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April 3, 2021

Detailing "perfect storm" of factors that may account for increase in violent crime

CNN has this lengthy new piece about the modern violent crime increase under the headline "The US saw significant crime rise across major cities in 2020. And it's not letting up." Here is how it gets started:

Major American cities saw a 33% increase in homicides last year as a pandemic swept across the country, millions of people joined protests against racial injustice and police brutality, and the economy collapsed under the weight of the pandemic — a crime surge that has continued into the first quarter of this year.

Sixty-three of the 66 largest police jurisdictions saw increases in at least one category of violent crimes in 2020, which include homicide, rape, robbery, and aggravated assault, according to a report produced by the Major Cities Chiefs Association. Baltimore City, Baltimore County and Raleigh, North Carolina, did not report increases in any of the violent crime categories.

It's nearly impossible to attribute any year-to-year change in violent crime statistics to any single factor, and homicides and shootings are an intensely local phenomenon that can spike for dozens of reasons. But the increase in homicide rates across the country is both historic and far-reaching, as were the pandemic and social movements that touched every part of society last year.

"The people in our communities are not desensitized to violence," said Ray Kelly, the lead community liaison for the Consent Decree Monitoring Team and the director of the Citizens Policing Project and lifelong resident of West Baltimore . "Every incidence of violence potentially destroys families, and we cannot confuse people's perseverance and willingness to survive as tolerance or complacency."

Experts point to a "perfect storm" of factors -- economic collapse, social anxiety because of a pandemic, de-policing in major cities after protests that called for abolition of police departments, shifts in police resources from neighborhoods to downtown areas because of those protests, and the release of criminal defendants pretrial or before sentences were completed to reduce risk of Covid-19 spread in jails -- all may have contributed to the spike in homicides.

April 3, 2021 in National and State Crime Data | Permalink | Comments (0)

"Science and the Eighth Amendment"

The title of this post is the title of this book chapter by Meghan Ryan just made available via SSRN.  Here is its abstract:

As time hurtles forward, new science constantly emerges, and many scientific fields can shed light on whether a punishment is unconstitutionally cruel and unusual, or even on whether bail or fines are unconstitutionally excessive under the Eighth Amendment.  In fact, in recent years, science has played an increasingly important role in the Court’s Eighth Amendment jurisprudence.  From the development of an offender’s brain, to the composition of lethal injection drugs, even to measurements of pain, knowledge of various scientific fields is becoming central to understanding whether a punishment is unconstitutionally cruel and unusual. 

There are a number of limits to how the Court can weave science into its decisions, though.  For example, relevant data are difficult to come by, as ethical limitations prevent a wide swath of focused research that could be useful in this arena.  Further, the Justices’ understandings of the complicated science that can help inform their Eighth Amendment decisions are limited.  This chapter examines the relevance and limitations of science — both physical and social — in Eighth Amendment analyses.

April 3, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

April 2, 2021

ONDCP releases "Biden-Harris Administration’s Statement of Drug Policy Priorities for Year One"

The Executive Office of The President Office Of National Drug Control Policy yesterday released this detailed 11-page document titled "The Biden-Harris Administration’s Statement of Drug Policy Priorities for Year One."  For folks interesting in the potential future of the drug war at the federal level, the document makes for an interesting read.  Here is how it gets started (endnotes omitted):

The overdose and addiction crisis has taken a heartbreaking toll on far too many Americans and their families.  Since 2015, overdose death numbers have risen 35 percent, reaching a historic high of 70,630 deaths in 2019.  This is a greater rate of increase than for any other type of injury death in the United States.  Though illicitly manufactured fentanyl and synthetic opioids other than methadone (SOOTM) have been the primary driver behind the increase, overdose deaths involving cocaine and other psychostimulants, like methamphetamine, have also risen in recent years, particularly in combination with SOOTM.  New data suggest that COVID-19 has exacerbated the epidemic, and increases in overdose mortality6 have underscored systemic inequities in our nation’s approach to criminal justice and prevention, treatment, and recovery.

President Biden has made clear that addressing the overdose and addiction epidemic is an urgent priority for his administration.  In March, the President signed into law the American Rescue Plan, which appropriated nearly $4 billion to enable the Substance Abuse and Mental Health Services Administration and the Health Resources and Services Administration to expand access to vital behavioral health services.  President Biden has also said that people should not be incarcerated for drug use but should be offered treatment instead.  The President has also emphasized the need to eradicate racial, gender, and economic inequities that currently exist in the criminal justice system.

These drug policy priorities — statutorily due to Congress by April 1st of an inaugural year — take a bold approach to reducing overdoses and saving lives.  The priorities provide guideposts to ensure that the federal government promotes evidence-based public health and public safety interventions.  The priorities also emphasize several cross-cutting facets of the epidemic, namely by focusing on ensuring racial equity in drug policy and promoting harm-reduction efforts.  The priorities are:

  • Expanding access to evidence-based treatment;
  • Advancing racial equity issues in our approach to drug policy;
  • Enhancing evidence-based harm reduction efforts;
  • Supporting evidence-based prevention efforts to reduce youth substance use;
  • Reducing the supply of illicit substances;
  • Advancing recovery-ready workplaces and expanding the addiction workforce; and
  • Expanding access to recovery support services.

ONDCP will work closely with other White House components, agencies and Congress to meet these priorities.  ONDCP will also work closely with State, local, and Tribal governments, especially around efforts to ensure that opioid lawsuit settlement funds are used on programs that strengthen the nation’s approach to addiction.

April 2, 2021 in Criminal justice in the Biden Administration, Criminal Sentences Alternatives, Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

April 1, 2021

Tenth Circuit issues another notable ruling on federal compassionate release authority after the FIRST STEP Act

I flagged here earlier this week the notable Tenth Circuit opinion regarding compassionate release authority after the FIRST STEP Act in US v. McGee, No. 20-5047 (10th Cir. Mar. 29, 2021) (available here).  A helpful reader made sure I did not miss a similar ruling also from the Tenth Circuit today in US v. Maumau, No. 20-4056 (10th Cir. April 1, 2021) (available here).  The Maumau name may sound familiar because, as noted here, the district court ruled "that the changes in how § 924(c) sentences are calculated" after the FIRST STEP Act could help serve as a "compelling and extraordinary reason" to justify resentencing.  The Tenth Circuit today affirms that ruling today in an extended opinion that makes these points at the end of the opinion:

In its third and final issue, the government argues that, “[i]n addition to the controlling [statutory] texts, the relevant legislative history and the structure of the sentencing system also show that a court cannot use the compassionate release statute to override a mandatory sentence based on the court’s disagreement with the required length” of such a sentence.  Aplt. Br. at 39-40.  The underlying premise of this argument is that the district court in the case at hand granted relief to Maumau based upon its disagreement with the length of his statutory sentence.

