public defenders cannot meaningfully represent every client they are assigned, and then use this tactic to move cases quickly through the criminal process.  Then, the leaders of the institutions within the executive and judicial branches of government can fire or reassign a public defender when they are displeased with his or her work.  It can be a vicious cycle, where a public defender is fighting a battle against the very entity that must provide that public defender with the resources and support it needs to do so.  So who defends public defenders when they are faced with serious consequences for challenging the decisions of opposing actors, when those very actors oversee the public-defender institution?

Most states house the public defender under either the judicial or executive branch, and each placement provides its own unique challenges. The executive branch has a clearly articulated objective of enforcing a jurisdiction’s laws.  This role is in some ways similar to the public defender’s role of ensuring that law enforcement complies with both constitutional and statutory law, but it also contradicts the mandate of the public defender to protect the individuals charged with violating those laws.

The state judicial branch is tasked with advancing the resolution of the courtroom process neutrally, efficiently, and fairly.  This role can sometimes lead courts to deprioritize the public defender’s needs in larger decisions about the courtroom process, as when judges feel they must support the requests of others involved in the criminal process, such as prosecutors and victims.  Courts can also punish the public defender who acts in a manner inconsistent with the court’s view of how the process should evolve....

The obvious solution would be to make the public defender an independent institution, so it could define its own structure to best suit the needs of its client base without fear of reprisal.  But doing so would overlook the need to secure funding in a government system where all actors must compete for limited resources.  While the public defender plays an important role in the criminal-justice system and protects the rights of the public at large, its influence and political efficacy are often smaller in comparison to other executive or judicial agents.  To secure a seat at the table, the public-defender institution requires an authoritative presence that can effectively pursue its agenda within the state structure.

Instead of asking for pure independence, public defenders should seek a protector, a state actor that possesses a degree of independence but is also able to effectively advocate for the institution.  This actor’s primary responsibility would be to ensure that public defenders receive the resources they need to comply with constitutional and ethical duties. The position would also challenge the leadership in its assigned branch, including identifying practices that hinder public defenders’ ability to do their job and holding other actors accountable in the larger system.

Fortunately, the nation already has a model in place for such a position: the inspector general.  Established by statute in 1978, the inspector general is a relatively independent government office tasked with neutrally assessing whether members of the executive branch have violated constitutional principles.  The public-defender version could notify the court of constitutional and ethical violations related to the delivery of public-defender services.  This position would also reaffirm the role of the public defender as a protector of the general public, as it serves as a check on the government’s intrusion into a citizen’s life through the criminal process.

March 16, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Amusing (but still quite serious) reminder of what not to do while awaiting federal sentencing

A Sixth Circuit panel yesterday issued a notable (unpublished) opinion in US v. Cadieux, No. 20-1689 (6th Cir. Mar. 15, 2021) (available here).  It is hard not to be somewhat amused by the facts of the case, but it is still important not to downplay the serious sentencing realities involved.  Here are the factual basics:

Cadieux was involved in a Michigan conspiracy to distribute marijuana in which he grew and then sold at least 100 pounds of processed marijuana over the course of two years to Andrew Bravo who then sold the drugs to others.  Cadieux was arrested and charged in December 2019 for his role in this drug-trafficking conspiracy.

He was very cooperative in the case against him.  Shortly after his arrest, he gave the government information and testified before a grand jury.  And after the court released him on bond, Cadieux entered into a plea agreement and pled guilty to conspiracy to manufacture, distribute, and possess with intent to distribute 50 kilograms or more of marijuana. While out on bond, however, Cadieux also made some poor choices.

First, he violated his conditions of release when he ate a marijuana brownie, tested positive for marijuana three times, and took two Adderall pills prescribed to someone else. Second, he discussed details of his pending criminal investigation on a local radio show, “Free Beer and Hot Wings,” after the hosts asked listeners about the easiest money they had ever made.  Cadieux told the hosts that he had made about three million dollars in past three years growing and selling marijuana.  He acknowledged that he was going to prison for it.  But he said “it was worth it” because he was only going to prison for 15 to 24 months, and he could keep the money he made because he was “good at hiding” it. (R. 173, Presentencing Report, PageID 331.)  He told them his plan was to “get out and do it again,” but he said that the next time he was “gonna do it legally . . . but in [his] wife’s name” because he couldn’t “do it in [his] name no more.” (First Call.)  One of the hosts responded, “yeah, you’ll be a felon . . . .” (Id.)  Third, after realizing the call had been a mistake, Cadieux called again and asked the show to “dump a cup of coffee on the sound board and get rid of the call” because the call had upset his attorney. (R. 185, Sentencing Hearing, PageID 597.) He offered to pay for a replacement.