We reject the government’s argument because its underlying premise is incorrect.  Nothing in the district court’s decision indicates that the district court granted relief to Maumau based upon its general disagreement with the mandatory sentences that are required to be imposed in connection with § 924(c) convictions.  Nor was the district court’s decision based solely upon its disagreement with the length of Maumau’s sentence in particular.  Rather, the district court’s decision indicates that its finding of “extraordinary and compelling reasons” was based on its individualized review of all the circumstances of Maumau’s case and its conclusion “that a combination of factors” warranted relief, including: “Maumau’s young age at the time of” sentencing; the “incredible” length of his stacked mandatory sentences under § 924(c); the First Step Act’s elimination of sentence-stacking under § 924(c); and the fact that Maumau, “if sentenced today, . . . would not be subject to such a long term of imprisonment.”

A few of many, many prior related posts:

April 1, 2021 in FIRST STEP Act and its implementation, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

CCJ's National Commission on COVID-19 and Criminal Justice releases "Impact Report: COVID-19 Testing in State Prisons"

noted here some months ago that the Council on Criminal Justice (CCJ) had launched an important, timely and impressive new commission titled the "National Commission on COVID-19 and Criminal Justice" and headed by two former US Attorneys General.  That commission has already helped produce a number of important works (examples here and here and here), and I see that it released today this notable new report on COVID testing in prisons.  Here are the highlights as set forth in the relatively short report (with emphasis in original):

Highlights

+ As of February 16, 2021, one of every three prisoners in 32 states with available testing data tested positive for COVID-19 — more than four times the rate outside of prisons.  Additionally, the COVID-19 death rate inside prisons is more than three times the community rate.

+ There was substantial variation across state prison systems in testing rates. Of the 32 states, three had testing rates of 1,000 per 1,000 individuals incarcerated, or lower (less than one test per person), while six had rates of 10,000 or higher (10 or more tests per individual).

+ Higher testing rates and, in particular, mass testing, especially in states that implemented this strategy early in the pandemic, likely resulted in lower rates of COVID-19 mortality behind bars. It is possible that early detection of coronavirus infections led to more and better prevention and treatment measures that improved outcomes.

  • States with lower disparities between prison and community death rates tested prison residents at rates that were nearly double those of states with higher prison/community disparities.  Positivity rates for lower-disparity states were almost half as high.
  • States that did not use a mass-testing strategy for their incarcerated populations had COVID-19 death rates among incarcerated people that were nearly eight times the death rate for non-incarcerated populations similar in age, gender, and race/ethnicity.  This disparity was cut in half in states that implemented a mass testing strategy.

+ Four states that carried out mass testing — Colorado, Connecticut, Michigan, and Vermont — varied in their specific protocols but had relatively good COVID-19 outcomes compared to other state prison systems.

+ Taken together, the evidence suggests that more testing, early testing, and early mass testing may have been strategies that helped states achieve lower rates of COVID-19 mortality behind bars, although causality cannot be conclusively established.

April 1, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

"Who Controls Criminal Law? Racial Threat and the Adoption of State Sentencing Law, 1975 to 2012"

The title of this post is the title of this interesting article published in the American Sociological Review earlier this year that I just came across. This research was authored by Scott Duxbury, and here is its abstract:

Threat theory argues that states toughen criminal laws to repress the competitive power of large minority groups.  Yet, research on threat suffers from a poor understanding of why minority group size contributes to social control and a lack of evidence on whether criminal law is uniquely responsive to the political interests of majority racial groups at all.  By compiling a unique state-level dataset on 230 sentencing policy changes during mass incarceration and using data from 257,362 responses to 79 national surveys to construct new state-level measures of racial differences in punitive policy support, I evaluate whether criminal sentencing law is uniquely responsive to white public policy interests.  Pooled event history models and mediation analyses support three primary conclusions: (1) states adopted new sentencing policies as a nonlinear response to minority group size, (2) sentencing policies were adopted in response to white public, but not black public, support for punitive crime policy, and (3) minority group size and race-specific homicide victimization both indirectly affect sentencing policy by increasing white public punitive policy support.  These findings support key theoretical propositions for the threat explanation of legal change and identify white public policy opinion as a mechanism linking minority group size to variation in criminal law.

April 1, 2021 in Race, Class, and Gender, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Notably split Sixth Circuit panel finds way-above guideline felon-in-possession sentence to be substantively unreasonable

Earlier this week, a Sixth Circuit panel handed down a split (unpublished) opinion finding an above-guideline sentence substantively unreasonable in US v. Stanton, No. 20-5320 (6th Cir. Mar. 30, 2021) (available here).  Any and every circuit ruling that finds a sentence substantively unreasonable is quite notable because such opinions are quite rare — for example, USSC data shows only six such reversals in Fiscal Year 2019 and only eight such reversals in Fiscal Year 2020.  (Indeed, with this Sixth Circuit Stanton ruling finding an above-guideline sentence substantively unreasonable handed down on the same day that the Fourth Circuit found a within-guideline sentence substantively unreasonable in Freeman (discussed here, opinion here), one might be tempted to remember March 30, 2021 as an historic day for reasonableness review.)

The majority and dissenting opinions in Stanton are worth full reads, and here is how the majority opinion gets started and wraps up:

Dustin Stanton challenges his 108-month sentence for one count of unlawful possession of a firearm as substantively unreasonable.  Stanton argues that the district court did not provide sufficiently compelling reasons to justify nearly tripling his maximum guideline sentence of 37 months.  We agree.

In sum, based on the reasons it provided at sentencing, the district court “placed too much weight on the § 3553(a) factors concerning criminal history [and] deterrence . . . without properly considering sentencing disparities.”  See Perez-Rodriguez, 960 F.3d at 758. “By ‘relying on a problem common to all’ defendants within the same criminal history category as [Stanton]—that is, that they have an extensive criminal history — the district court did not give a sufficiently compelling reason to justify [its extreme variance].” Warren, 771 F. App’x at 642 (quoting United States v. Poynter, 495 F.3d 349, 354 (6th Cir. 2007)).  Though Stanton’s continued recidivism and his previous 84-month sentence for the same crime may ultimately warrant an upward variance, they are not — without more — sufficiently compelling justifications for nearly tripling his maximum guideline sentence for a mine-run offense.  See Boucher, 937 F.3d at 714 (vacating sentence as substantively unreasonable and noting that “after the district court reweighs the relevant § 3553(a) factors” the defendant “may or may not be entitled to a” variance).

And here is how Judge Thapar starts and ends his dissent:

District judges are not at liberty to turn a blind eye to reality at sentencing.  Instead, the sentencing factors in the United States Code require judges to consider the real-world consequences of a prison term.  Will the sentence protect the public?  Will it deter the defendant?  What does a defendant’s criminal history tell the court about his likelihood of recidivism?  Are there positive factors that might cut the other way?  The sentencing guidelines help answer these questions.  But district judges understand better than most that the guidelines are not binding for a reason: They don’t fit every case.  Especially one like Dustin Stanton’s.  Here, a conscientious district judge had a violent, repeat offender in front of him.  The last time Stanton was in federal court, Judge Waverly Crenshaw’s colleague sentenced him to 84 months.  Barely a year after his release, Stanton was back — as violent as ever, and for the same offense.  So Judge Crenshaw did what good judges do.  He balanced the sentencing factors and came up with a fair sentence: 108 months.  I respectfully dissent from making him do it again....

Fair sentencing is a key goal of our criminal justice system. The sentencing guidelines help further that goal. Still, district judges must exercise independent judgment when imposing a sentence. Sometimes the reality of a case justifies a variance downward. Sometimes, it justifies the opposite. Here, Judge Crenshaw decided that Stanton’s case called for an upward variance. That decision was reasonable. Thus, I respectfully dissent.

April 1, 2021 in Booker in district courts, Booker in the Circuits, Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

March 31, 2021

Rounding up some (not-qute) mid-week reads

I have seen a lot of blog-worthy stories in recent days, not all of which are from this week, but all of which are worth checking out:

From CNN, "Baltimore will no longer prosecute drug possession, prostitution and other low-level offenses"

From The Hill, "Biden urges leniency for harsh crack sentences fueled by his crime bill"

From NBC News, "Texas woman sentenced to five years for trying to vote gets new appeal"

From NPR, "When It Comes To Email, Some Prisoners Say Attorney-Client Privilege Has Been Erased"

From Reason, "They Served Their Sentences. Now They Want To Know When They Can Go Home. Programs that keep sex offenders indefinitely confined face new challenges."

From USA Today, "Orrin Hatch: Resolving hardships for children, families key to criminal justice reform"

March 31, 2021 in Recommended reading | Permalink | Comments (1)

Might we be getting closer to (needed) new nominees for the "frozen" US Sentencing Commission?

I was so excited to see Prez Biden announce his first slate of judicial nominations in part because I have been presuming that we would not get needed nomination to the US Sentencing Commission until at least some judge nominees were first put forward.  (Ever the fan of semantic technicalities, I think we should also call any nomination to the USSC to be "judicial nominees" given that the USSC is the only agency located in the judicial branch.)  Adding to my excitement is this recent Roll Call article suggesting that nominations are in the works and may be able to be advanced quickly through Congress in a bipartisan manner.  I recommend the lengthy Roll Call article in full, and its full title highlights its themes: "Help wanted: Revived commission could spark criminal justice changes: Key judicial agency hasn’t had enough members to function for years." Here are excerpts:

The judicial agency that sets such policies hasn’t had enough members to function for years.  “What’s happened is, we’re frozen in time,” said Senior U.S. District Judge Charles R. Breyer, the lone remaining member of the seven-person U.S. Sentencing Commission.

That could soon change.  The Biden administration has reached out to key lawmakers and the criminal justice community for guidance on a slate of appointments to revive the sentencing commission, a move that also could influence congressional efforts to further change the nation’s criminal justice system.

President Joe Biden will make those picks against the backdrop of a simmering debate about fairness in the nation’s criminal justice system, after a summer of social unrest related to police misconduct sparked a focus on racial inequity in the criminal justice system more broadly.  Advocates say sentencing is a crucial consideration when it comes to overhaul.  A bipartisan group of senators on Friday reintroduced a broad sentencing overhaul bill, which includes provisions that direct the sentencing commission to act to implement it....

The commission must include two additional federal judges, and no more than four members can be from the same political party.  The Senate must approve the members.  The last confirmation vote was for Breyer’s reappointment, four years ago this month, at the beginning of Donald Trump’s presidency.  Breyer is the brother of Supreme Court Justice Stephen G. Breyer, and his term on the commission expires in October.

Trump made nominations for the sentencing commission, including two federal judges with reputations for tough-on-crime approaches.  But those nominees went nowhere because they raised concerns from civil rights groups, Senate Democrats and Iowa Republican Sen. Charles E. Grassley about whether those members would carry out the changes in the 2018 law known as the First Step Act.  Grassley, when he was chairman of the Judiciary Committee, championed the bill with now-Chair Richard J. Durbin of Illinois.  The Senate passed the bill, 87-12, and it became one of Congress’ few major bipartisan accomplishments in recent years.

Grassley said this week that he has had conversations that indicate the Biden administration is working to avoid Senate confirmation problems for a slate of nominees to the sentencing commission “because both they — the White House —and this senator, and I’m sure a lot of other senators, want to get the commission up and running so it can do its work.”

Durbin said in a written response to questions that the commission “can play a vital role in sentencing reform by informing Congress about federal sentencing developments.” But he also hinted at broader aims for the commission. “For too long, federal sentencing policies have had a disparate impact on Black and brown Americans,” Durbin said. “Our sentencing policies have to reflect fairer standards.”...

Breyer said the Judicial Conference is currently considering a list of judges to submit to the White House for consideration, and he anticipates that the White House will put forward a slate of six nominees.  Until then, he said, “I think we’re in crisis.” The sentencing structure was designed to change over time and be guided by experience, he said.  “And it’s an understandable tendency that if the guidelines don’t reflect reality that they’re ignored or given less weight,” Breyer added.  

A few prior recent related posts:

March 31, 2021 in Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)

"Judging by the Cover: On the Relationship Between Media Coverage on Crime and Harshness in Sentencing"

The title of this post is the title of of this notable paper recently posted to SSRN authored by Itay Ravid. Here is its abstract:

Does the mass media affect judicial decisionmaking?  This first of its kind empirical study delves into this long-lasting question, and investigates the relationship between media coverage of crime and criminal sentencing.  To do so, I construct a novel data set of media reports on crime, which I link to administrative state court sentencing records. The data span five years and more than forty-three thousand sentencing decisions across three jurisdictions that differ in their judicial selection models: Pennsylvania, Maryland, and Virginia. 

I find that crime coverage increases sentencing harshness. I also find evidence to suggest that this effect is mitigated through a state’s method of judicial selection.  The findings go beyond traditional, case-study scholarship on the nexus between the media and the judiciary, offering evidence that the media can affect judicial decisionmaking in broader contexts.  These findings hold significant implications for policy and judicial politics and raise questions at the core of the criminal justice system.  Particularly, they call for renewed attention to the media as an important factor in the criminal process and a potential obstacle towards achieving the constitutional ideal of fair trials.  The Article concludes by suggesting methods for countering such media effects.