After Cadieux’s call to “Free Beer and Hot Wings,” the government investigated Cadieux’s concealment of drug money.  It “identified significant sums of unexplained cash hid[den] in his bank accounts.” (Id. at 602.)  And Cadieux agreed to voluntarily forfeit $75,000, which the government believed more accurately represented his drug profits than Cadieux’s statements on the air.

Critically, Cadieux's calls into the "Free Beer and Hot Wings" radio show ended up costing him a lot more than the forfeited $75,000.  Specifically, as a direct result of this call and his other pre-sentencing behavior, "probation’s presentence report (PSR) recommended an enhancement for obstruction of justice and refused to recommend a reduction for acceptance of responsibility."  The sentencing court adopted these recommendations:

It found that Cadieux was not entitled to the acceptance-of-responsibility reduction for two reasons: 1) Cadieux’s statements on the radio show indicating his intent to “go right back to it” coupled with his attempts to destroy the recording and 2) Cadieux’s continued drug use in violation of bond conditions. (Id. at 609-11.) It found the obstruction enhancement appropriate because “the phone calls were relevant for sentencing”; it was particularly troubled by “the request of the radio station to ditch the tape.” (Id. at 610.) The court sentenced him to 37 months.

The Sixth Circuit panel affirms these determinations and upholds the 37 month sentence.  Given that the defendant here might have only been looking originally at a little more than year in prison, it seems that his foolish braggadocio and related pre-sentencing behavior cost him more time in prison than his offense behavior of conspiring to distribute 50 kilograms or more of marijuana.

March 16, 2021 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (3)

March 15, 2021

"14 Steps Biden’s DOJ Can Take Now to Reform America’s Criminal Legal System"

The title of this post is the title of this notable new commentary at The Appeal authored by Rachel Barkow and Mark Osler. I highly recommend the full piece, and here are parts of the preamble and the listed "14 steps":

As the Biden Administration takes shape and the nation recovers from four years of Donald Trump, there may be a temptation to return to “normal.”  That could be especially true at the Department of Justice, where so many longstanding norms — independence from politics, high ethical standards, a commitment to facts — took a beating.  With many Obama-era appointees back in high-level positions, there is likely a desire to go back to the way things were when the same people were last in power.  But that’s setting the bar too low.  While it’s critical that the department rededicate itself to its core values, it’s not sufficient to simply create an “Obama Lite” initiative.  Instead, the DOJ, with its vast authority and discretion, and its power to unilaterally shape the federal criminal legal system, should be a driving force for dramatic, high-impact change.

President Biden’s Executive Order stating that the DOJ will not renew contracts with private prison companies is a prime example of largely symbolic but practically useless reform.  It is a positive step that builds off an Obama-era policy, but it is only a tiny step forward.  It does not get to the heart of what really needs to change.  No one will be released or serve less time because of this order.  Private prisons account for a small percentage of where people in federal prisons are housed, and most of the private contracts at the federal level are with the Department of Homeland Security, which is not covered by the Executive Order.  In addition, many of the private contracts have long time periods, so another administration might undo this order before it ever takes effect.  It is therefore possible the order will not change anything at all.

The Obama Administration, just like administrations before it, had fatal flaws when it came to criminal justice, and the Biden Administration should aim to cure them.  This isn’t just important for better criminal justice policies and public safety.  It’s also important because of the institutional weakness that Trump put into stark relief.  For too long, the DOJ has relied on the notion that it should have broad discretion because good people work at the department.  While we agree that competent, well-meaning people generally do work at the DOJ, the Trump Administration showed why that isn’t enough.  For example, Obama’s Department might have opposed abolishing mandatory minimum sentences because of its own policy to curb their use (though even that policy was inconsistently enforced), but preserving those laws enabled the Trump Administration to use them far more aggressively.  If the Biden Administration wants both a lasting legacy of real criminal justice reform and to show a commitment to the rule of law, it needs to pursue critical institutional reform at the Department even if at the expense of its own discretion.