March 31, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

March 30, 2021

Fascinating split Fourth Circuit ruling finds lawyer ineffective and 210-month sentence substantively unreasonable for addicted opioid distributor

A helpful reader made sure I did not miss an amazingly interesting split Fourth Circuit panel ruling today in US v. Freeman, No. 19-4104 (4th Cir. Mar. 30, 2021) (available here).  I recommend the entire lengthy decision, which could probably serves as a foundation for a dozen federal sentencing classes because of all the issues raised, both directly and indirectly, by the case.  Here is the start and a few key parts of the 21-page majority opinion authored by Judge Gregory:

Precias Freeman broke her tailbone as a teenager, was prescribed opioids, and has been addicted to the drugs ever since. In 2018, she was sentenced to serve more than 17 years in prison for possession with intent to distribute hydrocodone and oxycodone in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). After Freeman’s appointed counsel initially submitted an Anders brief asking for the Court’s assistance in identifying any appealable issues, we directed counsel to brief whether Freeman’s sentence is substantively reasonable and whether Freeman received ineffective assistance of counsel on the face of the record. On both grounds, we vacate Freeman’s sentence and remand this case for resentencing....

Because Freeman’s counsel unreasonably failed to argue meritorious objections [to the presentence report's guideline calculations] and advised his client to waive those objections without understanding the gravity of that waiver — and because those objections would have resulted in a reduction of the Guidelines range applicable to Freeman’s sentence — counsel was constitutionally ineffective....

In sentencing Freeman to serve 210 months, the district court did not address sentencing disparities nor fully consider the history and circumstances of the defendant in relation to the extreme length of her sentence. With regard to sentencing disparities, counsel provides this Court with data obtained from the United States Sentencing Commission’s 2018 Sourcebook of Federal Sentencing Statistics tending to show that Freeman’s sentence is significantly longer than those of similarly-situated defendants...

Based on the disparity between her sentence and those of similar defendants, and on the overwhelming record evidence of Freeman’s addiction to opioids, we conclude that Freeman has rebutted the presumption of reasonableness and established that her sentence is substantively unreasonable.  To the extent that the court referenced the danger of opioids in sentencing Freeman, it was only to condemn Freeman for selling them.  While this was certainly not an improper factor for the district court to consider, it also does not reflect the full picture.  And although the district court stated that Freeman was “no doubt a major supplier” of hydrocodone, it failed to consider that the amount that Freeman sold was frequently no more than half of what she was taking herself.

Judge Quattlebaum's dissent runs 26 pages and it includes some scatter plots! It starts and ends this way:

This sad case illustrates the opioid epidemic ravaging our country.  Precias Freeman is a victim of this epidemic.  As a teenager, she succumbed to the highly addictive nature of opioids in a way that continues to wreak havoc on her life.  As a fellow citizen, I am heartbroken over the toll her addiction has levied.  But Freeman chose to be a culprit too.  By her own admission, she prolifically forged prescriptions to obtain opioids for years — not just for herself, but to sell to others.  Whatever role her addiction played, that conduct was plainly criminal and certainly not bereft of “victims.” Maj. Op. at 21. Thus, today, we consider the sentence she received after pleading guilty of possession with intent to distribute two opioids, Hydrocodone and Oxycodone.  The majority vacates Freeman’s sentence for two reasons.  It concludes that the sentence was substantively unreasonable and that Freeman received ineffective assistance of counsel. Both holdings are unprecedented in our circuit....

I have great sympathy for Freeman’s circumstances. Her story reflects failures in our community.  One could argue her sentence does not reflect sound policy. But that does not make it unreasonable under the law.  And while the record is concerning regarding the effectiveness of counsel Freeman received, it does not conclusively demonstrate a failure to meet the constitutional bar at this juncture.  I dissent.

For a host of reasons, I hope the Justice Department has the good sense not to seek en banc review and that resentencing, rather than further costly litigation over a suspect and long prison term, is the next chapter is this all-too-common variation on the modern story of the opioid epidemic.

March 30, 2021 in Booker in the Circuits, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

"Many Capitol rioters unlikely to serve jail time" because some facing only misdemeanor convictions

The quoted title of this post is the lead headline of this lengthy and detailed Politico discussion of some of the case processing realities surrounding the on-going federal prosecutions of persons involved in the insurrection on January 6, 2021.  I recommend the piece in full, and here are excerpts:

Americans outraged by the storming of Capitol Hill are in for a jarring reality check: Many of those who invaded the halls of Congress on Jan. 6 are likely to get little or no jail time.  While public and media attention in recent weeks has been focused on high-profile conspiracy cases against right-wing, paramilitary groups like the Oath Keepers and the Proud Boys, the most urgent decisions for prosecutors involve resolving scores of lower-level cases that have clogged D.C.’s federal district court.

A POLITICO analysis of the Capitol riot-related cases shows that almost a quarter of the more than 230 defendants formally and publicly charged so far face only misdemeanors. Dozens of those arrested are awaiting formal charges, even as new cases are being unsealed nearly every day. In recent days, judges, prosecutors and defense attorneys have all indicated that they expect few of these “MAGA tourists” to face harsh sentences.

There are two main reasons: Although prosecutors have loaded up their charging documents with language about the existential threat of the insurrection to the republic, the actions of many of the individual rioters often boiled down to trespassing.  And judges have wrestled with how aggressively to lump those cases in with those of the more sinister suspects. “My bet is a lot of these cases will get resolved and probably without prison time or jail time,” said Erica Hashimoto, a former federal public defender who is now a law professor at Georgetown....

The resolution of the more mundane cases also presents acute questions about equity, since most of the Capitol riot defendants are white, while misdemeanor charges are often a vexing problem for minority defendants in other cases.  There are also sensitive issues about precedent for the future, given the frequency of politically inspired demonstrations on Capitol Hill that run afoul of the law....

Prosecutors have signaled that plea offers for some defendants will be coming within days and have readily acknowledged that some of the cases are less complicated to resolve than others. “I think we can work out a non-trial disposition in this case,” Assistant U.S. Attorney Emory Cole told Judge Dabney Friedrich last week in the case of Kevin Loftus, who was charged with unlawful presence and disrupting official business at the Capitol, among other offenses that have become the boilerplate set lodged against anyone who walked into the building that day without authorization.

The Justice Department will soon be in the awkward position of having to defend such deals, even as trials and lengthy sentences for those facing more serious charges could be a year or more away....

Former federal prosecutor Paul Butler said he hopes that those most troubled by the Capitol riot won’t recoil at the looming deals for many participants. “The punishment has to be proportional to the harm, but I think for many of us, we’ll never forget watching TV Jan. 6 and seeing people wilding out in the Capitol,” said Butler, now a law professor at Georgetown. “Everybody who was there was complicit, but they’re not all complicit to the same degree for the same harm.”

A standard set of four misdemeanor charges prosecutors have been filed in dozens of the Capitol cases carries a maximum possible punishment of three years in prison.  But that sentence or anything close to it is virtually unheard of in misdemeanor cases, lawyers said.  “Nobody goes to jail for a first or second misdemeanor,” Butler said flatly....

In virtually all the non-felony cases, the charges are likely to be grouped together as trespassing under federal sentencing guidelines.  While those guidelines contain a small enhancement for entering a “restricted” building or grounds, defendants with no significant criminal history are looking at the lowest possible range: zero to six months. “Zero” months means no jail at all....

Another factor prosecutors and judges may weigh is that the treatment of misdemeanors by the justice system is currently the subject of intense attention in criminal justice reform circles. Reformers say such minor charges often cause major complications in the lives of the minority defendants who typically face them. “A lot of Black or brown people, they don’t get the benefit of individual judgment or breaks,” said Butler.  “I think this will be a record number of white people who appear in federal criminal court in D.C….If they’re receiving mercy, the prosecutor’s office should make sure that same mercy will be applied to all the other people who they prosecute, who are mainly people of color and low-income people.”

The former prosecutor said he hopes the high-profile Capitol prosecutions call attention to the underlying equity issues and to the fact that the vast majority of federal cases are resolved not through trials but the plea negotiations that are about to begin. “This could be a teachable moment here for the public,” Butler said.

I have highlighted lots of quotes by Prof Butler here because I share he view that these cases present an important "teachable moment," and because I hope persons who support criminal justice reform and who are troubled by modern mass incarceration will not be unduly critical of non-carceral outcomes for lower-level offenders even in this high-profile crime.  In addition to this "mass crime" helping to teach that prison time is not essential for any and every offender, these cases may be able to spotlight how disruptive a prosecution and non-carceral punishment can prove to be for defendants.  I surmise many of the lower-level defendants here have already endured a lot of formal and informal punitive consequences from their indictment, and they will continue to face all sorts of formal and informal consequences after any convictions.  Even defendants who get probation, I would guess, will not be eager to brag that they only suffered a "slap on the wrist" and perhaps some will even be usefully vocal about how much punishment the criminal justice process itself produces even if no jail time is imposed.

March 30, 2021 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Four notable new short reports on prison populations from the Bureau of Justice Statistics

I received this press release this morning pointing me to a number of new notable publications. Here is the text of the release, with links to the materials:

The Department of Justice’s Bureau of Justice Statistics today released Time Served in State Prison, 2018.  This report presents findings on the time served by prisoners released from state prison in 2018, including the length of time served by most serious offense and the percentage of sentence served.  Findings are based on data from BJS’s National Corrections Reporting Program, which is an annual voluntary data collection of records on prisoners submitted by state departments of corrections.

BJS also released three briefs: Veterans in Prison, Parents in Prison and Their Minor Children, and Disabilities Reported by Prisoners. The brief on veterans describes their demographics, offenses, sentence length, military branch and combat experience.  The brief on parents provides demographic information about prisoners who have at least one minor child and the number of minor children reported by parents in prison.  The brief on disabilities details statistics about demographics and types of disabilities reported by prisoners.  The findings are based on data collected in the 2016 Survey of Prison Inmates, a survey conducted through face-to-face interviews with a sample of state and federal prisoners.

Time Served in State Prison, 2018 (NCJ 255662) by BJS Statistician Danielle Kaeble

Veterans in Prison: Survey of Prison Inmates, 2016 (NCJ 252646) by BJS Statisticians Laura M. Maruschak, Jennifer Bronson, Ph.D. (former) and Mariel Alper, Ph.D. (former)

Parents in Prison and Their Minor Children: Survey of Prison Inmates, 2016 (NCJ 252645) by BJS Statisticians Laura M. Maruschak, Jennifer Bronson, Ph.D. (former) and Mariel Alper, Ph.D. (former)

Disabilities Reported by Prisoners: Survey of Prison Inmates, 2016 (NCJ 252642) by BJS Statisticians Laura M. Maruschak, Jennifer Bronson, Ph.D. (former) and Mariel Alper, Ph.D. (former)

The Bureau of Justice Statistics of the U.S. Department of Justice is the principal federal agency responsible for collecting, analyzing and disseminating reliable statistics on crime and criminal justice in the United States. Doris J. James is the acting director.

March 30, 2021 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Tenth Circuit becomes the latest circuit to embrace a robust view of sentence reduction authority under 3582(c)(1)(A) after FIRST STEP Act

I was pleased to see late yesterday another important circuit ruling on the reach and application of the compassionate release provisions amended by the federal FIRST STEP Act.  As regular readers know, in lots of (pre-COVID) prior posts, I made much of the provision of the FIRST STEP Act allowing federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  I have long considered this provision a big deal because, if applied appropriately and robustly, it could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced on a variety of grounds. 

The Second Circuit back in September was the first circuit to rule in Zullo/Brooker, quite rightly in my view, that district courts have now broad discretion to consider "any extraordinary and compelling reason for release that a defendant might raise" to justify a sentence reduction under 3582(c)(1)(A).  Not long thereafter, the Fourth, Sixth, and Seventh Circuits issued somewhat similar opinions generally recognizing that district courts now have broad authority after the FIRST STEP Act to determine whether and when "extraordinary and compelling" reasons may justify a sentence reduction when an imprisoned person files a 3582(c)(1)(A) motion.  Yesterday, the Tenth Circuit joined the fun with its extended panel opinion in US v. McGee, No. 20-5047 (10th Cir. Mar. 29, 2021) (available here).  Here is how this opinion gets started:

In November 2000, defendant Malcom McGee was convicted by a jury of three criminal counts: (1) conspiracy to possess with intent to distribute one kilogram or more of a mixture of substance containing a detectable amount of PCP, in violation of 21 U.S.C. § 846; (2) causing another person to possess with intent to distribute in excess of one kilogram of a mixture or substance containing a detectable amount of PCP, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iv), and 18 U.S.C. § 2(b); and (3) using a communication facility to commit and facilitate the commission of a felony, in violation of 21 U.S.C. § 843(b).  Because McGee had previously been convicted in the State of California of two felony drug offenses, the district court sentenced McGee to a mandatory term of life imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A).

Following Congress’s enactment of the First Step Act of 2018 (First Step Act) and the changes the First Step Act made to both § 841(b)(1)(A) and 18 U.S.C. § 3582(c)(1)(A), McGee filed a motion with the district court pursuant to § 3582(c)(1)(A)(i) to reduce his sentence based on “extraordinary and compelling reasons.”  The district court denied that motion.  McGee now appeals.  Exercising jurisdiction pursuant to 28 U.S.C. § 2241, we reverse and remand to the district court for further consideration of McGee’s motion.