With those goals in mind, we propose the following 14 policy recommendations.  These are largely aimed at structural issues that can be addressed without legislation that would have the biggest impact in reducing prison populations and remedying disportionate punishments and discriminatory policies.  These reforms cover different topics, but they are all backed by empirical evidence as being in the interest of public safety, reducing racial disparities, and giving the DOJ back its good name.  These include substantive policy changes and personnel priorities, and we will cover those first precisely because they can be done without Congress.  Other reforms require Congress’s cooperation.  While there is no guarantee Congress will agree, this is the time to pursue these shifts, with Democratic leadership and bipartisan support for criminal justice reform.  But legislation will not move without DOJ support.  DOJ opposition has been a chief impediment for more significant criminal justice reforms, so it’s long past time for it to take the lead on breaking the logjam.

1. Revise Charging Policies...

2. Reform Clemency...

3. Commit to Compassionate Release...

4. Ensure First Step Act Programming Credit...

5. Reform and Move the Bureau of Prisons...

6. Abolish the Death Penalty...

7. Appoint Reformers to Key Positions Within DOJ...

8. Support Reform at the Sentencing Commission...

9. Support Creating a High-Level Criminal Justice Advisor Position...

10. Implement Forensic Science Reform...

11. Revise Discovery Policies...

12. Support Legislative Reform...

13. Support Release Through Parole...

14. Eliminate Financial Incentives to Charge Cases...

March 15, 2021 in Criminal justice in the Biden Administration, Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (1)

US Sentencing Commission releases 2020 Annual Report and Sourcebook of Federal Sentencing Statistics

This morning I receive an email from the US Sentencing Commission alerting me to the exciting news that "today the U.S. Sentencing Commission published its 2020 Annual Report and Sourcebook of Federal Sentencing Statistics." Here are the highlights as described in the email:

Agency Highlights

The Annual Report presents an overview of the Commission's work in FY20—a year that brought unique challenges and opportunities for technological advancement as a result of the COVID-19 pandemic.

  • COVID-19 significantly impacted how the Commission performs its daily work; however, sustained and strategic investments in technology, automation, and cybersecurity allowed for a quick pivot and continuity of operations culminating in this seasonable publication of the 2020 Sourcebook.
  • The Commission’s website traffic increased by more than 20% for the second year in a row, demonstrating that interest in the Commission's work by sentencing courts, Congress, the Executive Branch, and the general public continues to increase.
  • The Commission launched a new Interactive Data Analyzer--a tool for Congress, judges, litigants, the press, and the general public to easily and independently analyze sentencing data by their state, district or circuit, and refine their inquiry by a specific crime type or time period.
  • COVID-19 forced the Commission to suspend all in-person training and seminars; however, the Commission’s ongoing investments in eLearning allowed its training efforts to continue unabated.
  • The Commission collected, analyzed, and reported data on implementation of the First Step Act of 2018, and continued its recidivism research to help inform Congress and others on how best to protect public safety while targeting scarce prison resources on the most dangerous offenders.

FY20 Fast Facts

The Sourcebook presents information on the 64,565 federal offenders sentenced in FY20 — a sentencing caseload that decreased by nearly 12,000 cases from the previous fiscal year.

  • Immigration, drug trafficking, firearms, and fraud crimes together comprised 86% of the federal sentencing caseload in FY20.
  • Immigration was the most common federal crime type sentenced, accounting for 41% of the caseload (up from 38% in FY19).
  • Methamphetamine continued to be the most common drug type in the federal system, and a steadily growing portion of the drug caseload (up from 31% in FY16 and 42% in FY19 to 46% in FY20).
  • Methamphetamine trafficking continued to be the most severely punished federal drug crime (holding steady at an average sentence of 95 months). (Average sentences across all other major drug types (crack cocaine, powder cocaine, heroin, and marijuana) decreased.)
  • Two-thirds (67%) of drug offenders were convicted of an offense carrying a mandatory minimum penalty, up slightly from the previous year (66%).
  • Three-quarters (74%) of federal offenders were sentenced under the Guidelines Manual in FY20.