Though there are various elements to the McGee ruling, I was especially glad to see the panel explain effectively why it was improper for the district court to decide it could not grant a sentence reduction simply because Congress has not (yet) decided to make the sentencing changes in the FIRST STEP Act fully retroactive.  Here is part of the court's discussion on this point (emphasis in the original):

The plain text of § 401(c) of the First Step Act makes clear that Congress chose not to afford relief to all defendants who, prior to the First Step Act, were sentenced to mandatory life imprisonment under § 841(b)(1)(A).  But nothing in § 401(c) or any other part of the First Step Act indicates that Congress intended to prohibit district courts, on an individualized, case-by-case basis, from granting sentence reductions under § 3582(c)(1)(A)(i) to some of those defendants.  Indeed, as the Fourth Circuit noted in McCoy, Congress’s purpose in enacting § 3582(c)(1)(A) was to provide a narrow avenue for relief “when there is not a specific statute that already affords relief but ‘extraordinary and compelling reasons’ nevertheless justify a [sentence] reduction.” Id. at 287 (emphasis in original).  Thus, the possibility of a district court finding the existence of “extraordinary and compelling reasons” based, in part, on a defendant’s pre-First Step Act mandatory life sentence under § 841(b)(1)(A) does not, in our view, necessarily usurp Congressional power.

A few of many, many prior related posts:

March 30, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Prez Biden announces his first group of judicial nominees reflecting diverse backgrounds

As partially detailed in this CBS News piece, headlined "Biden announces first slate of judicial nominees with picks that would make history," Prez Joe Biden has formally announced a first set of planned nominations for judicial openings. Here are basics: 

President Biden on Tuesday rolled out his first slate of judicial nominees, announcing candidates with diverse backgrounds and professional qualifications as he begins to make his own stamp on the nation's district and circuit courts. Of the president's 11 judicial picks, three set to be nominated to the federal district courts would make history if confirmed by the evenly divided the Senate. The White House said the candidates underscore Mr. Biden's commitment to diversity on the federal bench.

"This trailblazing slate of nominees draws from the very best and brightest minds of the American legal profession," Mr. Biden, a former chairman of the Senate Judiciary Committee, said in a statement. "Each is deeply qualified and prepared to deliver justice faithfully under our Constitution and impartially to the American people — and together they represent the broad diversity of background, experience, and perspective that makes our nation strong."

The president intends to nominate three Black women to fill vacancies on a trio of circuit courts: Judge Ketanji Brown Jackson to the U.S. Court of Appeals to the District of Columbia Circuit; Tiffany Cunningham to the U.S. Court of Appeals to the Federal Circuit; and Candace Jackson-Akiwumi to the 7th U.S. Circuit Court of Appeals....

In addition to announcing nominees to the circuit courts, Mr. Biden also revealed his candidates to fill open seats on federal district courts in Maryland, New Jersey, the District of Columbia and New Mexico, as well as the Superior Court of the District of Columbia.

Three of Mr. Biden's nominees to the district courts would make history if confirmed by the Senate: Judge Zahid Quraishi, tapped for the district court in New Jersey, would be the first Muslim-American federal judge; Judge Florence Pan would be the first Asian-American woman on the district court in D.C.; and Judge Lydia Griggsby would be the first woman of color to serve as a federal judge in Maryland.

With 72 vacancies on the federal courts and another 28 seats set to become open in the coming weeks and months, Mr. Biden has been under pressure to prioritize judicial nominees and mount his own effort to reshape the federal bench after former President Donald Trump succeeded in appointing more than 230 judges to the courts, most of them white men. The president has also been pushed by progressive groups to select nominees with not only diverse backgrounds, but also an array of legal experience, including public defenders, civil rights lawyers and legal aid attorneys.

The full list of the nominees is available via this White House press release.  The nine women and two men on this list seem to represent an array of diverse professional histories as well as personal backgrounds (e.g., I count ten different law schools represented).  Long-time readers know I have been a long-time fan of Judge Ketanji Brown Jackson, in part because she served on the US Sentencing Commission and was once a federal public defender.  I was not surprised at all to see her name on this list, and it is great to see a good number of additional nominees with significant public defender histories (Judges Jackson-Akiwumi and Boardman, Margaret Strickland). And I was pleasantly suprised to see the list include someone I attended high school with (Judge Griggsby) and a fairly recent graduate of The Oho State University Moritz College of Law (Judge Puttagunta). 

March 30, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (0)

March 29, 2021

NY Supreme Court finds that excluding incarcerated people in New York from vaccine access is "arbitrary and capricious and violates Equal Protection"

A state judge in New York Supreme Court ruled today that New York violated the constitutional rights of incarcerated people by refusing to offer them COVID-19 vaccines at the same time it was offered to other groups in congregate settings. In Holden v. Zucker, No. 801592/2021E (N.Y. S. Ct. Mar. 29, 2021) (available here), the judge ordered that every incarcerated person in the state be made eligible for the vaccine immediately, and here is part of her discussion:

In all material respects, incarcerated adults face the same heightened risk of infection, serious illness, and death, as people living in other congregate settings, and even more so than juveniles in detention centers, where individuals have been prioritized for the vaccine.  Moreover, CDC has recommended those confined in jails and prisons should be vaccinated at the same time as those working in the very same facilities.  However, Respondents have excluded those confined in prisons and jails from the COVID-19 vaccine, while granting access to correctional workers, as well as those working and living in other government-run congregate facilities. This Court finds that this exclusion is by definition arbitrary and capricious and violates Equal Protection....

Respondents have irrationally distinguished between incarcerated people and people living in every other type of adult congregate facility, at great risk to incarcerated people’s lives during this pandemic, in violation of State and Federal Equal Protection guarantees, and their decision must be vacated and modified to allow incarcerated individuals as a group to access vaccine eligibility in phase 1b.  People working and living together are at exponentially heightened risk for contracting COVID-19, a virus that can cause long-term health complications and death.  In light of this, New York’s Health Commissioner and Governor Cuomo have specifically prioritized vaccinations for thousands of New Yorkers who work and live in congregate facilities that are the breeding grounds for this deadly virus.  This prioritization is consistent with the unanimous recommendations of the CDC and public health and medical experts.  Despite these scientific recommendations, Respondents have excluded individuals who are incarcerated.  There is no acceptable excuse for this deliberate exclusion as COVID-19 does not discriminate between congregate settings.