March 15, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

"Prioritizing Science Over Fear: An Interdisciplinary Response to Fentanyl Analogues Confirmation"

Fentanyl-Analogues-Conference_for-social_v3-1536x858The title of this post is the title of this exciting multi-panel event taking place tomorrow that is being hosted by Ohio State's Drug Enforcement and Policy Center. The full agenda for the event is avalable at this link, and the speakers are profiled at this link, and background materials are assembled here.

Here is a description of the event from the DEPC main event page:

In recent years, the illicit drug market around the world has seen a major rise in the production and use of synthetic drugs, including the rapid development of analogues of conventional drugs such as marijuana, amphetamine, and opiates.  Since 2015, fentanyl, a synthetic opioid, and its analogues have increasingly emerged in the illegal drug market in the U.S., most often added to heroin or sold in counterfeit opioid prescription pills. In 2018, 30,000 overdose deaths in the U.S. involved synthetic opioids.

The purpose of this invitation-only symposium is to educate advocates, congressional staff, administration officials, and scholars about the possibility that classwide scheduling of fentanyl analogues will yield unintended consequences, and to highlight evidence-based alternatives that can help reduce overdose deaths.  Participants will learn about the relationship between classwide scheduling and public health policy approaches to dealing with fentanyl analogues and overdose. P articipants will be presented with an intersectional discussion of the issue that examines classwide scheduling and its impact on the criminal legal system, racial inequities, scientific research, medicine, and evidence-based drug policy.

As this description reveals, this event started as an "invitation-only symposium," but ir is now possible for folks to register for the event at the DEPC main event page.

March 15, 2021 in Drug Offense Sentencing, Offense Characteristics, Who Sentences | Permalink | Comments (0)

Acting SG tells SCOTUS that new administration now supports broad application of crack retroactivity provision of FIRST STEP Act in Terry

Earlier this year, the Supreme Court granted cert in Terry v. United States, No. 20-5904, which concerns which crack offenders have a so-called "covered offense" under Section 404 of the FIRST STEP Act to allow for their retroactive resentencing.  Today, thanks to a heads up from a helpful colleague, I learned that the Acting Solicitor General sent this important short letter to the Supreme Court concerning the government's position in the Terry case.  Here are the key passages:

In its brief in opposition to certiorari, filed on December 4, 2020, the United States argued that petitioner lacks a “covered offense” as defined in the First Step Act.  The purpose of this letter is to notify the Court that the United States has reconsidered that position and will no longer defend the judgment of the court of appeals.

Following the change in Administration, the Department of Justice began a process of reviewing the government’s interpretation of Section 404 of the First Step Act.  As a result of that review, the Department of Justice has concluded that petitioner’s conviction is a “covered offense” under Section 404, that petitioner is entitled to request a reduced sentence, and that the court of appeals erred in concluding otherwise.

In light of the government’s current position, the Court may wish to appoint an amicus curiae to defend the judgment below.  The case is currently scheduled for oral argument on April 20, 2021.  According to the Federal Bureau of Prisons, petitioner is scheduled to complete the remainder of his term of imprisonment, which he will serve almost entirely on home confinement, on September 22, 2021.  At that time, he will begin serving a six-year term of supervised release, which is the minimum term of supervised release permitted under 21 U.S.C. 841(b)(1)(C) for his offense.  Were the case not to be decided before September 22, a question of mootness would arise that would need to be addressed before any decision on the merits.

SCOTUS mavens will better know if the Justices might just remand this particular case rather than try to appoint an amicus at this stage of the proceedings. (Nerd joke alert: will we see a different kind of Terry stop here?)  But, whatever SCOTUS does, it is big news that the new Administration is open to a broader application of the FIRST STEP Act here, and I am hopeful that this kind of Justice Department new thinking may end up being applied in a whole host of other sentencing settings.