March 29, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (3)

New empirical study finds "nonprosecution of a nonviolent misdemeanor offense leads to large reductions in the likelihood of a new criminal complaint"

This local press piece from Boston reports on new local empirical work that is likely to garner a lot of attention around the nation. The press article is titled "Study finds not prosecuting misdemeanors reduces defendants’ subsequent arrests," and it discusses at length the findings in this new Working Paper (also here) titled "Misdemeanor Prosecution" authored by Amanda Agan, Jennifer Doleac and Anna Harvey. Here is the abstract of the Working Paper:

Communities across the United States are reconsidering the public safety benefits of prosecuting nonviolent misdemeanor offenses. So far there has been little empirical evidence to inform policy in this area. In this paper we report the first estimates of the causal effects of misdemeanor prosecution on defendants' subsequent criminal justice involvement. We leverage the as-if random assignment of nonviolent misdemeanor cases to Assistant District Attorneys (ADAs) who decide whether a case should move forward with prosecution in the Suffolk County District Attorney's Office in Massachusetts. These ADAs vary in the average leniency of their prosecution decisions. We find that, for the marginal defendant, nonprosecution of a nonviolent misdemeanor offense leads to large reductions in the likelihood of a new criminal complaint over the next two years. These local average treatment effects are largest for first-time defendants, suggesting that averting initial entry into the criminal justice system has the greatest benefits. We also present evidence that a recent policy change in Suffolk County imposing a presumption of nonprosecution for a set of nonviolent misdemeanor offenses had similar beneficial effects: the likelihood of future criminal justice involvement fell, with no apparent increase in local crime rates.

And here is part of the discussion from the press piece highlighting why this is research could prove so potent:

A study examining the effect of declining to prosecute lower-level nonviolent offenses — a signature policy adopted by Suffolk District Attorney Rachael Rollins that has drawn both praise and scorn — suggests the approach leads to significantly less future involvement by those defendants in the criminal justice system.

The new study, which looked at cases handled by the Suffolk County DA’s office going back to 2004, found that those defendants not prosecuted for lower-level misdemeanor cases were 58 percent less likely to face a criminal complaint over the following two years than those who faced prosecution for similar charges. 

The analysis, which is the first of its kind to rigorously evaluate a policy being embraced by reform-minded prosecutors across the country, provides striking evidence that steering defendants, particularly first-time offenders, away from prosecution and a criminal record can reduce their chances of cycling back into the legal system.

The findings, being released on Monday by the National Bureau of Economic Research, are likely to bring heightened attention to the question of how best to deal with lower-level offenses, an issue that has become a controversial topic among law enforcement officials and advocates who say prosecution of these cases exacts an enormous toll on poor and minority communities without enhancing public safety....

“We think this is pretty compelling evidence of beneficial effects from not prosecuting,” said Anna Harvey, a professor of politics at New York University, who led the research along with Amanda Agan, an economist at Rutgers University, and Jennifer Doleac, an economist at Texas A & M University.  The higher rates of new criminal complaints among those who did face prosecution for lower-level charges, on the other hand, mean “we may in fact be undermining public safety by criminalizing relatively minor forms of misbehavior,” write Harvey and her colleagues....

Alexandra Natapoff, a professor at Harvard Law School who has extensively studied the prosecution of misdemeanor offenses, said the study “gives empirical teeth to just how costly and counterproductive low-level misdemeanor arrests and court criminal convictions can be.”  Natapoff, author of the 2018 book Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal, said we have paid far too little attention to the harmful impact on individuals and communities of prosecuting misdemeanors, which account for 80 percent of all criminal cases in the US.  “These cases that we treat as chump change, in fact, are destroying lives, and destroying families, and undermining the economic wellbeing of communities thousands of times over every day,” Natapoff said in a recent video explainer on the reach of misdemeanor convictions.

Miriam Krinsky, executive director of Fair and Just Prosecution, a group formed in 2017 to work with reform-minded DAs, called the study an affirmation of the changing approach to prosecution underway in a number of major cities.  “We are seeing a new normal among elected prosecutors who, like DA Rollins, share a view that we have prosecuted too many individuals who can be better addressed by treatment or support through a public health lens,” she said.  “It’s incredibly significant to see research like this that proves the value of the new thinking and the paradigm shift that’s taking place.”

March 29, 2021 in National and State Crime Data, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Still considering cert, SCOTUS orders additional letter briefing in method-of-execution case out of Missouri

As noted here, the US Supreme Court had fully briefed last November a set of notable questions about how modern Eighth Amendment method-of-execution claims are to be properly resolved.  The Justices considered Johnson v. Precythe, No. 20-287, a case emerging from Missouri, at numerous conferences before today finally having this interesting direction on its order list:

JOHNSON, ERNEST V. PRECYTHE, ANNE L., ET AL.

The parties are directed to file supplemental letter briefs addressing the following question: Given that the District Court dismissed without prejudice, would petitioner be barred from filing a new complaint that proposes the firing squad as the alternative method of execution?  Petitioner’s brief, not to exceed 5 pages, is to be filed with the Clerk and served upon opposing counsel on or before Monday, April 12, 2021.

Respondents’ brief, not to exceed 5 pages, is to be filed with the Clerk and served upon opposing counsel on or before Monday, April 26, 2021.

Sounds like the Court may be looking for an easy way to boot this case, but perhaps folks with more experience with this intricate universe of litigation may be able to read more (or less) into this order than just that.

March 29, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

SCOTUS summarily reverses Sixth Circuit's reversal of state conviction based on ineffective assistance

The Supreme Court generally does not view itself as in the business of error correction, but it still sometimes finds a few criminal cases in which it just cannot resist fixing what looks like an incorrect ruling below.  Today's order list, for example, brings a per curiam summary reversal in Mays v. Hines, No. 20–507 (S. Ct. Mar. 29, 2021) (available here), in which the Court corrects the work of the Sixth Circuit via an eight-page opinion that starts and ends this way:

A Tennessee jury found Anthony Hines guilty of murdering Katherine Jenkins at a motel.  Witnesses saw Hines fleeing in the victim’s car and wearing a bloody shirt, and his family members heard him admit to stabbing someone at the motel.  But almost 35 years later, the Sixth Circuit held that Hines was entitled to a new trial and sentence because his attorney should have tried harder to blame another man.  In reaching its conclusion, the Sixth Circuit disregarded the overwhelming evidence of guilt that supported the contrary conclusion of a Tennessee court.  This approach plainly violated Congress’ prohibition on disturbing state-court judgments on federal habeas review absent an error that lies “‘beyond any possibility for fair-minded disagreement.’” Shinn v. Kayer, 592 U.S. ___, ___ (2020) (per curiam) (slip op., at 1); 28 U.S.C. §2254(d).  We now reverse....

The Sixth Circuit had no reason to revisit the decision of the Tennessee court, much less ignore the ample evidence supporting that court’s conclusion.  We grant the petition for a writ of certiorari and respondent’s motion to proceed in forma pauperis, and we reverse the judgment of the Court of Appeals.

Notably, Justice Sonia Sotomayor dissented from this per curiam ruling, but without any opinion, so this was technically an 8-1 error correction.

March 29, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

March 28, 2021

Senators Durbin and Grassley introduce new "First Step Implementation Act"

As detailed in this press release, on Friday "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 (FSA), introduced the bipartisan First Step Implementation Act, legislation that aims to further implement the FSA and advance its goals." Here is more from the release:

“In 2018, Congress came together to pass the most important criminal justice reform laws in a generation.  The First Step Act passed by overwhelming bipartisan majorities and was supported by a broad coalition of conservative and progressive groups alike,” Durbin said.  “I was proud to champion this landmark legislation with my friend and colleague, Senator Grassley.  Now we are committed to working together on a bipartisan basis to ensure that the First Step Act and its goals are successfully implemented.”

“Our 2018 criminal justice reforms were the most significant in a generation.  We ought to be doing all we can to ensure their proper implementation.  This new bill now also ensures we make good on the intent of the First Step Act, and further builds on the ideas that led to its passage,” Grassley said.

The First Step Implementation Act of 2021 would further the goals of the FSA by:

  • Allowing courts to apply the FSA sentencing reform provisions to reduce sentences imposed prior to the enactment of the FSA;
  • Broadening the safety valve provision to allow courts to sentence below a mandatory minimum for nonviolent controlled substance offenses, if the court finds the defendant’s criminal history over-represents the seriousness of the defendant’s criminal record and the likelihood of recidivism;
  • Allowing courts to reduce sentences imposed on juvenile offenders who have served more than 20 years;
  • Providing for the sealing or expungement of records of nonviolent juvenile offenses; and,
  • Requiring the Attorney General to establish procedures ensuring that only accurate criminal records are shared for employment-related purposes.

March 28, 2021 in FIRST STEP Act and its implementation, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Notable back-and-forth on how "conservatives" ought to respond to this moment in crime and punishment

I have put "conservatives" in quotes in this title of this post because I have never really found traditional political labels that helpful in explaining people and positions, and I sometimes find such labels can prove particularly problematic in the criminal justice arena.  In fact, it is because of these realities that I found interesting a pair of new pieces from right-leaning sources.  First, writing at City Journal, Josh Hammer has this piece titled "Recover the Moral Imperative of Law and Order: Conservatives should lead the way in moving the pendulum back toward the rule of law."  Here are excerpts:

[T]he time is ripe for a more aggressive, sustained campaign against the de-carceral, de-civilizational agenda pushed by many libertarians and progressives alike. Citizens of all political stripes, especially conservatives, must recover and publicly advocate anew the time-tested and common-sense notion that a free and just society is impossible without a robust commitment to a strictly enforced rule of law....

[A] pro-rule-of-law national campaign is now necessary.  Activists can start at the local level, getting involved in district attorney races to oppose anti-enforcement, de-carceral candidates.  Voters should punish statewide attorneys general and federal legislators alike for throwing law enforcement under the bus and focusing their ire on the “qualified immunity” legal doctrine over substantive commitments to support law enforcement.  Citizens should make themselves heard at city council meetings in support of more police officers on the beat, a proven and effective crime deterrent.  Conservative commentators must grow comfortable calling out the excesses of light-on-crime libertarianism that come from their own side of the aisle.  Republican politicians, cognizant of both the disturbing on-the-ground crime reality and the political truth that the small-government rhetorical emphasis of the Tea Party era is over, must recalibrate and shift back toward a traditional pro-law-and-order political platform.  Such a platform would be both proper and popular.

We have reached the point where the pendulum has swung too far back toward decarceration, under-prosecution, and light-on-crime policies. The moral primacy of order and public safety must take precedence over fashionable peddling of pro-criminal “bail reform” and “criminal-justice reform” initiatives. We have been here before; we know what we have to do. Now it’s time to execute the game plan.

But over at the Cato Institute blog, Clark Neily and Shon Hopwood have this response titled "To a Man With a Hammer, Every Criminal Justice Problem Looks Like a Nail." Here is the closing part of their take which questions whether Hammer is really advocating for "conservative" reforms:

[P]uzzling — particularly from a self‐​styled “common‐​good” originalist — is Hammer’s embrace of qualified immunity, a judicially confected legal doctrine specifically designed to ensure that police and other “state actors” who have been plausibly alleged to have violated people’s rights don’t have to answer for it in court.  More thoughtful conservatives, including Justices Antonin Scalia and Clarence Thomas, Judge Don Willett, and University of Chicago Law Professor Will Baude, have challenged the legitimacy of qualified immunity on originalist grounds, while scholars of all stripes have shown what an unmitigated disaster it has been for justice, accountability, and the “moral primacy of order and public safety” that Hammer himself extols in his piece.

Another surprise coming from a conservative is Hammer’s apparent disdain for democracy, at least when it involves electoral majorities choosing reform‐​minded district attorneys who entertain the heresy that it might actually be possible — as such notoriously crime‐​friendly states as Texas, Georgia and Mississippi discovered — to reduce crime rates while locking up fewer people.

The leave‐​no‐​prison‐​unfilled approach Hammer touts goes well beyond what even Jeff Sessions and William Barr implemented during their respective tenures as Attorney General. There are over 5,000 federal crimes, yet neither Sessions nor Barr tried to charge everyone who violated those statutes.  They couldn’t.  The federal criminal justice system would be overwhelmed if they did, which is why they used prosecutorial discretion the same way so‐​called “progressive” prosecutors have — to prioritize and target the worst behaviors.

Americans should be wary of enthusiastic dilettantes who think a one‐​year spike in crime rates during a global pandemic represents a civic emergency for which the only prescription is to abandon decades of progress on criminal justice reform and simply put even more people behind bars.  We tried that approach, and we learned that it doesn’t work — those of us who did our homework, anyway.

March 28, 2021 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

"Getting to Know You: An Expanded Approach to Capital Jury Selection"

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

The Colorado Method of capital jury selection is a widely-embraced strategy defense attorneys use in voir dire, in which attorneys rank each juror exclusively on the likelihood that the juror will vote for life or death.  The method has some problems.  It is not fully public.  Discussing punishment prior to guilt also predisposes juries to vote for death.  It inadequately addresses innocence cases.  Nor should we reduce jurors to their views or positions on the death penalty. 

While capital juries are already predisposed to give death sentences, scholars have determined that numerous case-specific and juror-specific factors — such as a defendant's willingness to express remorse or the juror’s views or racial experiences — significantly affect jurors’ votes.  I review research findings from the Capital Jury Project and other studies, concluding that capital defense attorneys are better served by questioning and ranking jurors on a much broader set of factors.  I propose that with more information in hand, defense attorneys can improve their ability to rank jurors and select a jury more inclined to impose a life sentence.

March 28, 2021 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)