March 15, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Georgia Supreme Court affirms discretionary juve LWOP sentence despite judge's statement it could not find juvenile "irreparably corrupt"

In the next few months, perhaps in the coming weeks, we should be getting an opinion from the Supreme Court in Jones v. Mississippi to help us better understand if Eighth Amendment jurisprudence requires a sentencer to make a specific finding about a juvenile before exercising its discretion to impose a sentence of life without parole.  In the meantime, states continue to struggle with juvenile LWOP sentencing requirements amidst all the resentencings that had to take place after Miller v. Alabama prohibited mandatory LWOP for juveniles. 

This morning, the Supreme Court of Georgia in Moss v. Georgia, S20A1520 (Ga. Mar. 15, 2021) (available here), addressed this issue in a case in which the sentencing court suggested it was impossible to make a certain finding about a juvenile defendant.  Here is the start and a key passage from the unanimous ruling in Moss:

Jermontae Moss was convicted of felony murder, possession of a firearm during the commission of a crime, and theft by receiving stolen property in connection with the shooting death of Jose Marin. On appeal, Moss contends that his trial counsel provided constitutionally ineffective assistance and that the trial court erred in sentencing Moss—a 17-year-old juvenile at the time of the crimes—to life in prison without the possibility of parole (“LWOP”) for murder.  Neither of Moss’s contentions has merit, so we affirm....

It is true, as Moss points out, that at one point in its lengthy order the trial court also opined on the role of the “Divine” in the ultimate judgment of a human being:

This Court cannot find, in this case or in any other, that the Defendant himself is “irretrievably corrupt” or “permanently incorrigible.” And it is this Court’s firm opinion that no court at any level is ever able to make such a determination; it is beyond human capacity. Only a Divine Judge could look into a person and determine that he is permanently and irretrievably corrupt; that he has reached a state from which there is no return, no hope of redemption, no hope of any restoration.

(Emphasis in original.)  But we do not view Miller or Montgomery — or cases from this Court applying Miller and Montgomery, such as Veal, White, and Raines — as requiring the trial court to conduct a metaphysical assessment of a juvenile defendant.  Given the express determinations contained in the trial court’s order and summarized in part above, we cannot say that the trial court’s additional observations about the metaphysical — especially when viewed in the full context of the court’s order — somehow rendered the trial court’s analysis erroneous.

March 15, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

March 14, 2021

With a new Attorney General now in place, should we expect to see any changes in the federal prison population?

Regular readers know that I have been following federal prison population data quite closely during the COVID era, giving particular attention to the numbers that the federal Bureau of Prisons updates weekly at this webpage.  But I have not blogged on this topic in nearly two months because, after a tumultuous 2020, there has been a notable stability in BOP reports of "Total Federal Inmates" during the Biden era.  As noted here, the day after Prez Biden's inauguration, BOP reported a total population of 151,646; as of March 11, 2021, this population stands at 151,703. 

Back in 2017, when Prez Trump was elected and Jeff Sessions took over as Attorney General and implemented new charging and sentencing policies for federal prosecutors, there was understandable concern (see articles here and here) that reductions in the federal prison population that took place during Prez Obama's second term would get reversed.  Indeed, Trump's Justice Department back in 2017, as noted here, was forecasting and budgeting for federal prison population increases.  But, due to a varety of factors, most notably the passage of the FIRST STEP Act and especially the COVID pandemic, the federal prison population actually dropped dramatically during in Trump era.  Specifically the federal prison population decreased by nearly 38,000 persons during Prez Trump's term (nearly 20%), which highlights that the plans, policies and practices of any Attorney General can be eclipsed by other factors impacting the federal prison population.

Against this backdrop, I am wondering (a) if new Attorney General Merrick Garland is going to implement policies and practices that consciously seeks to continue shrinking the federal prison population, and (b) whether we will see any real changes in the federal prison population anytime soon.  In this January post, I predicted the federal prison population would be relatively steady to start the Biden era because it could take months before we see any major DOJ policy changes and many more months before any big policy changes start impacting the federal prison population. 

A few recent prior related posts:

March 14, 2021 in Criminal justice in the Biden Administration, Criminal justice in the Obama Administration, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)